title: Case C-228/16 P: Judgment of the Court (First Chamber) of 31 May 2017 — Dimosia Epicheirisi Ilektrismou AE (DEI) v European Commission (Appeal — State aid — Decision to take no further action — Refusal by the European Commission to continue to examine the applicant’s complaint — Lack of aid at the end of the preliminary examination stage — Purely confirmatory decision — Legal conditions for the withdrawal of a decision to take no further action)

text:
               31.7.2017

               EN

               Official Journal of the European Union

               C 249/9

         Judgment of the Court (First Chamber) of 31 May 2017 — Dimosia Epicheirisi Ilektrismou AE (DEI) v European Commission
   (Case C-228/16 P) (1)

   ((Appeal - State aid - Decision to take no further action - Refusal by the European Commission to continue to examine the applicant’s complaint - Lack of aid at the end of the preliminary examination stage - Purely confirmatory decision - Legal conditions for the withdrawal of a decision to take no further action))
   (2017/C 249/12)
   Language of the case: Greek

      Parties

      Appellant: Dimosia Epicheirisi Ilektrismou AE (DEI) (represented by: E. Bourtzalas, avocat, A. Oikonomou, E. Salaka, C. Synodinos and C. Tagaras, dikigoroi, and by D. Waelbroeck, avocat,)

      Other party to the proceedings: European Commission (represented by: A. Bouchagiar and É. Gippini Fournier, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the order of the General Court of the European Union of 9 February 2016, DEI v Commission (T-639/14, not published, EU:T:2016:77);

               2.

               Refers the case back to the General Court of the European Union;

               3.

               Reserves the costs.

      (1)  OJ C 211, 13.6.2016.


title: Case T-214/99: Action brought on 28 September 1999 by Manuel Tomás Carrasco Benítez against the Commission of the European Communities

text:
20.11.1999             EN                      Official Journal of the European Communities                                      C 333/35
Action brought on 24 September 1999 by Luc Verheyden                      Action brought on 28 September 1999 by Manuel Tomás
  against the Commission of the European Communities                      Carrasco Benı́tez against the Commission of the European
                                                                                Communities
                         (Case T-213/99)
                                                                                (Case T-214/99)
                         (1999/C 333/77)
                                                                                (1999/C 333/78)
                    (Language of the case: French)
An action against the Commission of the European Communi-                                    (Language of the case: French)
ties was brought before the Court of First Instance of the
European Communities on 24 September 1999 by Luc Ver-
heyden, residing at Angera (Italy), represented by Eric Boigelot,         An action against the Commission of the European Communi-
of the Brussels Bar, with an address for service in Luxembourg            ties was brought before the Court of First Instance of the
at the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim.               European Communities on 28 September 1999 by Manuel
                                                                          Tomás Carrasco Benı́tez, residing in London, represented by
The applicant claims that the Court should:                               Jean-Noël Louis, Greta-Françoise Parmentier and Véronique
                                                                          Peere, of the Brussels Bar, with an address for service in
— annul the note drawn up on 10 November 1998 by                          Luxembourg at the offices of Fiduciaire Myson SARL 30 Rue
    D. Van Hattem, Head of Service in the Infrastructure                  de Cessange.
    Directorate for the Ispra site, addressed to the applicant,
    by which, inter alia, he described the management by the              The applicant claims that the Court should:
    applicant over the last two years of a depository situated
    in building 76b as ‘not up to any acceptable standard’;               — annul the decision of the selection board in competition
— annul the decision of 22 June 1999, drawn up by Mr Erkki                     COM/T/R/ADM/A/98 not to admit the applicant to the
    Liikanen, Member of the Commission, in his capacity as                     competition;
    appointing authority, and brought to the applicant’s notice
    on 25 June 1999, rejecting the complaint lodged by the                — annul the decision of the selection board in joint vacancy
    applicant on 16 February 1999;                                             notices/internal competitions COM/R/5179/98, COM/R/
                                                                               5182/98, COM/R/5183/98, COM/R/5188/98 and COM/
— order the defendant to pay all the costs in any event;                       R/5190/98;
— order that the defendant be paid compensation for non-                  — order the defendant to pay the costs.
    material damage fixed, on an equitable basis, in the sum of
    LIT 25 000 000.
                                                                          Pleas in law and main arguments
Pleas in law and main arguments
                                                                          The applicant, a Grade B official assigned to the European
The applicant contests the manner in which one of his                     Agency for the Evaluation of Medicinal Products, contests the
superiors has addressed to him certain criticisms concerning              decision of the selection boards in the abovementioned
his efficiency and output in the performance of his duties.               competitions not to admit him to the tests in those compe-
                                                                          titions. The competitions in question form part of the new
In support of his claims, he pleads:                                      policy of the Commission, aimed at filling each year a certain
                                                                          number of permanently established posts within the research
— infringement of Articles 26 and 43 of the Staff Regulations,            budget.
    misuse of powers and abuse of process in the present case,
    and breach of the rights of the defence. In that regard, he
    considers, in particular, that it is intolerable that the             In support of his claims, the applicant pleads infringement of
    appointing authority should be able to categorise his                 Articles 4, 27 and 29(1)(b) of the Staff Regulations and breach
    output and efficiency without adhering to the procedures              of the principle of equal treatment, as well as a manifest error
    laid down in the Staff Regulations;                                   of assessment in the present case.
— infringement of Article 24 of the Staff Regulations and                 On the basis of those pleas, the applicant maintains, in
    breach of the principle of the protection of legitimate               particular, that:
    expectations, together with failure to fulfil its duty to have
    regard for his welfare and interests. He maintains in that
                                                                          — the criterion requiring candidates to have completed a
    regard, first, that the defendant, contrary to what it seeks
                                                                               minimum of ten years’ service as a servant of the European
    to demonstrate, has not introduced the necessary measures
                                                                               Communities, within the meaning of the Conditions of
    for his further training and instruction and, second, that
                                                                               employment of other agents, is unlawful, inasmuch as it
    the defendant has not taken all necessary and adequate
                                                                               may have the effect of eliminating from possible recruit-
    measures to protect him against the defamation which he
                                                                               ment persons who possess qualifications which are equiva-
    has suffered.
                                                                               lent to, or even higher than, those of the candidates
                                                                               admitted to the competition (competition COM/T/R/
                                                                               ADM/A/98);
 ---pagebreak--- C 333/36               EN                     Official Journal of the European Communities                                    20.11.1999
— as regards competition COM/R/5179/98, both the appli-                  by Sinaga, Sociedade de Indústrias Agrı́colas Açoreanas, SA,
    cant’s curriculum vitae and the annex to his written                 whose registered office is at 75 Rua de Lisboa, Ponta Delgada,
    application in the competition procedure show that he has            Azores, represented by Dr Mário Marques Mendes and by Dr
    14 years’ experience at European lever in the field of               Maria Luı́sa Duarte, with an address for service in Luxembourg
    new products and computer services. Moreover, he has                 at the Chambers of Aloyse May, 21 Grand-Rue, Luxembourg.
    management experience and, in particular, experience of
    the supervision of outside contracts;                                The action seeks the annulment of the annex to Commission
                                                                         Regulation (EC) No 1434/99 of 30 June 1999 in so far as it
— as regards competition COM/R/5182/98, the Commission                   establishes the sugar forecast supply balance for the Azores
    has committed a manifest error of assessment in consider-            and hold that earlier legislation continues to produce its effects.
    ing him to have had no experience in the field of contract
    management, in particular the management of contracts                The applicant claims that the Court should:
    for the provision of telematic network services;
                                                                         — find the application admissible;
— as regards competition COM/R/5183/98, the applicant
    has shown that he possesses over five years’ practical               — annul the annex to Commission Regulation (EC)
    experience in the evaluation of research and technological               No 1434/99 of 30 June 1999 in so far as it establishes the
    development programmes and projects;                                     sugar forecast supply balance for the Azores and hold that
                                                                             earlier legislation continues to produce its effects;
— as regards competition COM/R/5188/98, the competition
    notice does not state, as it should have done, that                  — order the Commission of the European Communities to
    candidates are required to possess professional experience               pay the costs.
    in those matters;
— as regards competition COM/R/5190/98, the applicant has                Pleas in law and main arguments
    proved that he possesses over 17 years’ experience in the
    fields prescribed.                                                   Infringement of Article 190 of the EC Treaty (now Article 253
                                                                         EC): manifestly inadequate and inconsistent statement of
                                                                         reasons
                                                                         Infringement of Articles 2, 3, and 8 of Council Regulation
                                                                         (EEC) No 1600/92 of 15 June 1992: the forecast supply
                                                                         balance does not take into account traditional trace flows
Action brought on 30 September 1999 by Sinaga, Socied-
ade de Indústrias Agrı́colas Açoreanas, SA, against the                 Infringement of Article 227 of the EC Treaty (now, after
         Commission of the European Communities                          amendment, Article 299 EC): failure to take account of the
                                                                         said provision when interpreting and applying legislative
                        (Case T-217/99)                                  provisions applicable to the extremely remote areas
                        (1999/C 333/79)                                  Infringement of Article 4(1) of the EC Treaty (now Article 7(1)
                                                                         EC): the Commission has exercised its executive powers in a
                                                                         manifestly abusive and unlawful manner
                 (Language of the case: Portuguese)
                                                                         Breach of the principle of proportionality: the effects of the
An action against was brought before the Court of First                  forecast made in Regulation (EC) No 1434/99 are unfair and
Instance of the European Communities on 30 September 1999                unreasonable.


