title: Case T-204/05: Action brought on 23 May 2003 by Giorgio Lebedef and Others against Commission of the European Communities

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/34

         Action brought on 23 May 2003 by Giorgio Lebedef and Others against Commission of the European Communities
   (Case T-204/05)
   (2005/C 193/57)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 May 2005 by Giorgio Lebedef, residing in Luxembourg, Armand Imbert, residing in Brussels, Jean-Marie Rousseau, residing in Brussels, and Maria Rosario Domenech Cobo, residing in Brussels, represented by G. Bounéou and F. Frabetti, lawyers, with an address for service in Luxembourg.
   The applicants claim that the Court should:

               —

               annul the express rejection, of 12 July 2004, of application D/393/04 by which the applicants requested that the operating system and all the software used to operate their personal computers be made available, by the competent service, in their mother tongue, or alternatively, in another official language of the European Union of their choice;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicants, all officials of the Commission, applied to their superiors for the operating system and all the software used to operate their personal computers to be made available in their mother tongue or, alternatively, in another official language of the European Union of their choice. That application and their complaints having been rejected, the applicants brought this action. They claim that the practice of installing the entire configuration of the computers in English, although the software used is available in several languages, infringes the principle of non-discrimination, because the complete mastery of the computer necessitates a knowledge, no less complete, of the English language, superior to the level which can reasonably be expected of a European official who is not anglophone by birth.
   The applicants also rely on alleged infringements of the duty to have regard for the welfare of officials, of the prohibition of arbitrary procedures and of the duty to state reasons, as well as an alleged misuse of powers.


title: Case T-314/14: Action brought on 29 April 2014 — Borde and Carbonium v Commission

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/24

         Action brought on 29 April 2014 — Borde and Carbonium v Commission
   (Case T-314/14)
   2014/C 261/46
   Language of the case: English

      Parties

      Applicants: Alexandre Borde (Paris, France) and Carbonium (Paris) (represented by: A. Herzberg, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul respondent’s decisions dated 19 and 20 February 2014 to terminate applicant No 1’s assignment in relation to the global GCCA and the Intra-ACP GCCA evaluation programmes;

               —

               order respondent to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on three pleas in law.

               1.

               First plea in law, alleging infringement of essential procedural requirements, including the applicants’ right to be heard and the obligation to give reasons for decisions.

               2.

               Second plea in law, alleging infringement of the Treaty on European Union, the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms, the defendant having violated the applicants’ rights to be treated in a fair, equitable and non-arbitrary manner and the applicants’ right to protection of their reputation.

               3.

               Third plea in law, alleging that the attacked decisions constitute a misuse of the defendant’s powers.


title: Case T-37/13: Order of the General Court of 12 July 2013 — Exakt Advanced Technologies v OHIM — Exakt Precision Tools (EXAKT) (Community trade mark — Application for a declaration of invalidity — Withdrawal of the application — No need to adjudicate)

text:
               12.10.2013

               EN

               Official Journal of the European Union

               C 298/6

         Order of the General Court of 12 July 2013 — Exakt Advanced Technologies v OHIM — Exakt Precision Tools (EXAKT)
   (Case T-37/13) (1)

   (Community trade mark - Application for a declaration of invalidity - Withdrawal of the application - No need to adjudicate)
   2013/C 298/09
   Language of the case: German

      Parties

      Applicant: Exakt Advanced Technologies GmbH (Norderstedt, Germany) (represented by: A. von Bismarck, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Exakt Precision Tools Ltd (Aberdeen, United Kingdom)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 29 October 2012 (Case R 1764/2011-1) relating to invalidity proceedings between Exakt Advanced Technologies GmbH and Exakt Precision Tools Ltd.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               The applicant is ordered to pay its own costs and to pay those incurred by the defendant.

      (1)  OJ C 86, 23.3.2013.


title: Case C-313/12: Reference for a preliminary ruling from the Corte dei Conti — Sezione Giurisdizionale per la Regione Siciliana (Italy) lodged on 28 June 2012 — Giuseppa Romeo v Regione Siciliana

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/17

         Reference for a preliminary ruling from the Corte dei Conti — Sezione Giurisdizionale per la Regione Siciliana (Italy) lodged on 28 June 2012 — Giuseppa Romeo v Regione Siciliana
   (Case C-313/12)
   2012/C 295/29
   Language of the case: Italian

      Referring court

   Corte dei Conti — Sezione Giurisdizionale per la Regione Siciliana

      Parties to the main proceedings

      Applicant: Giuseppa Romeo

      Defendant: Regione Siciliana

      Questions referred

               1.

               In interpreting and applying the rules and principles of European Union law, may a national court — on the basis of national legislation which makes a renvoi to European Union law in relation to purely internal situations — depart from, or incorrectly apply, the interpretation placed on those rules and principles in the case-law of the Court of Justice?

               2.

               Are the interpretation and application of Article 3 of Law 241/1990 and of Article 3 of Sicilian Regional Law 10/1991 — in relation to Article 1 of Law 241/90, which requires the Italian administrative authorities to apply the principles of European Union law, pursuant to the obligation to state reasons for the acts of public authorities laid down in the second paragraph of Article 296 of the Treaty on the Functioning of the European Union and in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — to the effect that measures of public authorities in a private-law form (that is to say, measures which relate to individual rights and which are in any event mandatory in matters relating to pensions) may be exempt from the obligation to state reasons, compatible with European Union law, and does such a case amount to infringement of an essential procedural requirement governing an administrative measure?

               3.

               Is the first sentence of Article 21g(2) of Law 241/1990, as interpreted by the administrative case-law — in relation to the obligation to state reasons for an administrative measure laid down by Article 3 of Law 241/1990 and by Sicilian Regional Law 10/1991, read in conjunction with the obligation to state reasons for the acts of public authorities laid down by the second paragraph of Article 296 of the Treaty on the Functioning of the European Union and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union — compatible with Article 1 of Law 241/1990, which requires the administrative authorities to apply the principles of European Union law, and, consequently, are the interpretation and application of that interpretation whereby the authorities may supplement a statement of reasons for an administrative measure in court proceedings compatible and admissible?


title: Case T-350/00: Action brought on 17 November 2000 by Free Trade Foods NV against the Commission of the European Communities

text:
10.2.2001              EN                     Official Journal of the European Communities                                         C 45/21
Pleas in law and main arguments                                          (4) order the Commission to pay the costs of these proceed-
                                                                               ings.
The applicant contests the decision of the Commission of
17 August 2000 to stop paying the household allowance and
to deduct from the applicant’s monthly pension for the period            Pleas in law and main arguments
from April 2000 to January 2001 the household allowance
alleged by the Commission to have been unduly paid since                 Free Trade Foods NV (‘FTF’) owns a sugar factory on Curaçao.
24 September 1998, the date of the death of the applicant’s              In 2000 it intended to process approximately 50 000 tonnes.
spouse.
                                                                         FTF is entirely dependent on the processing of C-sugar
The applicant claims that, since the death of his wife, he has           originating in the Community, which, as a result of EC/OCT
been in a situation of the type referred to in Article 1(c) of           cumulation, obtains an OCT origin and can thus be imported
Annex VII to the Staff Regulations, and that he therefore                into the Community free from duty.
continues to be entitled to receive the household allowance.
                                                                         As a result of the third safeguard measure a very limited quota
                                                                         of 4 848 tonnes now applies.
                                                                         FTF sets out the following four pleas in law in support of
                                                                         annulment of the third safeguard measure and payment of
Action brought on 17 November 2000 by Free Trade                         compensation:
Foods NV against the Commission of the European
                           Communities                                   1.    Infringement of Article 109 of the OCT Decision;
                         (Case T-350/00)                                 2.    Infringement of the order of priority established in the
                                                                               EC Treaty in favour of OCT goods;
                          (2001/C 45/45)
                                                                         3.    Infringement of Article 7(5) of the Agreement on Safe-
                                                                               guard Measures (concluded within the framework of the
                    (Language of the case: Dutch)                              WTO), together with infringement of Article 300(7) EC;
An action against the Commission of the European Communi-                4.    Illegality of Regulation No 2553/97.
ties was brought before the Court of First Instance of the
European Communities on 17 November 2000 by Free Trade
Foods NV, having its registered office in Curaçao (Netherlands           (1) Commission Regulation (EC) No 2081/2000 of 29 September
                                                                             2000 providing for the continued application of safeguard
Antilles), represented by M. Slotboom and N.J. Helder, of the
                                                                             measures for imports from the overseas countries and territories
Trenité Van Doorne Chambers, Rotterdam and Brussels, with                    of sugar sector products with EC/OCT cumulation of origin (OJ
an address for service in Luxembourg at the Chambers of De                   2000 L 246 of 30.9.2000, p. 64).
Bandt, Van Hecke, Lagae & Loesch, 11 Rue Goethe.
The applicant claims that the Court should:
(1) declare the action brought by Free Trade Foods to be
      admissible;
(2) annul Regulation No 2081/2000 of 29 September 2000                   Action brought on 24 November 2000 by Organización
      introducing safeguard measures for imports from the                de Productores Asociados de Grandes Atuneros Congela-
      overseas countries and territories of sugar sector products        dores (OPAGAC) against Commission of the European
      with EC/OCT cumulation of origin (hereinafter ‘the third                                      Communities
      safeguard measure’) (1);
                                                                                (Case T-359/00)
(3) rule that the Community is liable for the damage incurred
      by Free Trade Foods as a result of the third safeguard
      measure, that the parties reach agreement on the extent                                      (2001/C 45/46)
      of the damage incurred by Free Trade Foods, and, in the
      absence of agreement on that matter, that the procedure
      be continued, within a period to be set by the Court, to                               (Language of the case: Spanish)
      determine the extent of that damage, and order the
      Community to pay compensation for the damage as                    An action against the Commission of the European Communi-
      provisionally estimated and still to be estimated; in the          ties was brought before the Court of First Instance of the
      alternative, it should order the Community to pay such             European Communities on 24 November 2000 by the Orga-
      compensation as the Court may reasonably determine,                nización de Productores Asociados de Grandes Atuneros
      plus applicable interest from the date of the document             Congeladores (OPAGAC), whose registered office is at Madrid,
      instituting these proceedings until the date of full pay-          represented by Jesús Casas Robla and Vanessa Arrastia de la
      ment;                                                              Sierra.