title: Case T-287/10: Action brought on 25 June 2010 — Unilever España and Unilever v OHMI — Med Trans G. Poulias-S. Brakatselos (MED FRIGO S.A.)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/49

         Action brought on 25 June 2010 — Unilever España and Unilever v OHMI — Med Trans G. Poulias-S. Brakatselos (MED FRIGO S.A.)
   (Case T-287/10)
   ()
   2010/C 234/88
   Language in which the application was lodged: English

      Parties

      Applicants: Unilever España S.A. and Unilever N.V. (Barcelona, Spain) (represented by: C. Prat, lawyer)

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

      Other party to the proceedings before the Board of Appeal:‘Med Trans’ G. Poulias-S. Brakatselos A.E. (Patra, Greece)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 April 2010 in case R 1025/2009-2;

               —

               Request the Opposition division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to continue with the examination of the evidence, evaluating the applicability of Articles 8(1)(b), 8(4) and 8(5) of the CTMR;

               —

               In the alternative, alter the contested decision, and decide on the merits of the case;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘MED FRIGO S.A.’, for goods and services in class 39

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited: Spanish trade mark registration No 112534 of the word mark ‘FRIGO’, for goods in class 30; Spanish trade mark registration No 123204 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 434378 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 767539 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 2148274 of the figurative mark ‘Frigo’ for goods in class 30; Spanish trade mark registration No 60893 of the word mark ‘FRIGO S.A.’ for ‘business named to ice creams and milk products manufacturing and production’

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Rule 19(2)(a)(ii) of Commission Regulation (EC) No 2868/95, as the Board of Appeal wrongly assessed that the applicant did not file all the necessary proof of existence, validity and scope of protection of its earlier trade mark upon which the opposition was based; infringement of Rule 19(3) in connection with Rule 98(1) of Commission Regulation (EC) No 2868/95, as the Board of Appeal wrongly considered that the translations filed by the applicant were not sufficiently clear and well-structured.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/34

         Removal from the register of Case C-210/02 (1)

   (2004/C 94/85)
   By order of 28 November 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-210/02: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

      (1)  OJ C 180 of 27.07.2002.


title: Action brought on 13 December 1995 by the Kingdom of Belgium against the Kingdom of Spain (Case C-388/95)

text:
17 . 2 . 96              EN                    Official Journal of the European Communities                                      No C 46/5
at Lomé concluded between the African, Caribbean and                      14 November 1995, the operative part of which is as
Pacific States and the European Economic Community —                      follows :
the Court ( Sixth Chamber), composed of C. N. Kakouris,
President of the Chamber, G. Hirsch, F. A. Schockweiler, P.               1 . the application is referred to the Court of First Instance
J. G. Kapteyn and J. L. Murray (Rapporteur ), Judges; C. O.                    of the European Communities;
Lenz, Advocate General; H. A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on                 2.   the costs are reserved.
12 December 1995 , in which it rules:
                                                                          (') OJ No C 299, 11 . 11 . 1995 .
1 . The General Agreement on Tariffs and Trade does not
       contain provisions ofsuch a nature as to confer rights on
       individuals which they could rely on before national
       courts in order to challenge the application of
       conflicting national provisions . The Fourth ACP-EEC
       Convention may contain such provisions.                            Action brought on 13 December 1995 by the Kingdom of
                                                                                Belgium against the Kingdom of Spain
2 . The ACP-EEC Conventions preclude increases in                                                ( Case C-388/95 )
       internal taxation on bananas originating in the ACP                                          ( 96/C 46/09 )
       States, such as the Italian consumption tax, where those
       increases take place after 1 April 1 976 and their effect is       An action against the Kingdom of Spain was brought before
       to put those banana exports in a situation less                    the Court of Justice of the European Communities on
       favourable than before, as regards access to their                 13 December 1995 by the Kingdom of Belgium, represented
       traditional markets and the advantages they enjoy on               by J. Devadder, Director of Administration in the Ministry
       those markets.                                                     of Foreign Affairs, Trade and Development Cooperation,
                                                                          acting as Agent, with an address for service in Luxembourg
 f 1 ) OJ No C 43 , 12 . 2 . 1994 .                                       at the Belgian Embassy, 4 Rue des Girondins.
                                                                          The applicant claims that the Court should:
                                                                          — declare that, by maintaining Royal Decree 157/1988 and
                     ORDER OF THE COURT
                                                                               in particular Article 19 ( 1 ) ( b ) thereof, the Kingdom of
                                                                               Spain has failed to fulfil its obligations under Article 34
                       of 14 November 1995                                     of the EC Treaty as interpreted by the Court of Justice of
 in      Case    C-281/95 :       Hedwig     Kuchlenz-Winter      v.           the European Communities in its judgment of 9 June
          Commission of the European Communities ( x )                         1992 ( J ) and its obligations under Article 5 of the
                                                                               Treaty,
  (Lack ofcompetence ofthe Court — Reference to the Court
                            of First Instance)                            — order the Kingdom of Spain to pay the costs.
                              ( 96/C 46/08 )
                                                                           Pleas in law and main arguments
                  (Language of the case: German)
                                                                           — By failing to take the measures necessary to comply with
  (Provisional translation; the definitive translation will be                 Article 34 as interpreted by the Court of Justice, the
            published in the European Court Reports)                           Kingdom of Spain disregards the principle of fair
                                                                               competition, incumbent upon it by virtue of Article 5 of
                                                                               the EC Treaty.
 In Case C-281 /95 : Hedwig Kuchlenz-Winter, the divorced
  spouse of a former official of the European Parliament,                  — In Case C-47/90, the Court ofJustice gave a ruling on the
  represented by Dieter Rogalla, Rechtsanwalt, Sprockhövel,                    interpretation of Article 34 of the Treaty in which it
  with an address for service in Luxembourg at the Chambers                     found that the Spanish provisions did not comply with
  of Armin Machmer, 1 Rue Roger Barthel, v. Commission of                       Community law. The Court's reasoning is still
  the European Communities — application for a declaration                     completely relevant: no legislation in the field of wine
  of failure to act on the part of the Commission, in that it                   production has had any effect on the legal context in
  omitted, in breach of the Treaty, to propose amendments to                   which the judgment of the Court of Justice is set.
  the Staff Regulations of officials so as to enable the divorced
  spouse of a former official receiving the retirement pension                 The fact that the Consejo Regulador de la Ribera del
  payable in respect of her former spouse to obtain cover                   .   Duero has taken a decision similar to that of the Consejo
  under the Joint Sickness Insurance Scheme — the Court,                        Regulador de la Rioja ( after the abovementioned
  composed of G. C. Rodriguez Iglesias, President, C. N.                        judgment was published) runs counter to the existence
  Kakouris, D. A. O. Edward, J. -P. Puissochet and G. Hirsch                    of the internal market.
   ( Presidents    of Chambers ),       G.   F.   Mancini,    F.  A.
  Schockweiler, J. C. Moitinho de Almeida, P. J. G. Kapteyn,               0 ) Case C-47/90 Delhaize and Others v. Commission [ 1992] ECR
  C. Gulmann, J. L. Murray, P. Jann ( Rapporteur), H.                          1-3669 .
  Ragnemalm, L. Sevón and M. Wathelet, Judges; P. Leger,
  Advocate General; R. Grass, Registrar, made an order on


title: Case T-440/07, T-465/07 and T-1/08: Order of the General Court of 7 July 2010 — Huta Buczek and Others v Commission (No need to adjudicate)

text:
               25.9.2010

               EN

               Official Journal of the European Union

               C 260/14

         Order of the General Court of 7 July 2010 — Huta Buczek and Others v Commission
   (Case T-440/07, T-465/07 and T-1/08) (1)

   (No need to adjudicate)
   2010/C 260/18
   Language of the case: Polish

      Parties

      Applicants: Huta Buczek Sp. z o.o. (Sosnowiec, Poland) (represented by: D. Szlachetko-Reiter, lawyer) (Case T-440/07); Emilian Salej, acting as liquidator of Technologie Buczek S.A. (Laryszów, Poland); Technologie Buczek S.A. (Sosnowiec) (represented by: D. Szlachetko-Reiter, lawyer) (Case T-465/07); and Buczek Automotive Sp z o.o. (Sosnowiec) (represented by: T. Gackowski initially, then D. Szlachetko-Reiter and finally J. Jurczyk, lawyers) (Case T-1/08)

      Defendant: European Commission (represented by: K. Gross, M. Kaduczak, A. Stobiecka-Kuik and K. Herrmann, Agents)

      Intervener in support of the applicants: Republic of Poland (represented by: M. Niechciał initially, then M. Krasnodebska-Tomkiel and M. Rzotkiewicz, Agents) (Cases T-440/07 and T-1/08).

      Re:

   Applications for partial annulment of the Commission Decision C(2007) 5087 final of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek

      Operative part of the order

               1.

               There is no further need to adjudicate on the application in Case T-465/07, as brought by Emilian Salej.

               2.

               The parties are to bear their own costs relating to Case T-465/07, as brought by Emilian Salej.

      (1)  OJ C 64, 8.3.2008.


title: Case T-340/00: Action brought on 7 November 2000 by the Comunità Montana della Valnerina against Commission of the European Communities

text:
6.1.2001               EN                     Official Journal of the European Communities                                            C 4/9
Action brought on 8 November 2000 by Bactria Industrie-                  —     It grants phase-out periods for the continued selling of
hygiene Service GmbH & Co K.G. against the Commission                          active substances that are found to be unfit for EU central
                 of the European Communities                                   register inclusion which are unreasonably long and will
                                                                               economically damage participating diligent companies,
                                                                               like the applicant.
                         (Case T-339/00)
                          (2001/C 4/14)                                  —     It requires companies to share commercially sensitive
                                                                               market information when making a notification, which
                                                                               gives rise to antitrust concerns when producers become
                                                                               aware of each other’s market volumes and shares.
                   (Language of the case: English)
An action against the Commission of the European Communi-                —     It infringes well established principles of EU law such as
ties was brought before the Court of First Instance of the                     the fundamental right of data ownership, the principles
European Communities on 8 November 2000 by Bactria                             of legitimate expectations, proportionality, uniform
Industriehygiene Service GmbH & Co. KG, represented by                         application of Community law, and supremacy of inter-
Mr Koen Van Maldegem and Mr Claudio Mereu of the Brussels                      national agreements.
Bar.
The applicant claims that the Court should:
                                                                         (1) Directive 98/8/EC of the European Parliament and of the Council
                                                                             of 16 February 1998 concerning the placing of biocidal products
—     annul Commission Regulation (EC) No 1896/2000 of                       on the market, OJ L 123 , of 24 April 1998, p. 1.
      7 September 2000 on the first phase of the programme
      referred to in Article 16(2) of Directive 98/8/EC of the           (2) Commission Regulation (EC) No 1896/2000 of 7 September
                                                                             2000 on the first phase of the programme referred to in Article
      Europan Parliament and of the Council on biocidal
                                                                             16(2) of Directive 98/8/EC of the European Parliament and of the
      products, based on Article 230(4) of the EC Treaty;                    Council on biocidal products, OJ L 228 , of 8 September 2000,
                                                                             p. 6.
—     order the defendant to pay all the costs of these proceed-
      ings.
Pleas in law and main arguments
The applicant manufactures peracetic acid (‘PAA’), which is an
active substance used in biocidal products.
Pursuant to Article 16, paragraph 2 of Directive 98/8/EC (1),
the Commission initiated a programme of work for the review              Action brought on 7 November 2000 by the Comunità
of all active substances of biocidal products already on the             Montana della Valnerina against Commission of the Euro-
market. To this end, the Commission adopted regulation (EC)                                      pean Communities
No 1896/2000 (2). This regulation initiates a notification
procedure for active substances to be evaluated for a possible
inclusion in a list of substances that are eligible to be placed
on the market.                                                                                (Case T-340/00)
The applicant submits that it is individually and directly                                          (2001/C 4/15)
concerned by this regulation and seeks its annulment on the
following grounds:
—     The Regulation violates the data protection provisions                                 (Language of the case: Italian)
      set forth in the Directive by ignoring protection for
      commercially sensitive and expensive active substance
      data, legally granted by the Directive, during the review          An action against the Commission of the European Communi-
      period of these active substances.                                 ties was brought before the Court of First Instance of the
                                                                         European Communities on 7 November 2000 by the Comu-
—     It distorts competition in violation of the EC Treaty in           nità Montana della Valnerina, represented by Emilio Cappelli
      that it allows companies which do not participate in the           and Paolo De Caterini, of the Rome Bar, with an address for
      review process to take a free ride on notifications made           service in Luxembourg at the Chambers of Charles Turk, 13 B,
      by participating diligent companies, like the applicant;           avenue Guillaume.
 ---pagebreak--- C 4/10                EN                   Official Journal of the European Communities                                        6.1.2001
The applicant claims that the Court should:                           Action brought on 10 November 2000 by Jan Pflugradt
                                                                                against the European Central Bank
—     annul the decision of the Commission of 14 August 2000                                   (Case T-341/00)
      No 54 (2000) D/106308 pursuant to Article 320(4) of
      the EC Treaty and order the defendant to pay the costs.
                                                                                (2001/C 4/16)
                                                                                (Language of the case: German)
Pleas in law and main arguments
                                                                      An action against the European Central Bank was brought
                                                                      before the Court of First Instance of the European Communities
                                                                      on 10 November 2000 by Jan Pflugradt, of Frankfurt am Main
By the present action the applicant contests the decision of the      (Germany), represented by Norbert Pflüger, Regina Steiner
Commission of 14 August 2000 No 54 (2000) D/106308                    and Silvia Mittländer, Rechtsanwälte, Frankfurt am Main
withdrawing the financial contribution from the EAGGF                 (Germany).
granted to the Comunità Montana della Valnerina (Norcia) by
decision C(93) 3182 of 10 November 2000 relating to a
contribution by the EAGGF-Guidance Section in the context             The applicant claims that the Court should:
of project 93.IT.06.016 ‘a pilot forestry agro-alimentary
demonstration project in marginal hill areas (France, Italy)’.        —     declare that the European Central Bank has committed
                                                                            a breach of the applicant’s employment contract by
                                                                            employing him to perform the activities forming the
                                                                            subject-matter of the job description of 28 June 2000;
The applicant points out in this connection that, in order to
improve the chances of obtaining finance for the project              —     declare that the job description of 28 June 2000 has no
submitted by the applicant, the Commission had suggested                    legal force or effect;
through non-official channels to the authorities of the upland
community to link their project with a similar one put forward
by the ‘Route des Senteurs’ operating in the Drôme Provençale         —     order the European Central Bank to withdraw the job
region of France.                                                           description of 28 June 2000;
                                                                      —     order the European Central Bank, in the event that the
                                                                            relief constituting item (3) in the form of order sought in
In support of its claims, the applicant alleges breach of                   his application of 30 June 2000 in Case T-178/00 (1) is
the principles of non-discrimination and of proportionality,                not granted by the Court of First Instance, to provide the
inasmuch as the defendant has sought, by a global withdrawal                applicant in any event with work corresponding to the
of the total contribution, to deal with complex and hetero-                 activities forming the subject-matter of the job description
genous facts, arising from two draft projects submitted entirely            on which the applicant’s staff report of 23 November
separately and independently by two different persons, with                 1999 was based;
the risk of charging each of the partners with also having
committed the irregularity alleged against the other party.           —     order the European Central Bank to pay the costs.
Moreover, according to the applicant, it is clear that the            Pleas in law and main arguments
irregularity with which ‘Route des Senteurs’ is charged, involv-
ing almost 67 % of the EEC contribution, is far greater than          The applicant is an employee of the ECB. He contests the
that with which the applicant is charged, which involves only         validity in law of a written communication by the defendant
36 % of the same contribution. It is in fact the sanction of          assigning him, with reference to a job description, to perform
withdrawing the whole of the contribution which gives rise to         new tasks. He maintains that the assignment to him of those
the breach of the principle of proportionality, where a               tasks infringes his contractual rights. In addition, the job
reduction of that contribution in proportion to any irregularity      description is inconsistent with what has been contractually
would have been an equitable solution which would have                agreed.
taken account of their respective responsibilities.
                                                                      (1) OJ C 259, 9.9.2000, p. 29.