title: Case F-20/07: Action brought on 27 June 2007 — Marcuccio v Commission

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/19

         Action brought on 27 June 2007 — Marcuccio v Commission
   (Case F-20/07)
   (2007/C 223/34)
   Language of the case: Italian
   Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul, in so far as is necessary, the decision rejecting the claim of 31 March 2006, submitted on 4 April 2006, in so far as that decision concerns the applicant's claim that point 4 of Article XV of Annex I to the Rules on sickness insurance for officials of the European Communities (‘the Rules’) should apply to the determination and subsequent reimbursement in respect of a medical examination carried out on 28 September 2005;

               —

               annul the decision rejecting the claim of 31 March 2006;

               —

               annul, in so far as is necessary, Calculation No 58, List No 30001052, of 24 May 2006;

               —

               annul, in so far as is necessary, Note ADMIN.B.2/MB/nb D(06) 27556 of 30 November 2006 containing, inter alia, the decision of the Appointing Authority in response to the claim of 7 August 2006, which has essentially the same purpose as the present action;

               —

               order the defendant to pay the applicant, by way of reimbursement of the additional sum needed to make up 100 % reimbursement of the medical expenses incurred by him and in respect of which he claimed reimbursement from the Joint Scheme in the claim of 31 March 2006, the difference between the sum of EUR 720,45 paid by the applicant and the sum of EUR 396,36 actually reimbursed to him, or other such sum as the Tribunal may consider just and equitable in that regard, such sum to earn interest from 8 April 2006 at the rate of 10 % per annum to be compounded annually, or at the rate to be compounded and from the starting date which the Tribunal may consider just;

               —

               order the defendant, in so far as is necessary, to pay the applicant the sum that he is due but has not received, within the meaning and for the purposes of point 4 of Article XV of Annex I to the Rules, in relation to the medical examination carried out on 28 September 2005, such sum to earn interest from 4 April 2006 at the rate of 10 % per annum to be compounded annually, or at the rate to be compounded and from the starting date which the Tribunal may consider just;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The action is brought as a result of the defendant's refusal to pay the applicant the additional sum needed to make up 100 % reimbursement of certain medical expenses incurred by him and to apply point 4 of Article XV of Annex I to the Rules on sickness insurance for officials of the European Communities to the determination of the reimbursement in respect of a medical examination carried out on 28 September 2005.
   In support of his arguments, the applicant relies on the following three pleas in law:

               (1)

               absolute failure to state grounds also by reason of a total failure to make preliminary inquiries, inasmuch as it cannot be understood why the defendant refused the applicant's claims in the manner referred to above;

               (2)

               manifest error of assessment and infringement of the law on the basis that the applicant's medical condition was such as to give rise, within the meaning and for the purposes of Article 72 of the Staff Regulations, to a right on his part to 100 % reimbursement of medical expenses;

               (3)

               breach of the obligation to have due regard to the welfare of officials and of the principle of sound administration, given that the defendant failed to have due regard to the applicant's interests and did several acts and related deeds which are gravely unlawful.


title: Cases C-285/99 and C-286/99: Reference for a preliminary ruling by the Fourth Chamber of the Consiglio di Stato, sitting as a judicial body, by orders of that court of 27 April and 26 May 1999, in the cases of (1) Impresa Lombardini SpA - Impresa Generale di Costruzioni v ANAS - Ente Nazionale per le Strade and Società Italiana per Condotte d'Acqua and (2) Impresa Ing. Mantovani SpA v ANAS - Ente Nazionale per le Strade

text:
30.10.1999            EN                     Official Journal of the European Communities                                        C 314/1
                                                                     I
                                                               (Information)
                                                  COURT OF JUSTICE
                                                           COURT OF JUSTICE
Reference for a preliminary ruling by the Trimeles Diikiti-              c) Is it permissible for the administrative measures as a whole
ko Protodikio Irakliou (First Chamber) by judgment of                        — including those arising from the charge of smuggling
that court of 30 June 1999 in the case of P. Louloudakis                     — which are decided on as appropriate in the field of
                    against the Greek State                                  customs contraventions by Member State B which is
                                                                             competent in that regard (in view of the absence of
                         (Case C-262/99)                                     harmonisation of national laws) to lead to penalties which
                                                                             amount to many (ten) times the original purchase price of
                         (1999/C 314/01)                                     the article in Member State A, without impeding the free
                                                                             movement of goods and persons?
Reference has been made to the Court of Justice of the
European Communities by judgment of the First Chamber of                     If the answer is in the negative, do criteria exist as to the
the Trimeles Diikitiko Protodikio Irakliou (Administrative                   limits of what is strictly necessary in order to achieve the
Court of First Instance, Heraklion (Three Judges)) of 30 June                objectives pursued?
1999, received at the Court Registry on 19 July 1999, for a              d) Does Directive 83/182/EEC or another provision give rise
preliminary ruling in the case of P. Louloudakis against the                 to an obligation on the Member States to take into account,
Greek State on the following questions:                                      when imposing administrative penalties in cases with
                                                                             which that directive is concerned, the good faith of the
a) Is the second subparagraph of Article 7(1) of Council                     persons concerned and the absence of fraudulent intent
    Directive 83/182/EEC (1) of 28 March 1983 on tax exemp-                  (for example ignorance)?
    tions within the Community for certain means of transport
    temporarily imported into one Member State from another
    to be interpreted as meaning that the normal residence of            (1) OJ No L 105, 23.4.1983, p. 59.
    a national of State A is in State A, where he successfully
    carries on business for many years both as an architect and
    in commerce through a limited partnership, retains a
    residence and spends most of his working time, or is in
    State B, of which he is also a national and where,
    simultaneously, he starts up an independent business with            Reference for a preliminary ruling by the Fourth Chamber
    a similar or at least related object, leases a house and             of the Consiglio di Stato, sitting as a judicial body, by
    begins to spend part of his time, while also complying               orders of that court of 27 April and 26 May 1999, in the
    with his fiscal obligations, assisted by his wife who                cases of (1) Impresa Lombardini SpA — Impresa Generale
    participates in all the above activities in both State A and         di Costruzioni v ANAS — Ente Nazionale per le Strade
    State B and takes shares in those businesses?                        and Società Italiana per Condotte d’Acqua and (2) Impresa
                                                                         Ing. Mantovani SpA v ANAS — Ente Nazionale per le
    Apart from the abovementioned provision, do other                                                  Strade
    criteria exist on the basis of which, in cases where it is
    difficult to determine normal residence, it is possible for                          (Cases C-285/99 and C-286/99)
    that determination to be made?
                                                                                (1999/C 314/02)
b) In the case of possession or use of private vehicles by a
    person not entitled to a temporary exemption, which under            Reference has been made to the Court of Justice of the
    national law constitutes a simple customs contravention, is          European Communities by orders of Fourth Chamber of the
    it consistent with the Community principle of pro-                   Consiglio di Stato, sitting as a judicial body, of 27 April and
    portionality to impose, on the basis of the sole criterion of        26 May 1999, which were received at the Court Registry on
    the cubic capacity of the vehicle, a special administrative          2 August 1999, for a preliminary ruling in the cases of (1)
    penalty, in particular a fine (such as the fine under                Impresa Lombardini SpA — Impresa Generale di Costruzioni
    Article 88(2)(f) of Law No 2127/1993) of an amount from              v ANAS — Ente Nazionale per le Strade (National Highways
    GRD 1 000 000 to GRD 5 000 000 per vehicle, where                    Authority) and Società Italiana per Condotte d’Acqua and (2)
    that fine exceeds the current market value of the vehicle            Impresa Ing. Mantovani SpA v ANAS — Ente Nazionale per le
    having regard also to its age?                                       Strade, on the following questions:
 ---pagebreak--- C 314/2                 EN                    Official Journal of the European Communities                                       30.10.1999
1. Does recourse to a clause in calls for tenders for public             The Council claims that the Court should:
     works contracts which prevents the participation of under-
     takings which have not submitted with their tenders                 — disallow Dr Bangemann’s rights as a former member of
     explanations in respect of the price indicated, being equal              the Commission to a pension or other payments in lieu, in
     to at least 75 % of the figure specified in the tender                   particular any transitional allowance to which he may be
     conditions, represent an obstacle to the application of                  entitled under Article 7 of regulation No 422/67/EEC,
     Article 30(4) of Directive 93/37 (1)?                                    5/67/Euratom of the Council of 25 July 1967 (1); the
                                                                              Council leaves to the discretion of the Court for how long
2. Does the establishment of a mechanism for automatically                    and to what extent those rights should be disallowed;
     identifying tenders which overstep a threshold indicative
     of irregularities and whose validity should therefore be
     checked, based on a case-by-case criterion and an arith-            — declare that disallowance of those rights does not apply to
     metical mean, which is such that undertakings are unable                 those entitled under Regulation No 422/67/EEC,
     to ascertain that threshold in advance, represent an obstacle            5/67/Euratom of the Council of 25 July 1967 in the event
     to the application of Article 30(4) of Directive 93/37?                  of Dr Bangemann’s death;
3. Does the fact that provision is made for a prior exchange             — order Dr Bangemann to pay the costs of the proceedings.
     of views, without the undertaking which has allegedly
     submitted an irregular tender having an opportunity to
     state its reasons, after the opening of the envelopes and
     before the adoption of the measure excluding it, represent          Pleas in law and main arguments
     an obstacle to the application of Article 30(4) of Direc-
     tive 93/37?
                                                                         The Council’s action is founded on subparagraph 3 of
                                                                         Article 213(2) of the EC Treaty, subparagraph 3 of Article 9(2)
4. Does a provision under which the contracting authority                of the ECSC Treaty and subparagraph 3 of Article 126(2) of
     may take account of explanations relating solely to the             the EAEC Treaty, and, specifically, solely on the duty to behave
     economy of the construction method or the technical                 with discretion. It is the view of the Council that to satisfy this
     solutions adopted or the exceptionally favourable con-              duty, it is necessary not only to comply with applicable
     ditions available to the tenderer represent an obstacle to          legislation and rules but also to assess and evaluate with
     the application of Article 30(4) of Directive 93/37?                circumspection what is the appropriate course of conduct in a
                                                                         given situation so as, in particular, not to jeopardise the
5. Does the exclusion of explanations relating to items for              Commission’s reputation as an independent and impartial
     which minimum figures can be inferred from official lists           body. The Council considers that, in taking up a post with
     represent an obstacle to the application of Article 30(4) of        Teléfonica, Herr Bangemann breached the duty to behave with
     Directive 93/37?                                                    discretion incumbent upon him because
(1) Council Directive of 14 June 1993, OJ 1993 L 199 of 9.8.1993,        — he is a politician in the public eye;
    p. 54.
                                                                         — he has been responsible for the field of information
                                                                              technology and telecommunications within the Com-
                                                                              mission since 1992 and has now taken up a post with one
                                                                              of the largest companies in that very sphere;
                                                                         — he made public the fact that he was taking up the post
                                                                              when he was still a member of the Commission and
Action brought on 3 August 1999 by the Council of the                         indeed stated that he intended to take up his new post
       European Union against Dr Martin Bangemann                             immediately;
                                                                         — the Commission was at that time in an extremely delicate
                          (Case C-290/99)                                     position and it suffered damage to its reputation;
                         (1999/C 314/03)                                 — the reactions of citizens, the media, political circles and
                                                                              public opinion were, in view of those circumstances,
An action against Dr Martin Bangemann was brought before                      clearly foreseeable.
the Court of Justice of the European Communities on 3 August
1999 by the Council of the European Union represented by
Jean-Claude Piris, Director-General of the Legal Service of the          (1) Regulation No 422/67/EEC, 5/67/Euratom of the Council of
Council, and Martin Bauer, a member of the Legal Service,                    25 July 1967 determining the emoluments of the President and
assisted by Professor Doctor Hans-Jürgen Rabe, of the Ham-                   Members of the Commission and of the President, Judges,
burg Bar and the Brussels firm Gaedertz, with an address for                 Advocates General and Registrar of the Court of Justice.
service in Luxembourg at the office of Alessandro Morbilli,
General Counsel, Legal Affairs Directorate of the European
Investment Bank, 100 Boulevard Konrad Adenauer, L-2920
Luxembourg-Kirchberg.


title: Case C-95/04 P: Appealbrought on 26 February 2004 by British Airwaysplc against the judgment delivered on 17 December 2003 bythe First Chamber of the Court of First Instance of the European Communitiesin case T-219/99 between British Airways plc and the Commission of the EuropeanCommunities, supported by Virgin Atlantic Airways Ltd.

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/22

         Appeal brought on 26 February 2004 by British Airways plc against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in case T-219/99 between British Airways plc and the Commission of the European Communities, supported by Virgin Atlantic Airways Ltd.
   (Case C-95/04 P)
   (2004/C 106/40)
   An appeal against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in case T-219/99 (1) between British Airways plc and the Commission of the European Communities, supported by Virgin Atlantic Airways Ltd, was brought before the Court of Justice of the European Communities on 26 February 2004 by British Airways plc (hereinafter BA), established in Waterside (United Kingdom), represented by R. Subiotto and J. Temple Lang, solicitors, R. O'Donoghue and W. Wood QC, barristers.
   The Appellant claims that the Court should:

               —

               set aside the judgment in case T-219/99 British Airways plc v. Commission in whole or in part;

               —

               annul or reduce the amount of BA's fine by an amount considered appropriate by the Court of Justice in the exercise of its discretion; and

               —

               take any other measure that the Court of Justice deems appropriate.

         Pleas in law and main arguments:

               A.

               The Court of First Instance Erred In Law By Applying The Wrong Test To Assess The Exclusionary Character Of BA's Commissions
               The Court of First Instance held that BA's commissions were ‘fidelity-building’, and, therefore, exclusionary. However, the Court of First Instance's ‘fidelity-building’ test cannot distinguish between customers' fidelity secured by abusive exclusionary behaviour and customers' fidelity resulting from legitimate price competition. If accepted, the Court of First Instance's ‘fidelity-building’ test would create significant legal uncertainty as to the scope of legitimate price competition, and thus create disincentives for firms to engage in legitimate price competition, frustrating the basic purpose of Community competition law.

               B.