title: Case C-341/00 P: Appeal brought on 18 September 2000 by the Conseil National des Professions de l'Automobile ("CNPA"), la Fédération Nationale de Distributeurs, Loueurs et Réparateurs de Matériel de Bâtiments et Travaux Publics et de Manutention ("DLR"), Auto Contrôle 31 SA, YAM 31 Sàrl, Roux SA, Marc Foucher-Creteau et Verdier Distribution Sàrl against the order made on 12 July 2000 by the Court of First Instance of the European Communities (Third Chamber) in Case T-45/00 Conseil National des Professions de l'Automobile, la Fédération Nationale de Distributeurs, Loueurs et Réparateurs de Matériel de Bâtiments et Travaux Publics et de Manutention, Auto Contrôle 31 SA, YAM 31 Sàrl, Roux SA, Marc Foucher-Creteau et Verdier Distribution Sàrl v Commission of the European Communities

text:
4.11.2000               EN                    Official Journal of the European Communities                                     C 316/17
      —     Commission Directive 98/87/EC of 13 November                 2.    Order the defendant to pay the costs.
            1998 amending Council Directive 79/373/EEC on
            the marketing of compound feedingstuffs (2), and
                                                                         Pleas in law and main arguments
      —     Commission Directive 98/100/EC of 21 December
            1998 amending Directive 92/76/EC recognising                 The pleas in law and main arguments correspond to those in
            protected zones exposed to particular plant health           Case C-377/99 (1).
            risks in the Community (3),
                                                                         The applicant contests the decision on the financial correction
            the Grand Duchy of Luxembourg has failed to fulfil           concerning expenditure of the Land of Mecklenburg-Vorpom-
            its obligations under Article 3 of Directive 98/68/EC,       mern in the arable crops sector for the 1995 harvest, in so far
            Article 2 of Directive 98/87/EC and Article 2 of             as the Commission
            Directive 98/100/EC;
                                                                         —     now charges 5 %, instead of 2 % as originally envisaged,
2.    Order the Grand Duchy of Luxembourg to pay the costs.                    of the expenditure whose justification was checked by
                                                                               classic on-the-spot control, and
Pleas in law and main arguments                                          —     applies a charge of 2 % for the expenditure whose
                                                                               justification was checked by remote sensing.
By virtue of the mandatory nature of Articles 10 EC and 249
EC, Member States are required to take the measures necessary
to transpose directives addressed to them into national law              (1) OJ C 366 of 18.12.1999, p. 19.
before the expiry of the periods prescribed for that purpose.
The periods laid down in the provisions referred to in
paragraph 1 of the heads of claim expired on 31 March 1999,
30 June 1999 and 1 January 1999, respectively, without the
Grand Duchy of Luxembourg having adopted the necessary
measures.
                                                                         Appeal brought on 18 September 2000 by the Conseil
                                                                         National des Professions de l’Automobile (‘CNPA’), la
(1) OJ L 261, 24.9.1998, p. 32.                                          Fédération Nationale de Distributeurs, Loueurs et Répara-
(2) OJ L 318, 27.11.1998, p. 43.                                         teurs de Matériel de Bâtiments et Travaux Publics et de
(3) OJ L 351, 29.12.1998, p. 35.                                         Manutention (‘DLR’), Auto Contrôle 31 SA, YAM 31 Sàrl,
                                                                         Roux SA, Marc Foucher-Creteau et Verdier Distri-
                                                                         bution Sàrl against the order made on 12 July 2000 by the
                                                                         Court of First Instance of the European Communities
                                                                         (Third Chamber) in Case T-45/00 Conseil National des
                                                                         Professions de l’Automobile, la Fédération Nationale de
                                                                         Distributeurs, Loueurs et Réparateurs de Matériel de
Action brought on 14 September 2000 by the Federal                       Bâtiments et Travaux Publics et de Manutention, Auto
Republic of Germany against the Commission of the                        Contrôle 31 SA, YAM 31 Sàrl, Roux SA, Marc Foucher-
                     European Communities                                Creteau et Verdier Distribution Sàrl v Commission of the
                                                                                European Communities
                          (Case C-337/00)
                                                                                (Case C-341/00 P)
                         (2000/C 316/32)
                                                                                (2000/C 316/33)
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European             An appeal against the order made on 12 July 2000 by the
Communities on 14 September 2000 by the Federal Republic                 Third Chamber of the Court of First Instance of the European
of Germany, represented by Wolf-Dieter Plessing, Minis-                  Communities in Case T-45/00 between CNPA and Others and
terialrat, and Thomas Jürgensen, Regierungsrat, of the Federal           the Commission was brought before the Court of Justice of
Ministry of Financial Affairs, 108 Graurheindorfer Straße,               the European Communities on 18 September 2000 by CNPA
D-53117 Bonn.                                                            and Others, represented by C. Bourgeon, of the Paris Bar, with
                                                                         an address for service in Luxembourg at the Chambers of
The applicant claims that the Court should:                              François Brouxel, 6 Rue Zithe.
1.    Annul Commission Decision 2000/449/EC of 5 July                    The appellants claim that the Court should:
      2000 on the exclusion from Community financing of
      certain expenditure of the Member States charged to the            having regard to Article 115(1) of the Rules of Procedure of
      Guarantee Section of the European Agricultural Guidance            the Court of First Instance
      and Guarantee Fund (EAGGF), in so far as under Article 1
      the sum of DEM 17 412 165,440 is not accepted by the               —     set aside the contested order on grounds of a substantial
      EAGGF but charged to the Federal Republic of Germany;                    procedural defect;
 ---pagebreak--- C 316/18               EN                     Official Journal of the European Communities                                        4.11.2000
having regard to the action for annulment brought on                     The Commission’s total failure to take into consideration the
29 February 2000, and Articles 83(1) and 81 of the EC Treaty             observations which CNPA and DLR were prompted to submit
                                                                         as a result of the publication of the contested act and the
                                                                         guidelines gives them a legal interest in bringing proceedings.
—     declare that the admissibility of the appeal, which depends        CNPA and DLR have a legitimate interest, in the light of the
      on the legal classification of the contested act, is insepar-      collective interests represented by them, in ensuring that the
      able from the substance of the case;                               Commission, the guarantor of Community competition policy,
                                                                         at least fulfil its task of instruction in that field, by answering
                                                                         such objections as may be put to it. To conceive of the
—     declare that the contested act infringes Articles 83(1) and        consultation procedure in any other way would deprive
      81 of the EC Treaty;                                               Article 83(1) of the Treaty of any actual effect.
—     declare it void.                                                   (1) OJ L 336, p. 21.
In the alternative, having regard to Article 230 of the EC
Treaty,
                                                                         Action brought on 15 September 2000 by the Com-
—     declare that the appellants have provided proof that they          mission of the European Communities against the
      have a direct and individual interest in challenging the                                    Kingdom of Spain
      legality of Regulation (EEC) No 2790/1999 of
      22 December 1999 (1);                                                                         (Case C-342/00)
—     declare it void for the reasons set out below;                                                (2000/C 316/34)
                                                                         An action against the Kingdom of Spain was brought before
                                                                         the Court of Justice of the European Communities on 15 Sep-
order the Commission to pay the costs.                                   tember 2000 by the Commission of the European Communi-
                                                                         ties, represented by Gregorio Valero Jordana, of its Legal
                                                                         Service, acting as Agent, with an address for service in
                                                                         Luxembourg at the office of Carlos Gómez de la Cruz, also of
Pleas in law and main arguments                                          the Commission’s Legal Service, Wagner Centre, Kirchberg.
                                                                         The applicant claims that the Court should:
—     Infringement by the Court of First Instance of its own
      Rules of Procedure, and also of Articles 83(1), 81(1) and          —     Declare that, by failing to have adopted the laws, regu-
      230 of the EC Treaty: the Court gave judgment before the                 lations and administrative provisions needed in order to
      time-limit of three months for interveners to submit                     comply with Council Directive 97/11/EC (1) of 3 March
      observations had even expired.                                           1997 amending Directive 85/337/EEC (2) on the assess-
                                                                               ment of the effects of certain public and private projects
                                                                               on the environment or, in any event, by failing to
—     Infringement of Articles 83(1) and 81 of the Treaty: it is               have informed the Commission about any such laws,
      plain that an act of the Commission, even if it is called a              regulations or administrative provisions, the Kingdom of
      regulation, may not escape review by the judicature if it                Spain has failed to fulfil its obligations under that
      infringes the very terms of the Treaty. Contrary to what                 directive;
      the contested order finds, the question whether the action
      was admissible could not be settled without consideration          —     Order the Kingdom of Spain to pay the costs.
      of the substance.
                                                                         Pleas in law and main arguments
—     Infringement of Article 230(4) of the Treaty: the mere
      fact that the Commission calls the contested act a                 The pleas in law and main arguments correspond to those in
      regulation does not make it a regulation within the                Case C-335/00 (3); the period for transposition expired on
      meaning of Article 83(1) of the Treaty if, as the appellants       14 March 1999.
      maintain, it infringes precisely those provisions of
      Article 81, and that is so whether the contested act is            (1) OJ L 73, 14.3.1997, p. 5.
      individual or general in scope.                                    (2) Council Directive 85/337/EEC of 27 June 1985 (OJ L 175,
                                                                             5.7.1985, p. 40).
                                                                         (3) See p. 16 of this Official Journal.
Moreover, the appellants have provided proof that they have a
direct and individual interest in the annulment they request.