               The Court of First Instance Erred In Law By Disregarding The Evidence That BA's Commissions Had No Material Effect On Competitors
               BA's second ground of appeal concerns the Court of First Instance's findings on the effects of BA's commissions. Clear evidence showed that rivals' shares of sales increased during the period of the alleged infringement and that BA's share of travel agents' sales declined. The Court of First Instance dismissed this evidence, arguing that BA's conduct ‘cannot fail to have had’ an effect on its rivals and that BA's competitors would have done even better, but for its conduct. The Court of First Instance added that where a dominant undertaking implements a practice tending to oust its competitors, the fact that the result is not achieved is not sufficient to prevent a finding of abuse.
               This reasoning is defective. First, competition law requires the Court to examine the actual or likely effects of allegedly abusive conduct. This was certainly approproiate in this case, since BA's conduct had lasted sufficiently long to assess its effects. Second, there was clear evidence in the present case that BA's practices had no material effect. BA does not suggest that actual effects need to be demonstrated in every case. But it is clearly a different matter to suggest, as the Court of First Instance does, that clear evidence pointing to a lack of any effect can be disregarded. The Court of First Instance's findings in this regard would, if accepted, mean that incentive practices such as those at issue would be per se abusive, irrespective of their actual or likely effects. This is not the law under Article 82 EC, which requres an examination of ‘all the circumstances’ in order to assess whether rivals' opportunities were materially limited.

               C.

               The Court of First Instance Erred In Law By Failing To Consider Whether There Was ‘Prejudice To Consumers’ Under Article 82(b) EC
               Conduct which ‘limits’ the market of competitors of a dominant company is unlawful under Article 82(b) EC only if it causes ‘prejudice to consumers’. Article 82(b) EC clearly protects competition and consumers, not competitors. The Court of First Instance erred in law by its failure to consider whether BA's commissions for successful travel agents harmed consumers. The judgment under appeal makes no analysis of this requirement, but only addresses the situation of BA's competitors.

               D.

               Even If BA's Commissions Had In Principle Been Capable of ‘Limiting’ Rivals' Markets, The Court of First Instance Erred In Law By Failing to Analyse These Effects
               BA's fourth ground of appeal needs to be considered only if, contrary to its first, second and third grounds of appeal, its incentives schemes were in principle capable of limiting rivals' markets to the prejudice of consumers, contrary to Article 82(b) EC. The judgment under appeal fails to analyse or quantify the extent to which BA's commissions limited rivals' markets in two respects: (i) the Court of First Instance wrongly treated the MAs and PRS as having the same effect, since each had different terms and conditions and was in operation for different periods, and at least one of them (the PRS) could not have been exclusionary on any basis; (ii) the Court of First Instance failed to examine ‘all the circumstances’ to assess how BA's rivals were affected by its commission schemes.

               E.

               The Court of First Instance Misapplied Article 82(c) EC In Relation To The Discriminatory Effect Of BA's Commissions
               The Court of First Instance misapplied Article 82(c) EC in finding that BA's commissions discriminated between travel agents. Article 82(c) EC does not require that all customers benefit from the same prices and terms and conditions. It proscribes differences only if: (i) the compared transactions are equivalent; (ii) the conditions applied to the transactions are different; and (iii) one trading party suffers a competitive disadvantage vis-à-vis the other trading party as a result of such differences. Instead of applying the express wording of Article 82(c) EC, the Court of First Instance simply assumed that the mere fact that two agents receive different rates of commission ‘naturally’ had a material impact on their abililty to compete with one another.

      (1)  OJ C 20, 22.01.2000, p. 21.


title: Case F-47/06: Order of the Civil Service Tribunal (Second Chamber) of 13 December 2006 — Aimi and Others v Commission (Officials — Promotion — Career — Version of the Staff Regulations applicable on 1 May 2004 — Transition to a new career structure — Measure of general application — Equal treatment — Legal interest in bringing proceedings)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/49

         Order of the Civil Service Tribunal (Second Chamber) of 13 December 2006 — Aimi and Others v Commission
   (Case F-47/06) (1)

   (Officials - Promotion - Career - Version of the Staff Regulations applicable on 1 May 2004 - Transition to a new career structure - Measure of general application - Equal treatment - Legal interest in bringing proceedings)
   (2006/C 331/109)
   Language of the case: French
   Parties

      Applicants: Nicola Aimi (Evere, Belgium) and Others (represented by: A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and K. Herrmann, Agents)
   Re:
   Annulment of the individual decisions rejecting the applicants' requests that the Appointing Authority adopt transitional measures in order to guarantee, in the context of the 2005 and subsequent promotion exercises, equal treatment and their acquired rights
   Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible;

               2.

               Each party is to bear its own costs.

      (1)  OJ C 154, 1.7.2006.


title: Case T-373/00: Action brought on 12 December 2000 by Carmine Salvatore Tralli against the European Central Bank

text:
24.2.2001              EN                     Official Journal of the European Communities                                       C 61/19
Action brought on 12 December 2000 by Carmine                            Pleas in law and main arguments
     Salvatore Tralli against the European Central Bank
                                                                         The applicant is an employee of the European Central Bank.
                         (Case T-373/00)                                 He seeks annulment of the termination of his employment
                                                                         together with a declaration that the employment relationship
                                                                         continues to exist and has not been terminated. In that
                          (2001/C 61/36)                                 connection, the applicant is contesting a unilateral extension
                                                                         by the ECB of the probationary period, the duration of which
                                                                         was originally agreed as three month. On the basis of his
                                                                         personal rights, he seeks the continuation of his employment
                   (Language of the case: German)                        on the agreed contractual terms. In addition, he seeks an order
                                                                         requiring the ECB to continue to pay the contractually
                                                                         agreed remuneration beyond 31.12.2000, and pleads in that
An action against the European Central Bank was brought                  connection default on the part of the ECB in accepting
before the Court of First Instance of the European Communities           performance of the contract.
on 12 December 2000 by Carmine Salvatore Tralli, of
Nidderau (Germany), represented by Norbert Pflüger, Regina
Steiner and Silvia Mittländer, Rechtsanwälte, Frankfurt am
Main (Germany).
The applicant claims that the Court should:
                                                                         Action brought on 11 December 2000 by Verband der
(1) annul the notice terminating his employment on                       freien Rohrwerke e.V., Eisen- und Metallwerke Ferndorf
      31.12.2000;                                                        GmbH and Rudolf Flender GmbH & Co. KG against the
                                                                                Commission of the European Communities
(2) annul the extension of the probationary period;
                                                                                (Case T-374/00)
(3) declare that the employment relationship existing
      between the parties has not been brought to an end by                                       (2001/C 61/37)
      the notice of termination;
(4) declare that the unilateral extension of the probationary                              (Language of the case: German)
      period is ineffective in law;
                                                                         An action against the Commission of the European Communi-
(5) declare that the employment relationship existing                    ties was brought before the Court of First Instance of the
      between the parties has continued to exist, without being          European Communities on 11 December 2000 by Verband
      terminated, after 31.12.2000;                                      der freien Rohrwerke e.V., of Düsseldorf (Germany), Eisen- und
                                                                         Metallwerke Ferndorf GmbH, of Kreuztal-Ferndorf (Germany),
(6) order the European Central Bank to continue, beyond                  and Rudolf Flender GmbH & Co. KG, of Siegen (Germany),
      31.12.2000, to provide the applicant with employment               represented by Hans Hellmann, Rechtsanwalt, Cologne (Ger-
      as a security guard in accordance with the contractual             many).
      conditions of employment;
                                                                         The applicants claim that the Court should:
(7) order the European Central Bank to pay to the applicant,
      beyond 31.12.2000, the basic remuneration amounting                —     annul the defendant’s decisions of 5 September and
      to EUR 32 304 p.a., together with the allowances and                     14 September 2000 in merger control case
      other items of remuneration provided for in the con-                     No COMP/M.2045 (ECSC 1336) Salzgitter/Mannes-
      ditions of employment.                                                   mannröhren-Werke;
                                                                         —     order the defendant to pay the costs.
In a series of ancillary claims for relief, the applicant seeks a
declaration that the employment relationship and the legal
consequences flowing therefrom should continue in existence              Pleas in law and main arguments
at least until the expiry of the notice period applying in respect
of the termination of employment relationships in the ECB
which are of an unlimited duration.                                      According to the particulars provided by it, the first applicant
                                                                         is an association representing the interests of a number of
                                                                         small and medium-sized undertakings producing welded steel
Finally, the applicant claims that the Court should: order the           pipes from hot-rolled wide strips or quarto plates. The other
European Central Bank to pay the costs.                                  applicants are members of the first applicant.


title: Judgment of the Court (Sixth Chamber) of  17 November 2005  in Case C-22/05: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 93/104/EC — Working conditions — Organisation of working time — Failure to transpose within the prescribed period)

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/16

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 17 November 2005
   in Case C-22/05: Commission of the European Communities v Kingdom of Belgium (1)

   (Failure of a Member State to fulfil obligations - Directive 93/104/EC - Working conditions - Organisation of working time - Failure to transpose within the prescribed period)
   (2006/C 36/30)
   Language of the case: French
   In Case C-22/05 Commission of the European Communities (Agents: G. Rozet and N. Yerrell) v Kingdom of Belgium (Agent: M. Wimmer) — action under Article 226 EC for failure to comply with obligations, brought on 25 January 2005 — the Court (Sixth Chamber), composed of J.-P. Puissochet acting as President of the Sixth Chamber, S. von Bahr and A. Borg Barthet (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 17 November 2005, in which it:

               1.