title: Case C-85/09 P: Appeal brought on 27 February 2009 by Portela — Comércio de artigos ortopédicos e hospitalares, L da against the order made by the Court of First Instance on 17 December 2008 in Case T-137/07 Portela — Comércio de artigos ortopédicos e hospitalares, L da v Commission of the European Communities

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/16

         Appeal brought on 27 February 2009 by Portela — Comércio de artigos ortopédicos e hospitalares, Lda against the order made by the Court of First Instance on 17 December 2008 in Case T-137/07 Portela — Comércio de artigos ortopédicos e hospitalares, Lda v Commission of the European Communities
   (Case C-85/09 P)
   2009/C 102/26
   Language of the case: Portuguese

      Parties

      Appellant: Portela — Comércio de artigos ortopédicos e hospitalares, Lda (represented by C. Mourato, advogado)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside, in part, the order under appeal in so far as it considered that no causal connection had been established between the Commission’s failure to act and the damage allegedly sustained (paragraphs 96, 97, 99, 100 and 101 of the order under appeal) by the appellant;

         and, ruling on the merits,

               —

               declare, primarily, that in this case the conditions necessary for the Commission to incur non-contractual liability have been satisfied; order the Commission to pay compensation for the damage alleged, and order the Commission to pay all the costs at both instances, including the appellant’s;

               —

               or, refer the case back to the Court of First Instance for it to ascertain whether the conditions necessary for the Commission to incur non-contractual liability have been satisfied; order the Commission to pay compensation for the damage alleged, and order the Commission to pay the costs — including the appellant’s — of these proceedings and of those before the Court of First Instance.

      Pleas in law and main arguments

               —

               The order under appeal is insufficiently reasoned, for the Court of First Instance has not answered the arguments raised by the appellant, in paragraphs 92 and 93 of the original application, to the effect that the fact that the manufacturer had no authorised representative for Community territory, as required by the directive, rendered impossible the conformity assessment procedure carried out by the notified body and, lastly, concerning the Commission’s assertion that it had not been called upon to take part in the safeguard procedure because the Portuguese authority Infarmed had failed to act in accordance with Article 14b of Council Directive 93/42/EC (1) of 14 June 1993 concerning medical devices, as amended by Directive 98/79/EC (2) of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices;

               —

               error in the assessment of the causal connection between the Commission’s conduct and the damage suffered by the appellant and misinterpretation of Articles 8 and 14b of the Directive by the Court of First Instance;

               —

               infringement of the right to a fair hearing by refusing the measures of inquiry sought by the appellant.

      (1)  OJ 1993 L 169, p. 1.

      (2)  OJ 1998 L 331, p. 1.


title: Judgment of the Court (First Chamber) of  9 February 2006  in Joined Cases C-226/04 and C-228/04: Reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio in La Cascina Soc. coop. arl. and Others v Ministero della Difesa and Others and Consorzio G.f.M. v Ministero della Difesa and Others (Public service contracts — Directive 92/50/EEC — Article 29, first paragraph, subparagraphs (e) and (f) — Obligations of service providers — Payment of social security contributions and taxes )

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/7

      JUDGMENT OF THE COURT

   (First Chamber)
   of 9 February 2006
   in Joined Cases C-226/04 and C-228/04: Reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio in La Cascina Soc. coop. arl. and Others v Ministero della Difesa and Others and Consorzio G.f.M. v Ministero della Difesa and Others (1)

   (Public service contracts - Directive 92/50/EEC - Article 29, first paragraph, subparagraphs (e) and (f) - Obligations of service providers - Payment of social security contributions and taxes )
   (2006/C 86/11)
   Language of the case: Italian
   In Joined Cases C-226/04 and C-228/04: references for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale del Lazio (Italy), made by decisions of 22 April 2004, received at the Court on 2 June 2004, in the proceedings between La Cascina Soc. coop. arl, Zilch Srl (C-226/04) and Ministero della Difesa, Ministero dell'Economia e delle finanze, Pedus Service, Cooperativa Italiana di Ristorazione soc. coop. arl (CIR), Istituto nazionale per l'assicurazione contro gli infortuni (INAIL), and between Consorzio G.f.M. (C-228/04) and Ministero della Difesa, La Cascina Soc. coop arl, the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric, K. Lenaerts and E. Juhász (Rapporteur), Judges; M. Poiares Maduro, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 9 February 2006, in which it ruled:
   Subparagraphs (e) and (f) of the first paragraph of Article 29 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts do not preclude a national law or administrative practice according to which a service provider, who has not fulfilled obligations relating to social security contributions and taxes by having paid in full when the period prescribed for submitting the request to participate in the contract expires, may subsequently regularise his position

               —

               pursuant to a tax amnesty or leniency measures adopted by the State, or

               —

               pursuant to an administrative arrangement of payment in instalments or debt relief, or

               —

               by bringing administrative or legal proceedings,

         provided that, within the period prescribed by national law or administrative practice, he provides evidence that he has benefited from such measures or arrangement or that he has brought such proceedings within that period.