               Declares that, by excluding people working in a fairground undertaking from the scope of the national measures transposing Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, the Kingdom of Belgium has failed to fulfil its obligations under Article 1(3) and Article 17 of that directive;

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 82 of 02.04.2005.


title: Case C-206/11: Judgment of the Court (First Chamber) of 17 January 2013 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Georg Köck v Schutzverband gegen unlauteren Wettbewerb (Consumer protection — Unfair business-to-consumer commercial practices in the internal market — Legislation of a Member State providing for prior authorisation of announcements of sales)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/3

         Judgment of the Court (First Chamber) of 17 January 2013 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Georg Köck v Schutzverband gegen unlauteren Wettbewerb
   (Case C-206/11) (1)

   (Consumer protection - Unfair business-to-consumer commercial practices in the internal market - Legislation of a Member State providing for prior authorisation of announcements of sales)
   2013/C 63/03
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: Georg Köck

      Defendant: Schutzverband gegen unlauteren Wettbewerb

      Re:

   Request for a preliminary ruling — Oberster Gerichtshof — Interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22), in particular Articles 3(1) and 5(5) — Legislation of a Member State prescribing prior authorisation for the announcement of a clearance sale

      Operative part of the judgment

   Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as precluding a national court from ordering the cessation of a commercial practice not covered by Annex I to that directive on the sole ground that the practice has not been the subject of prior authorisation by the competent administrative authority, without itself carrying out an assessment of the unfairness of the practice in question against the criteria set out in Articles 5 to 9 of that directive.

      (1)  OJ C 226, 30.7.2011.


title: Case F-1/13: Action brought on 3 January 2013 — ZZ v Europol

text:
               16.3.2013

               EN

               Official Journal of the European Union

               C 79/33

         Action brought on 3 January 2013 — ZZ v Europol
   (Case F-1/13)
   2013/C 79/56
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: J.-J. Ghosez, lawyer)

      Defendant: European Police Office (Europol)

      Subject-matter and description of the proceedings

   Annulment of Europol’s decision not to renew the applicant’s contract for an unlimited period and an order that Europol pay the difference between the remuneration which she could have continued to receive from Europol and any other allowance which she actually received.

      Form of order sought

               —

               Annul the decision adopted by the defendant on 29 February 2012 by which the defendant informed the applicant that it would not be renewing her fixed-term contract which expired on 31 May 2012;

               —

               Order the defendant to pay the applicant the difference between the amount of the remuneration which she would have been able to claim had she remained in her post with the defendant and the amount of the remuneration, fees, unemployment benefits or any other substituted payment which she has actually received since 1 June 2012 to replace the remuneration which she received as a temporary staff member;

               —

               Order Europol to pay all the costs.


title: Case T-392/03: Action brought on 4 December 2003 by Regione Siciliana against the Commission of the European Communities

text:
C 35/14               EN                         Official Journal of the European Union                                          7.2.2004
Action brought on 27 November 2003 by Deutsche                           The Commission failed, in its decision, to take account of the
Post AG and DHL International N.V. /S.A. against the                     fact that, despite the cancellation of a provision created to
         Commission of the European Communities                          cover its obligations to pay pensions to persons employed as
                                                                         postal workers from 1972 to 1992, La Poste continues to
                                                                         be permitted to retain, without consideration, the business
                         (Case T-388/03)                                 premises initially transferred to it by way of compensation for
                                                                         creation of the provision.
                          (2004/C 35/22)
                                                                         The Commission was wrong to take the view that the
                  (Language of the case: German)                         possibility, laid down in statute, of obtaining State guarantees
                                                                         for certain loans does not constitute aid granted to La Poste
                                                                         provided that it has made no use of that facility.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               The contested decision is unlawful because, when offsetting
European Communities on 27 November 2003 by Deutsche                     the financial advantages granted to La Poste against the net
Post AG, Bonn (Germany), and DHL International N.V./S.A.,                additional costs of the universal postal service, the Commission
Diegem (Belgium), represented by J. Sedemund and T. Lübbig,              failed to take account of the abovementioned measures.
lawyers.
                                                                         The Commission offset the net additional costs of performing
The applicants claim that the Court should:                              services in the public interest against the corresponding
                                                                         compensation as a whole, without examining whether the
                                                                         compensation was actually paid in respect of the period in
—     annul the decision of the European Commission of                   which the net additional costs in question were incurred.
      23 July 2003 (Aid No N 763/02) and
—     order the defendant to pay the costs.
Pleas in law and main arguments
                                                                         Action brought on 4 December 2003 by Regione Siciliana
                                                                           against the Commission of the European Communities
The action is directed against the decision of the European
Commission, adopted in a procedure pursuant to Article 88(3)
EC, not to raise any objection to the compatibility of a capital                                 (Case T-392/03)
injection of EUR 297,5 million into the Belgian postal
company La Poste, to the exemption of La Poste from
corporation tax and from property tax on real-estate trans-                                       (2004/C 35/23)
actions effected by it in connection with the public supply
mandate, to La Poste’s ability to obtain State guarantees for                               (Language of the case: Italian)
loans taken out by it, to the cancellation of provision made for
pensions, to the overcompensation from which La Poste
benefited in respect of its public service tasks and to two
capital injections amounting to EUR 62 million in total which
were not notified to the Commission.                                     An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities by Regione Siciliana, represented by
The applicants submit that the contested decision is incompat-           Giacomo Aiello, Avvocato dello Stato.
ible with Article 87(1) EC and Article 253 EC.
                                                                         The applicant claims that the Court should:
The Commission did not treat the exemption of La Poste from
corporation tax as State aid only because, from 1992 to 2002,            —     annul Order BUDG/C5/ME/jlsD(2003)358046 of 6 Octo-
La Poste made net losses and thus would not have been                          ber 2003 of the Commission of the European Communi-
required to pay corporation tax even if no tax exemption had                   ties on the detailed rules for the recovery of the contri-
been granted. The Commission thus failed to take account of                    bution of the European Regional Development Fund
the fact that, as an abstract rule, the tax exemption automati-                (ERDF), ERDF ‘Gibbesi Dam’ cancelled by Commission
cally grants La Poste a financial advantage over other undertak-               Decision C(2002)4905 of 11 December 2002, and in
ings at least where it makes taxable profits, thereby enabling                 consequence order the Commission of the European
the declaration requirement to be avoided.                                     Communities to pay the costs.
 ---pagebreak--- 7.2.2004                EN                            Official Journal of the European Union                                           C 35/15
Pleas in law and main arguments                                               Action brought on 12 December 2003 by Jean-Pierre
                                                                              Castets against the Commission of the European Com-
                                                                                munities
Regione Siciliana has brought an action before the Court of
First Instance of the European Communities challenging Order                                           (Case T-398/03)
BUDG/C5/ME/jlsD(2003)358046 of 6 October 2003 of the
Commission of the European Communities on the detailed
rules for the recovery of the contribution of the European                                              (2004/C 35/24)
Regional Development Fund (ERDF), ERDF ‘Gibbesi Dam’
cancelled by Commission Decision C(2002)4905 of
11 December 2002 and of the acts resulting from it (1).                                          (Language of the case: French)
In support of its application Regione Siciliana alleges:
                                                                              An action against the Commission of the European Communi-
1.    infringement and/or misapplication of Articles 73 and                   ties was brought before the Court of First Instance of the
      186 of Council Regulation No 1605/2002 of 25 June                       European Communities on 12 December 2003 by Jean-Pierre
      2002 (2) and of Article 83 of the implementing Com-                     Castets, residing in Saint Victor Des Oules (France), represented
      mission Regulation No 2342/2002 of 23 December                          by Grégory Crétin, lawyer.
      2002 (3), in that the contested order provided for the
      recovery of the Community contribution which had been
      revoked, and refused to allow Regione Siciliana to offset               The applicant claims that the Court should:
      the contribution against claims that it itself has on the
      Commission, and therefore applied default interest to it;
                                                                              —     Annul the decision of 4 September 2003 by which the
                                                                                appointing authority rejected complaint R/311/03 made
2.    infringement and misapplication of Article 24 of Council                      by the applicant on 16 June 2003;
      Regulation No 4253/88 as amended by Council Regu-
      lation (EEC) No 2083/93 of 20 July 1993 (4) in that the
      contested order did not find that the principle of offsetting           —     Order the Office for administration and payment of
      was immediately applicable to the circumstances of this                       individual entitlements to recalculate the amount of the
      case;                                                                         invalidity pension to be paid to the applicant on the basis
                                                                                of the old-age pension which would have been paid to
                                                                                him at the age of 65 if he had remained in service until
3.    misuse of powers because of inconsistency between                             that age, and to apply that calculation retroactively from
      various acts and infringement of the principle of the                         1 May 2003;
      protection of legitimate expectations, in that the Com-
      mission has contradicted its own earlier decisions which
                                                                              —     Order the Commission to pay the costs.
      were also adopted in respect of Regione Siciliana, in
      relation to the admissibility of the action seeking offset-
      ting through discharge of the pecuniary obligations in
      this case.
                                                                              Pleas in law and main arguments
(1) Decision already contested in Case T-60/03 Regione Siciliana v
    Commission (OJ 2003 C 101, p. 50).
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June
                                                                              The applicant was retired and granted an invalidity pension
    2002 on the Financial Regulation applicable to the general budget         with effect from 1 May 2003.
    of the European Communities (OJ 2002 L 248, p. 1).
(3) Commission Regulation (EC, Euratom) No 2342/2002 of
    23 December 2002 laying down detailed rules for the implemen-             According to the applicant, when the Commission calculated
    tation of Council Regulation (EC, Euratom) No 1605/2002 on the
    Financial Regulation applicable to the general budget of the
                                                                              his invalidity pension, it manifestly misinterpreted Article 78
    European Communities (OJ 2002 L 357, p. 1).                               of the Staff Regulations in taking as the rate of the invalidity
(4) Council Regulation (EEC) No 2082/93 of 20 July 1993 amending              pension the rate of the old-age pension to which the applicant
    Regulation (EEC) No 4253/88 laying down provisions for                    would have been entitled at the age of 65 if he had remained
    implementing Regulation (EEC) No 2052/88 as regards coordi-               in service until that age and, as his basic salary, the salary he
    nation of the activities of the different Structural Funds between        would receive if he were still in service. The applicant claims
    themselves and with the operations of the European Investment             that the pension should, rather, be calculated on the basis of
    Bank and the other existing financial instruments (OJ 1993 L 193,         the old-age pension which would have been paid to him if he
    p. 20).                                                                   had remained in service until the age of 65.


title: Case C-60/12: Judgment of the Court (Grand Chamber) of 14 November 2013 (request for a preliminary ruling from the Vrchní soud v Praze — Czech Republic) — Proceedings concerning the enforcement of a financial penalty issued against Marián Baláž (Police and judicial cooperation in criminal matters — Framework Decision 2005/214/JHA — Application of the principle of mutual recognition to financial penalties — ‘Court having jurisdiction in particular in criminal matters’ — The ‘Unabhängiger Verwaltungssenat’ under Austrian law — Nature and scope of the review on the part of the court of the Member State of enforcement)

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/5

         Judgment of the Court (Grand Chamber) of 14 November 2013 (request for a preliminary ruling from the Vrchní soud v Praze — Czech Republic) — Proceedings concerning the enforcement of a financial penalty issued against Marián Baláž
   (Case C-60/12) (1)

   (Police and judicial cooperation in criminal matters - Framework Decision 2005/214/JHA - Application of the principle of mutual recognition to financial penalties - ‘Court having jurisdiction in particular in criminal matters’ - The ‘Unabhängiger Verwaltungssenat’ under Austrian law - Nature and scope of the review on the part of the court of the Member State of enforcement)
   2014/C 9/07
   Language of the case: Czech

      Referring court

   Vrchní soud v Praze

      Party to the main proceedings

   Marián Baláž

      Re:

   Request for a preliminary ruling — Vrchní soud v Praze — Interpretation of Article 1(a)(iii) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16) — ‘Court having jurisdiction in particular in criminal matters’ — ‘Unabhängiger Verwaltungssenat’ under Austrian law — Concept of ‘opportunity to have the case tried’ before a court within the meaning of Article 1(a)(iii) of the Framework Decision — Scope

      Operative part of the judgment

               1.

               The term ‘court having jurisdiction in particular in criminal matters’, set out in Article 1(a)(iii) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, is an autonomous concept of Union law and must be interpreted as covering any court or tribunal which applies a procedure that satisfies the essential characteristics of criminal procedure. The Unabhängiger Verwaltungssenat in den Ländern (Austria) fulfils those criteria and must for that reason be regarded as coming within the scope of that term.

               2.

               Article 1(a)(iii) of Framework Decision 2005/214, as amended by Framework Decision 2009/299, must be interpreted as meaning that a person is to be regarded as having had the opportunity to have a case tried before a court having jurisdiction in particular in criminal matters in the situation where, prior to bringing his appeal, that person was required to comply with a pre-litigation administrative procedure. Such a court must have full jurisdiction to examine the case as regards both the legal assessment and the factual circumstances.

      (1)  OJ C 109, 14.4.2012.


title: Case F-127/14: Order of the Civil Service Tribunal (Third Chamber) of 10 December 2014  — Turkington v European Commission (Civil service — Civil servants — Pensions — Transfer of pension rights acquired under a national pension scheme — Proposal concerning the crediting of pensionable years not challenged within the prescribed time period — No new material facts — Manifest inadmissibility)

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/50

         Order of the Civil Service Tribunal (Third Chamber) of 10 December 2014 — Turkington v European Commission
   (Case F-127/14)
   ((Civil service - Civil servants - Pensions - Transfer of pension rights acquired under a national pension scheme - Proposal concerning the crediting of pensionable years not challenged within the prescribed time period - No new material facts - Manifest inadmissibility))
   (2015/C 034/60)
   Language of the case: French

      Parties

      Applicant: Stephen Turkington (Trier, Germany) (represented by: A. Salerno, lawyer)

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

      Re:

   The application for annulment of the Commission’s decision refusing to recalculate the crediting of pension rights acquired by the applicant under the Union pension scheme pursuant to the general implementing provisions relating to Articles 11 and 12 of Annex VIII to the Staff Regulations.

      Operative part of the order

   The Tribunal:

               1.

               Dismisses the action as manifestly inadmissible.

               2.