      (1)  OJ C 190, of 24.7.2004.


title: Case C-243/99: Reference for a preliminary ruling by the Landesgericht Korneuburg (Austria) by order of 18 June 1999 in the case of FILA Sport S.p.A. v Beijing Metals & Minerals Import & Export Corp.

text:
28.8.1999                EN                     Official Journal of the European Communities                                       C 246/19
     If so: May Article 14c(b) of Regulation No 1408/71 in                 Action brought on 1 July 1999 by the Commission of the
     conjunction with Annex VII (implementation of Article                 European Communities against the Kingdom of Denmark
     14c(b)) be applied by analogy to the situation in this case
     of the pursuit of two different self-employed activities
     (hotelier in Austria and farmer in Germany)?                                                  (Case C-246/99)
                                                                                (1999/C 246/40)
( 1) OJ, English Special Edition, 1971, p. 416.
(2) OJ L 28 of 30.1.1997, p. 1.
                                                                           An action against the Kingdom of Denmark was brought
(3) OJ L 38 of 12.2.1999, p. 1.                                            before the Court of Justice of the European Communities on 1
                                                                           July 1999 by the Commission of the European Communities,
                                                                           represented by Hans Christian Støvlbæk, of its Legal Service,
                                                                           acting as Agent, with an address for service in Luxembourg at
                                                                           the office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                           Kirchberg.
                                                                           The applicant claims that the Court should:
                                                                           1. Declare that, by maintaining Paragraphs 2(1) and 1(2) of
Reference for a preliminary ruling by the Landesgericht                        Decree No 124 of 27 February 1989 on packaging for
Korneuburg (Austria) by order of 18 June 1999 in the                           beer and soft drinks, as most recently amended by Decree
case of FILA Sport S.p.A. v Beijing Metals & Minerals                          No 300 of 30 April 1997, providing that drinks covered
                      Import & Export Corp.                                    by the Decree may be marketed only in returnable
                                                                               packaging, and by maintaining Paragraph 3 of that Decree,
                                                                               which provides that the packaging of imported drinks may
                                                                               not be made of metal, the Kingdom of Denmark, further
                           (Case C-243/99)                                     to Article 226 EC (ex Article 169), has failed to fulfil
                                                                               its obligations under European Parliament and Council
                                                                               Directive 94/62/EC (1) of 20 December 1994 on packaging
                           (1999/C 246/39)                                     and packaging waste, particularly Article 18, in conjunc-
                                                                               tion with Articles 5, 7 and 9 thereof, and Articles 28 and
                                                                               30 EC (ex Articles 30 and 36);
Reference has been made to the Court of Justice of the
European Communities by order of 18 June 1999 from
the Landesgericht Korneuburg (Regional Court, Korneuburg)                  2. Order the Kingdom of Denmark to pay the costs of these
(Austria), which was received at the Court Registry on 28 June                 proceedings.
1999, for a preliminary ruling in the case of FILA Sport S.p.A.
v Beijing Metals & Minerals Import & Export Corp. on the
following question:
                                                                           Pleas in law and main arguments
On a proper construction of Article 1 thereof, is Council
Regulation (EC) No 3295/94 of 22 December 1994 laying                      — Directive 92/64/EC provides that Member States, on the
down measures to prohibit the release for free circulation,                    one hand, cannot impede the placing on the market of
                                                                               their territory of packaging which satisfies the rules of the
export, re-export or entry for a suspensive procedure of
                                                                               Directive (Article 18) and, on the other, may allow
counterfeit and pirated goods (1) also applicable to situations
                                                                               packaging to be placed on the market only if it complies
in which goods of the type specified therein are, in the course
of transit between two States not belonging to the European                    with the essential requirements of the Directive (Article
Community, temporarily detained by customs authorities in a                    9(1)). The Directive thus establishes full harmonisation of
                                                                               Member States’ national rules on packaging and packaging
Member State on the basis of that regulation, at the request of
                                                                               waste.
a holder of rights who claims that his rights have been
infringed and whose undertaking has its registered office in a
Member State of the European Community?
                                                                               The Directive does not contain provisions authorising
                                                                               Member States to lay down more stringent rules. It follows
                                                                               that Member States cannot maintain in force national
                                                                               requirements which diverge from those laid down in the
(1) OJ 1994 L 341 of 30.12.1994, p. 8.                                         Directive. Since the Directive establishes full harmonisation
                                                                               of the rules on packaging, inter alia with a view to
                                                                               preventing competition from being distorted, a Member
                                                                               State cannot apply rules on the packaging to be used for
                                                                               domestic drinks which differ from those which may be
                                                                               applied to packaging for imported drinks.


title: Order of the Court (Fourth Chamber) 5 February 2004 in Case C-150/02 P: Streamserve Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/12

      ORDER OF THE COURT

   (Fourth Chamber)
   5 February 2004
   in Case C-150/02 P: Streamserve Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Absolute ground for refusal to register - Distinctive character - Marks consisting exclusively of descriptive signs or indications - ‘Streamserve’)
   (2004/C 94/22)
   Language of the case: English
   In Case C-150/02 P: Streamserve Inc., represented by J. Kääriäinen, advokat, with an address for service in Luxembourg: Appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 27 February 2002 in Case T-106/00 Streamserve v OHIM (Streamserve) [2002] ECR II-723, seeking the annulment of that judgment in so far as the Court of First Instance held that the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) had not infringed Article 7(1)(c) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) in its decision of 28 February 2000 refusing registration of the word ‘Streamserve’ as a Community trade mark, other than as regards goods in the categories ‘manuals’ and ‘publications’ (Case R 423/1999-2), the other party to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (Agent: E. Joly), the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has made an order on 5 February 2004, the operative part of which is as follows:

               1.

               The appeal is dismissed.

               2.

               The appellant is to pay the costs.

      (1)  OJ C 169 of 13.07.2002.


title: Case C-256/11: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria), lodged on 25 May 2011 — Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike and Dragica Stevic v Bundesminister für Inneres

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/11

         Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria), lodged on 25 May 2011 — Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike and Dragica Stevic v Bundesminister für Inneres
   (Case C-256/11)
   2011/C 219/15
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Claimants: Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike and Dragica Stevic

      Defendant: Bundesminister für Inneres

      Questions referred

               1.

                           (a)

                           Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country — whose spouse and minor children are Union citizens — residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case)

                           (b)

                           Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country — whose spouse is a Union citizen — residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)

                           (c)

                           Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country — who has reached the age of majority and whose mother is a Union citizen — residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case)

                           (d)

                           Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country — who has reached the age of majority and whose father is a Union citizen — residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)

               2.

               If any of the questions under 1 is to be answered in the affirmative:
               Does the obligation on the Member States under Article 20 TFEU to grant residence to nationals of non-member countries relate to a right of residence which follows directly from European Union law, or is it sufficient that the Member State grants the right of residence to the national of a non-member country on the basis of its law establishing such a right?

               3.

                           (a)

                           If, according to the answer to Question 2, a right of residence exists by virtue of European Union law:
                           Under what conditions, exceptionally, does the right of residence which follows from European Union law not exist, or under what conditions may the national of a non-member country be deprived of the right of residence?