               Order Mr Turkington to bear his own costs.


title: Case C-323/00 P: Appeal brought on 1 September 2000 by DSG Dradenauer Stahlgesellschaft mbH against the judgment delivered on 29 June 2000 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-234/95 between DSG Dradenauer Stahlgesellschaft mbH, supported by the Federal Republic of Germany and the Commission of the European Communities, supported by the United Kingdom of Great Britain and Northern Ireland

text:
C 355/6                EN                    Official Journal of the European Communities                                    9.12.2000
Request by the Commission of the European Communi-                      of Great Britain and Northern Ireland was brought before the
ties for an Opinion pursuant to Article 300(6) of the EC                Court of Justice of the European Communities on 1 September
                             Treaty                                     2000 by DSG Dradenauer Stahlgesellschaft mbH, represented
                                                                        by Ulrich Theune and Martin Luther, Rechtsanwälte, Hamburg,
                                                                        with an address for service in Luxembourg at the Chambers of
                          (Opinion 2/00)
                                                                        Lucy Dupong, 4-6 Rue de la Boucherie.
                         (2000/C 355/10)
                                                                        The appellant claims that the Court should:
By an application made by the Commission of the European
Communities, represented by Allan Rosas, Principal Legal                1.    set aside the contested judgment of the Court of First
Adviser, Götz zur Hausen, Legal Adviser, and Margarida                        Instance of 29 June 2000 in Case T-234/95 (1);
Afonso, of its Legal Service, acting as Agents, received at the
Court Registry on 27 October 2000, the Court of Justice of
the European Communities has been asked to deliver an                   2.    annul Articles 2, 3 and 4 of Commission Decision
Opinion pursuant to Article 300(6) of the EC Treaty.                          96/236/ECSC of 31 October 1995 (2);
The Commission of the European Communities asks the Court               3.    order the Commission to pay the costs.
of Justice to answer the following two questions in the
affirmative:
1.    Do Articles 133 and 177(4) together with the relevant             Pleas in law and main arguments
      provisions of Article 300 of the EC Treaty constitute the
      appropriate legal basis of the act of the European                —     Infringement of Article 4(c) of the ECSC Treaty: With
      Community concluding the Cartagena Protocol on Bios-                    regard to the question whether economic unity exists
      afety?                                                                  between the City of Hamburg and the Hamburgische
                                                                              Landesbank Girozentrale (HLB), the Court of First
2.    If the answer to Question 1 is affirmative, are the                     Instance wrongly attributed a broad power of assessment
      competences which the Member States retain in the field                 to the Commission. It is in reality a question of Com-
      of protection of the environment, which may justify their               munity law, falling entirely within the sphere of judicial
      participation in the Cartagena Protocol on Biosafety,                   examination. The Court of First Instance was therefore
      residual in relation to the preponderant competence of                  not entitled to take the HLB as the reference investor in
      the Community to enter into international commitments                   the context of the comparison of investors. In assessing
      as regards the matters dealt with in that Protocol?                     the position with reference to the law on State Aids, the
                                                                              Court should have looked not at individual engagements
                                                                              of the City of Hamburg and HLB in isolation but at the
                                                                              respective engagement of the City and HLB as a whole.
                                                                              The disputed financial measures would then not have
                                                                              been capable of being classified as aid. Rather, they
                                                                              corresponded to market behaviour.
Appeal brought on 1 September 2000 by DSG Dradenauer                    —     Infringement of Article 88 of the ECSC Treaty: The Court
Stahlgesellschaft mbH against the judgment delivered on                       of First Instance misjudges the limited powers of action
29 June 2000 by the Fifth Chamber, Extended Compo-                            of the Commission under Article 88 of the ECSC Treaty
sition, of the Court of First Instance of the European                        and attributes to it a power, unknown under that Treaty,
Communities in Case T-234/95 between DSG Dradenauer                           to require the Member States immediately to demand
Stahlgesellschaft mbH, supported by the Federal Republic                      repayment of aid prohibited under Article 4(c) of the
of Germany and the Commission of the European Com-                            Treaty. On a proper interpretation of Article 88 of the
munities, supported by the United Kingdom of Great                            ECSC Treaty in conjunction with Article 6(4) of the fifth
                 Britain and Northern Ireland                                 Steel Aid Code, the Court of First Instance should
                                                                              have recognised that, under this Treaty, the form and
                        (Case C-323/00 P)                                     procedures for the abolition of unlawful aid are left to the
                                                                              Member States.
                         (2000/C 355/11)
                                                                        —     Infringement of general legal principles.
An appeal against the judgment delivered on 29 June 2000 by
the Fifth Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Case T-234/95             (1) Not yet published in the ECR.
between DSG Dradenauer Stahlgesellschaft mbH, supported                 (2) OJ 1996 L 78, p. 31.
by the Federal Republic of Germany and the Commission of
the European Communities, supported by the United Kingdom


title: Joined Cases T-537/10 and T-538/10: Judgment of the General Court of 29 November 2012 — Adamowski v OHIM — Fagumit (FAGUMIT) (Community trade mark — Invalidity proceedings — Community word mark Fagumit and Community figurative mark FAGUMIT — Earlier national figurative mark FAGUMIT — Relative ground for invalidity — Article 8(3) and Article 165(4)(b) of Regulation (EC) No 207/2009)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/40

         Judgment of the General Court of 29 November 2012 — Adamowski v OHIM — Fagumit (FAGUMIT)
   (Joined Cases T-537/10 and T-538/10) (1)

   (Community trade mark - Invalidity proceedings - Community word mark Fagumit and Community figurative mark FAGUMIT - Earlier national figurative mark FAGUMIT - Relative ground for invalidity - Article 8(3) and Article 165(4)(b) of Regulation (EC) No 207/2009)
   2013/C 26/77
   Language of the case: German

      Parties

      Applicant: Ursula Adamowski (Hamburg, Germany) (represented by: D. von Schultz, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit sp. z o.o. (Fagumit) (Wolbrom, Poland) (represented by: M. Krekora, T. Targosz and P. Podrecki, lawyers)

      Re:

   Two actions brought against two decisions of the First Board of Appeal of OHIM of 3 September 2010 (Cases R 1002/2009-1 and R 1003/2009-1), concerning invalidity proceedings between Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit sp. z o.o. and Ursula Adamowski.

      Operative part of the judgment

   The Court:

               1.

               Orders that Cases T-537/10 and T-538/10 be joined for the purposes of judgment;

               2.

               Dismisses the actions;

               3.

               Orders Ursula Adamowski to bear her own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit sp. z o.o. relating to the proceedings before the Court.

      (1)  OJ C 30, 29.1.2011.


title: Case C-209/05: Order of the President of the Court of 29 June 2006 — Commission of the European Communities v Republic of Austria

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/32

         Order of the President of the Court of 29 June 2006 — Commission of the European Communities v Republic of Austria
   (Case C-209/05) (1)

   (2006/C 224/63)

      Language of the case: German

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 171, 9.7.2005.


title: Removal from the register of C-410/95

text:
No C 40/ 14           1 EN                   Official Journal of the European Communities                                       8 . 2 . 97
the cover capital of the pension less the accrued rights ) or                     Removal from the register of C-290/95 (')
only to the subrogation as such ?                                                                    ( 97/C 40/30 )
(') Offical Journal, English Special Edition 1971 ( II ), p. 416 .
                                                                        By order of 2 October 1996 the President of the Court of
                                                                        Justice of the European Communities has ordered the
                                                                        removal from the register of Case C-290/95 : Commission
                                                                        of the European Communities v. Italian Republic .
                                                                        (') OJ No C 286 , 28 . 10 . 1995 .
Reference for a preliminary ruling by the Cour du Travail
( Fourth Chamber), Brussels, by judgment of that court of
11 December 1996 in the case of Europieces SA against
Wilfried Sanders and Automotive Industries Holding
                             Company SA
                          ( Case C-399/96 )                                       Removal from the register of C-3 19/95 (')
                              97/C 40/28 )                                                           ( 97/C 40/31 )
Reference has been made to the Court of Justice of the                  By order of 23 September 1 996 the President of the Court
European Communities by judgment of the Cour du                         of Justice of the European Communities has ordered the
Travail (Higher Labour Court ) ( Fourth Chamber ),                      removal from the register of Case C-319/95 : Commission
Brussels, of 11 December 1996 , which was received at the               of the European Communities v. Ireland .
 Court Registry on 17 December 1996 , for a preliminary
 ruling in the case of Europieces SA against Wilfried                   (') OJ No C 333 , 9 . 12 . 1995 .
 Sanders and Automotive Industries Holding Company SA
 on the following question :
 Does Council Directive 77/ 187/EEC (') of 14 February
 1977 on the approximation of the laws of the Member
 States relating to the safeguarding of employees' rights in                      Removal from the register of C-4 10/95 (')
 the event of transfers of undertakings, businesses or parts                                          ( 97/C 40/32 )
 of businesses apply where a company in liquidation
 transfers all or part of its assets to another company                  By order of 27 September 1996 the President of the Court
 which then issues orders to a worker which the company                  of Justice of the Fluropean Communities has ordered the
 in liquidation says must be carried out ?                               removal from the register of Case C-410/95 ( reference for
                                                                         a preliminary ruling from the Tribunal de Commerce de
 O O J No L 61 , 5 . 3 . 1977, p . 26 .                                  Nice ): SA Societe des Grands Garages Mediterraneens ,
                                                                         Societe Nissan France v. Societe Nice Ouest Automobiles .
                                                                         (") OJ No C 46 , 17 . 2 . 1996 .
 Reference for a preliminary ruling by the Tribunal
 Correctionnel, Charleroi, by judgment of that court of
  21 October 1996 in the case of Ministere Public v. Jean
                                Harpegnies                                         Removal from the register of C- 18/96 (')
                           ( Case C-400/96 )                                                           ( 97/C 40/33 )
                              ( 97/C 40/29 )
                                                                          By order of 8 October 1 996 the President of the Court of
  Reference has been made to the Court of Justice of the
                                                                         Justice of the European Communities ordered the removal
                                                                         from the register of Case C- 18/96 : Commission of the
  European Communities by a judgment of the Tribunal
  Correctionnel ( Criminal Court ), Charleroi , of 21 October            European Communities v. Kingdom of Belgium .
  1996 , which was received at the Court Registry on
                                                                          (■) OJ No C 77, 16 . 3 . 1996 .
  17 December 1996, for a preliminary ruling in the case of
  Ministere Public ( Public Prosecutor ) v. Jean Harpegnies on
  the following question :
  Is Belgian legislation, in so far so it still requires approval
  by the Belgian authorities of plant-protection products                          Removal from the register of C-l 34/96 ( 1 )
  marketed in another Member State, in ' breach of the rules
  on the free movement of goods in the Community, as laid                                               ( 97/ C 40/34 )
  down in Article 30 of the EEC Treaty ?
                                                                          By order of 3 October 1996 the President of the Court of
                                                                          Justice of the European Communities ordered the removal


title: Case T-372/11: Action brought on 15 July 2011 — Basic v OHIM — Repsol YPF (basic)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/54

         Action brought on 15 July 2011 — Basic v OHIM — Repsol YPF (basic)
   (Case T-372/11)
   2011/C 269/120
   Language in which the application was lodged: English

      Parties

      Applicant: Basic Aktiengesellschaft Lebensmittelhandel (Munich, Germany) (represented by: D. Altenburg, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Repsol YPF, SA (Madrid, Spain)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 March 2011 in case R 1440/2010-1;

               —

               Dismiss the appeal in case No R 1440/2010-1 regarding ruling on opposition No B 1384694

               —

               Order the defendant to pay the costs of this proceeding.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘basic’, in yellow, blue and red, for goods and services in classes 3, 4, 5, 16, 18, 21, 25, 28, 29, 30, 31, 32, 33, 35, 39, 43, 44 and 45 — Community trade mark application No 6752811

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

      Mark or sign cited in opposition: Community trade mark registration No 5648159 of the figurative mark ‘BASIC’, for services in classes 35, 37 and 39

      Decision of the Opposition Division: Upheld the opposition for part of the contested services in class 35 and all the contested services in class 39. The opposition was rejected for the remaining services in class 35

      Decision of the Board of Appeal: Annulled the decision of the Opposition Division to the extent it rejected the opposition for part of the services in class 35. Rejected the CTM application for these services and dismissed the appeal for the remaining services in class 35

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed the existence of a likelihood of confusion between the applied mark and the opposed mark.


title: Judgment of the Court (Fourth Chamber) of 18 November 2004 in Case C-87/04: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directive 2001/17/EC — Reorganisation and winding-up of insurance undertakings — Failure to transpose within the prescribed period)

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/8

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 18 November 2004
   in Case C-87/04: Commission of the European Communities v Kingdom of Belgium (1)

   (Failure of a Member State to fulfil its obligations - Directive 2001/17/EC - Reorganisation and winding-up of insurance undertakings - Failure to transpose within the prescribed period)
   (2005/C 19/14)
   Language of the case: French
   In Case C-87/04: action under Article 226 EC for failure to fulfil obligations, brought on 23 February 2004, Commission of the European Communities (Agents: E. Traversa and P. Léouffre) against Kingdom of Belgium (Agent: E. Dominkovits) – the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting as President of the Fourth Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 18 November 2004, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings, the Kingdom of Belgium has failed to fulfil its obligations under that directive,

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 85 of 3.4.2004.


title: Case T-516/09 P: Appeal brought on 21 December 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 7 October 2009 in Case F-122/07, Marcuccio v Commission

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/40

         Appeal brought on 21 December 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 7 October 2009 in Case F-122/07, Marcuccio v Commission
   (Case T-516/09 P)
   2010/C 51/75
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

               —

               In any event, set aside in its entirety and without exception the order under appeal;

               —

               declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible in its entirety and without any exception whatsoever;

               —

               allow in its entirety and without any exception whatsoever the relief sought by the appellant at first instance;

               —

               order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings;

               —

               in the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

      Pleas in law and main arguments

   The present appeal is brought against the order of the Civil Service Tribunal (CST) of 7 October 2009 in Case F-122/07. That order dismissed as partly manifestly inadmissible and partly manifestly unfounded an action seeking annulment of the Commission’s decision to reject the appellant’s request that an investigation be carried out in relation to certain events which occurred in 2001 and 2003 and an order that the Commission pay compensation for the damage suffered as a result.
   In support of his claims, the appellant alleges that the order under appeal distorted and misrepresented the facts and misinterpreted and misapplied the obligation to give reasons for measures.


title: Case C-277/09: Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Court of Session (Scotland), Edinburgh — United Kingdom) — The Commissioners for Her Majesty’s Revenue and Customs v RBS Deutschland Holdings GmbH (Sixth VAT Directive — Right to deduction — Purchase of vehicles and use for leasing transactions — Differences between the tax regimes of two Member States — Prohibition of abusive practices)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/6

         Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Court of Session (Scotland), Edinburgh — United Kingdom) — The Commissioners for Her Majesty’s Revenue and Customs v RBS Deutschland Holdings GmbH
   (Case C-277/09) (1)

   (Sixth VAT Directive - Right to deduction - Purchase of vehicles and use for leasing transactions - Differences between the tax regimes of two Member States - Prohibition of abusive practices)
   2011/C 63/10
   Language of the case: English

      Referring court

   Court of Session (Scotland), Edinburgh

      Parties to the main proceedings

      Applicant: The Commissioners for Her Majesty’s Revenue and Customs

      Defendant: RBS Deutschland Holdings GmbH

      Re:

   Reference for a preliminary ruling — Court of Session (Scotland), Edinburgh — Interpretation of Article 17(3)(a) of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Transactions carried out with the sole aim of obtaining a tax advantage — Provision of vehicle leasing services in the United Kingdom by the German subsidiary of a bank established in the United Kingdom

      Operative part of the judgment

               1.

               In circumstances such as those of the main proceedings, Article 17(3)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that a Member State cannot refuse to allow a taxable person to deduct input value added tax paid on the acquisition of goods in that Member State, where those goods have been used for the purposes of leasing transactions carried out in another Member State, solely on the ground that the output transactions have not given rise to the payment of value added tax in the second Member State.

               2.

               The principle of prohibiting abusive practices does not preclude the right to deduct value added tax, recognised in Article 17(3)(a) of Directive 77/388, in circumstances such as those of the main proceedings, in which a company established in one Member State elects to have its subsidiary, established in another Member State, carry out transactions for the leasing of goods to a third company established in the first Member State, in order to avoid a situation in which value added tax is payable on the sums paid as consideration for those transactions, the transactions having been categorised in the first Member State as supplies of rental services carried out in the second Member State, and in that second Member State as supplies of goods carried out in the first Member State.

      (1)  OJ C 267, 7.11.2009.


title: Case C-410/05: Action brought on  21 November 2005  by the Commission of the European Communities against the Hellenic Republic

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/20

         Action brought on 21 November 2005 by the Commission of the European Communities against the Hellenic Republic
   (Case C-410/05)
   (2006/C 36/40)
   Language of the case: Greek
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 21 November 2005 by the Commission of the European Communities, represented by G. Zavvos and G. Braun, of its Legal Service, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               —

               declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2001/97/EC (1) of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, the Hellenic Republic has failed to fulfil its obligations under that directive;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   The time-limit for transposition of the directive into domestic law expired on 15 June 2003.

      (1)  OJ No L 344, 28.12.2001, p. 76.