                           (b)

                           If, according to the answer to Question 2, it should be sufficient for the national of a non-member country to be granted the right of residence on the basis of the law of the Member State concerned which establishes such a right:
                           Under what conditions may the national of a non-member country be denied the right of residence, notwithstanding an obligation in principle on the Member State to enable that person to acquire residence?

               4.

               In the event that Article 20 TFEU does not prevent a national of a non-member country, as in the situation of Mr Dereci, from being denied residence in the Member State:
               Does Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, drawn up by of the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, or Article 41 (1) of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, which, according to Article 62 thereof, forms an integral part of the Agreement establishing an Association between the European Economic Community and Turkey, preclude, in a case such as that of Mr Dereci, the subjection of the initial entry of a Turkish national to stricter national rules than those which previously applied to the initial entry of Turkish nationals, even though those national provisions which had facilitated the initial entry did not enter into force until after the date on which the aforementioned provisions concerning the association with Turkey entered into force in the Member State in question?

      (1)  OJ 1972 L 293, p. 4.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 25 November 1998 in Case C-308/97: (reference for a preliminary ruling from the Pretura Circondariale di Bari): Giuseppe Manfredi v. Regione Puglia (Wine - New planting of vines - Table grapes)

text:
23.1.1999             EN                  Official Journal of the European Communities                                      C 20/7
               JUDGMENT OF THE COURT                                               JUDGMENT OF THE COURT
                       (Sixth Chamber)                                                      (Sixth Chamber)
                                                                                of 26 November 1998
                    of 25 November 1998
                                                                     in Case C-1/97 (reference for a preliminary ruling from
in Case C-308/97: (reference for a preliminary ruling from           the Verwaltungsgericht der Freien Hansestadt Bremen):
the Pretura Circondariale di Bari): Giuseppe Manfredi v.                     Mehmet Birden v. Stadtgemeinde Bremen (1)
                       Regione Puglia (1)
                                                                     (EEC-Turkey Association Agreement Ð Freedom of
                                                                     movement for workers Ð Article 6(1) of Decision No 1/80
      (Wine Ð New planting of vines Ð Table grapes)
                                                                     of the Association Council Ð Scope Ð Turkish national
                                                                     with a fixed-term employment contract under a
                        (1999/C 20/10)                               programme financed by the public authorities and
                                                                     designed to assist the integration of persons dependent on
                                                                               social assistance into the labour market)
                                                                                (1999/C 20/11)
                (Language of the case: Italian)
                                                                                (Language of the case: German)
  (Provisional translation; the definitive translation will be        (Provisional translation; the definitive translation will be
          published in the European Court Reports)                            published in the European Court Reports)
                                                                     In Case C-1/97: reference to the Court under Article 177
                                                                     of the EC Treaty from the Verwaltungsgericht der Freien
In Case C-308/97: reference to the Court under Article 177           Hansestadt Bremen (Administrative Court of the Free
of the EC Treaty by the Pretura Circondariale di Bari                Hanseatic City of Bremen), Germany, for a preliminary
(Italy), for a preliminary ruling in the proceedings pending         ruling in the proceedings pending before that court
before that court between Giuseppe Manfredi and Regione              between Mehmet Birden and Stadtgemeinde Bremen Ð on
Puglia on the interpretation of Article 6(1) of Council              the interpretation of Article 6(1) of Decision No 1/80 of
Regulation (EEC) No 822/87 of 16 March 1987 on the                   19 September 1980 on the development of the
common organisation of the market in wine (OJ L 84,                  Association, adopted by the Association Council
27.3.1987, p. 1) Ð the Court (Sixth Chamber), composed               established by the Association Agreement between the
of P. J. G. Kapteyn (Rapporteur), (President of the                  European Economic Community and Turkey Ð the Court
Chamber); G. Hirsch, G. F. Mancini, H. Ragnemalm and                 (Sixth Chamber), composed of: P. J. G. Kapteyn, President
K. M. Ioannou, Judges; D. Ruiz-Jarabo Colomer,                       of the Chamber, G. F. Mancini, J. L. Murray, H.
Advocate-General; L. Hewlett, Administrator, for the                 Ragnemalm and R. Schintgen (Rapporteur), Judges; N.
Registrar, has given a judgment on 25 November 1998, in              Fennelly, Advocate-General; L. Hewlett, Administrator, for
which it has ruled:                                                  the Registrar, has given a judgment on 26 November 1998
                                                                     in which it has ruled:
                                                                     Article 6(1) of Decision No 1/80 of 19 September 1980 on
For the years 1991 and 1992, Article 6(1) of Council                 the development of the Association, adopted by the
Regulation (EEC) No 822/87 of 16 March 1987 on the                   Association Council established by the Association
common organisation of the market in wine, as amended                Agreement between the European Economic Community
by Council Regulation (EEC) No 1325/90 of 14 May                     and Turkey is to be interpreted as follows:
1990, prohibited new plantations of vines intended for the
production of table grapes.
                                                                     A Turkish national who has lawfully pursued a genuine
                                                                     and effective economic activity in a Member State under
( ) OJ C 318, 18.10.1997.
 1
                                                                     an unconditional work permit for an uninterrupted period
                                                                     of more than one year for the same employer, in return for
                                                                     which he received the usual remuneration, is a worker
                                                                     duly registered as belonging to the labour force of that
                                                                     Member State and in legal employment there within the
                                                                     meaning of that provision.


title: Case T-3/02: Action brought on 10 January 2002 by Schlüsselverlag J.S. Moser Gesellschaft m.b.H. and Others against the Commission of the European Communities

text:
C 84/64                EN                     Official Journal of the European Communities                                      6.4.2002
The applicant also states that the Commission has erred in law           —      order the defendant to pay to the applicant, by way of
and in fact by clearing the ‘no-discrimination rule’, according                 compensation for the damage suffered and to be suffered,
to which merchants are prohibited from charging their costs                     EUR 350 000, fixed with all manner of reservations,
for the use of debit card by a customer to that customer.                       together with default interest at the rate of 10 % per
According to the applicant, this rule constitutes a restriction                 annum as from 7 October 1999 until the date on which
on competition, since it prevents the merchants from using                      it is actually paid;
the threat of such discrimination as pressure in order to
bargain for lower merchant’s fees. The applicant states that the         —      order the defendant to pay the costs.
Commission has made an incomplete market investigation on
this point.
                                                                         Pleas in law and main arguments
Likewise, the applicant claims that the Commission has erred
in clearing several other rules with the contested decision.             The applicant is suffering from an occupational disease
Thus the Commission clears the ‘cross-border issuing rules’              contracted after working in the Court of Justice building which
that require that a bank wishing to start issuing cards in               contained asbestos.
another state must comply with the rules applicable in that
state. According to the applicant, this partitions the market de         According to the applicant, the Court of Justice confuses two
facto and prevents less restrictive rules in one state from being        categories of damage: that covered by Article 288 of the EC
used by issuing banks as a competitive advantage in another              Treaty and that covered by Article 73 of the Staff Regulations.
state. Furthermore, the Commission erred in clearing the                 The applicant is not seeking a finding under Article 73 of
‘cross-border acquiring rule’, which prevents, according to the          the Staff Regulations that his health has deteriorated but
applicant, merchants in one state from seeking an acquiring              compensation, under Article 288 of the EC Treaty, for non-
bank in another state where the multilateral interchange fee is          material damage as a result of his illness, damage which is
lower.                                                                   non-medical and non-economic.
Finally, the Commission gives insufficient reasoning for its             The applicant claims that all the conditions for the granting of
clearance of the ‘No acquiring without issuing rule’. This rule          such compensation are met in his case. In particular, he has
requires that a bank, wishing to acquire merchants, must issue           suffered actual damage in that his family and social lives have
a certain number of cards to customers before it may begin its           been disrupted as a result of his illness. Secondly, there is, in
acquiring activities. This amounts, according to the applicant,          the applicant’s view, a causal link between the damage suffered
to a market sharing agreement between the current issuers.               and the act complained of in that the Court of Justice did not
                                                                         take appropriate protective measures. Thirdly, the damage is
                                                                         unusual and special in nature.
                                                                         Action brought on 10 January 2002 by Schlüsselverlag
Action brought on 3 January 2002 by Robert Polinsky
                                                                         J.S. Moser Gesellschaft m.b.H. and Others against the
  against Court of Justice of the European Communities
                                                                                Commission of the European Communities
                          (Case T-1/02)                                                               (Case T-3/02)
                        (2002/C 84/117)                                                             (2002/C 84/118)
                                                                                (Language of the case: German)
                   (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
An action against the Court of Justice was brought before the            European Communities on 10 January 2002 by Schlüsselverlag
Court of First Instance of the European Communities on
                                                                         J.S. Moser Gesellschaft m.b.H., established in Innsbruck (Aus-
3 January 2002 by Robert Polinsky, residing in Thionville
                                                                         tria), J. Wimmer GmbH, established in Linz (Austria), Zeitungs-
(France), represented by Juan-Ramón Iturriagagoitia, lawyer.            und Verlags-Gesellschaft m.b.H., established in Bregenz (Aus-
                                                                         tria), Eugen Russ Vorarlberger Zeitungsverlag und Druckerei
                                                                         Gesellschaft mbH, established in Schwarzach (Austria), ‘Die
The applicant claims that the Court should:                              Presse’ Verlagsgesellschaft m.b.H., established in Vienna (Aus-
                                                                         tria), and ‘Salzburger Nachrichten’ Verlags-Gesellschaft m.b.H.
—     annul the decision of the Court of Justice of 25 September         & Co KG, established in Salzburg (Austria), represented by
      2001;                                                              M. Krüger, lawyer.
 ---pagebreak--- 6.4.2002                 EN                  Official Journal of the European Communities                                      C 84/65
The applicants claim that the Court should:                             one and the same Member State. Finally, this was not a partial
                                                                        transfer of an undertaking but a merger.
—     declare that, by failing to reach a decision on the
      complaint lodged by the applicants against a concen-
      tration with a Community dimension, which was notified
      and approved at national level by the Vienna Oberlandes-
      gericht (Higher Regional Court), in its capacity as Kar-          Action brought on 18 January 2002 by Michael Gerhard
      tellgericht (Restrictive Practices Court) by decision of          Franz Platte against Commission of the European Com-
      26 February 2001, or, in the alternative, by failing to                                       munities
      require the parties to the concentration to notify the
      defendant of the concentration, the defendant failed to                                     (Case T-6/02)
      fulfil its obligations under the EC Treaty;
                                                                                (2002/C 84/119)
—     order the defendant to pay the costs.
                                                                                (Language of the case: French)
Pleas in law and main arguments                                         An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 18 January 2002 by Michael
By letter of 25 May 2001, the applicants, as owners of Austrian         Gerhard Franz Platte, residing in Tielt-Winge (Belgium), rep-
newspapers, lodged with the defendant a complaint regarding             resented by Xavier De Kesel, lawyer.
a media concentration which had been approved in Austria, to
which the companies Bertelsmann, Gruner+Jahr, Raffeisen,                The applicant claims that the Court should:
KURIER-Magazine and NEWS were parties, and which, accord-
ing to the applicants, had a Community dimension. The                   —     annul the decision of 6 September 2001 being appealed
complaint was accompanied by the request that the parties to                  against and make an order emending and implementing
the concentration be required to notify the concentration in                  what the appointing authority ought to have done,
accordance with Council Directive (EEC) No 4064/89.                           namely appoint the applicant to Grade C 4.
DG Competition took the view, in a number of letters, that              Pleas in law and main arguments
the abovementioned regulation was not applicable to the
concentration in question, as there had only been a partial             The applicant was classified, upon taking up his duties, in
transfer, which did not involve at least two undertakings with          Grade C 5. In his application, the applicant contests that
turnovers of more than EUR 250 million. DG Competition                  decision. According to the applicant, he should, in view of his
pointed out, however, that that view was not binding on the             previous experience and of the fact that the requirements of
defendant.                                                              the service call for the recruitment of a particularly well-
                                                                        qualified person, have been classified in Grade C 4.
Since the defendant failed to react within two months to the
applicants’ request for a formal decision on the complaint, the
applicants have brought an action under Article 232 EC for a
declaration of failure to act. They submit that in the absence
of a decision attributable to the defendant, it is not possible to             Removal from the register of Case T-315/00 (1)
bring an action for annulment before the Court of First
Instance, and that the applicants are directly and individually                                 (2002/C 84/120)
concerned by the defendant’s failure to adopt a decision.
                                                                                (Language of the case: Italian)
The applicants claim that the national decision is invalid under
Article 81 EC in conjunction with Regulation 4064/89,                   By order of 29 November 2001 the President of the Fourth
because, contrary to Article 21(2) of that regulation, the              Chamber of the Court of First Instance of the European
Republic of Austria applied its national competition law to a           Communities Case T-315/00 Associazione delle Cantine Socia-
concentration with a Community dimension. In addition, they             li Venete e della Cantina dei Colli Berici against Commission
claim that there are two parties to the concentration with              of the European Communities, was removed from the register.
turnovers in excess of EUR 250 million, one of which does
not achieve more than two-thirds of its annual turnover within          (1) OJ C 335 of 25 November 2000.


title: Case C-611/11 P: Appeal brought on 30 November 2011 by ara AG against the judgment of the General Court (Seventh Chamber) delivered on 22 September 2011 in Case T-174/10 ara v OHIM

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/14

         Appeal brought on 30 November 2011 by ara AG against the judgment of the General Court (Seventh Chamber) delivered on 22 September 2011 in Case T-174/10 ara v OHIM
   (Case C-611/11 P)
   2012/C 133/26
   Language of the case: French

      Parties

      Appellant: ara AG (represented by: M. Gail, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allrounder SARL

      Form of order sought

               —

               Set aside the judgment of the General Court of the European Union of 22 September 2011 in Case T-174/10;

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 (Case R 481/2009-1);

               —

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and the intervener at first instance to pay the entirety of the costs in the two instances.

      Pleas in law and main arguments

   The appellant alleges infringement by the General Court of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1)

   In that connection, the appellant alleges, first, breach of the obligation to state reasons by the General Court in that it failed, in the global assessment of the likelihood of confusion, to provide sufficient reasons with regard to the criteria of the relevant public, the comparison of the marks and the likelihood of confusion. Thus, the General Court erred in finding that the public in question consists of average consumers displaying an average level of attention when the goods concerned are purchased despite the fact that it had been established, initially, that the consumer will rarely have the chance to make a direct comparison between the different marks. Furthermore, the General Court erred in finding, when comparing the marks, that the presence of the two triangular motifs dominated the impression conveyed to the public by the mark in dispute. Consequently, the General Court overstated one or more components of the mark.
   In addition, the appellant submits that the General Court breached the obligation to state reasons to the extent that it did not refer to the documents submitted by the intervener in connection with ascertaining whether there was a likelihood of confusion.
   Lastly, the appellant submits that the General Court underestimated the importance of the principle that the competent authority has a duty to examine relevant facts of its own motion.

      (1)  OJ 2009 L 78, p. 1.


title: Case C-490/08: Action brought on 12 November 2008 — Commission of the European Communities v Kingdom of Belgium

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/15

         Action brought on 12 November 2008 — Commission of the European Communities v Kingdom of Belgium
   (Case C-490/08)
   (2009/C 6/25)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: N. Yerrell, acting as Agent)

      Defendant: Kingdom of Belgium
   Form of order sought

               —

               Declare that by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC and 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (1) or, in any event, by not communicating those measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

               —

               order the Kingdom of Belgium to pay the costs.

         Pleas in law and main arguments
   The period for transposition of Directive 2005/68/EC expired on 10 December 2007. At the date of bringing the present action, the defendant had still not adopted the necessary transposing measures or, in any event, had not yet communicated them to the Commission.

      (1)  OJ 2005 L 323, p. 1.