title: Joined Cases C-203/15 and C-698/15: Judgment of the Court (Grand Chamber) of 21 December 2016 (requests for a preliminary ruling from the Kammarrätten i Stockholm and the Court of Appeal (England & Wales) (Civil Division) — Sweden, United Kingdom) — Tele2 Sverige AB v Post- och telestyrelsen (C-203/15), Secretary of State for the Home Department v Tom Watson, Peter Brice, Geoffrey Lewis (C-698/15) (Reference for a preliminary ruling — Electronic communications — Processing of personal data — Confidentiality of electronic communications — Protection — Directive 2002/58/EC — Articles 5, 6 and 9 and Article 15(1) — Charter of Fundamental Rights of the European Union — Articles 7, 8 and 11 and Article 52(1) — National legislation — Providers of electronic communications services — Obligation relating to the general and indiscriminate retention of traffic and location data — National authorities — Access to data — No prior review by a court or independent administrative authority — Compatibility with EU law)

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/11

         Judgment of the Court (Grand Chamber) of 21 December 2016 (requests for a preliminary ruling from the Kammarrätten i Stockholm and the Court of Appeal (England & Wales) (Civil Division) — Sweden, United Kingdom) — Tele2 Sverige AB v Post- och telestyrelsen (C-203/15), Secretary of State for the Home Department v Tom Watson, Peter Brice, Geoffrey Lewis (C-698/15)
   (Joined Cases C-203/15 and C-698/15) (1)

   ((Reference for a preliminary ruling - Electronic communications - Processing of personal data - Confidentiality of electronic communications - Protection - Directive 2002/58/EC - Articles 5, 6 and 9 and Article 15(1) - Charter of Fundamental Rights of the European Union - Articles 7, 8 and 11 and Article 52(1) - National legislation - Providers of electronic communications services - Obligation relating to the general and indiscriminate retention of traffic and location data - National authorities - Access to data - No prior review by a court or independent administrative authority - Compatibility with EU law))
   (2017/C 053/13)
   Languages of the case: Swedish and English

      Referring courts

   Kammarrätten i Stockholm, the Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Appellants: Tele2 Sverige AB (C-203/15), Secretary of State for the Home Department (C-698/15)

      Respondents: Post- och telestyrelsen (C-203/15), Tom Watson, Peter Brice, Geoffrey Lewis (C-698/15)

      Interveners: Open Rights Group, Privacy International, The Law Society of England and Wales

      Operative part of the judgment

               1.

               Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication.

               2.

               Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union.

               3.

               The second question referred by the Court of Appeal (England & Wales) (Civil Division) is inadmissible.

      (1)  OJ C 221, 6.7.2015

      OJ C 98 14.3.2016.


title: Case T-246/10: Judgment of the General Court of 6 October 2011 — Industrias Francisco Ivars v OHIM — Motive (Mechanical speed reducer) (Community design — Invalidity proceedings — Registered Community design representing a mechanical speed reducer — Earlier Community design — Ground of invalidity — No individual character — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/19

         Judgment of the General Court of 6 October 2011 — Industrias Francisco Ivars v OHIM — Motive (Mechanical speed reducer)
   (Case T-246/10) (1)

   (Community design - Invalidity proceedings - Registered Community design representing a mechanical speed reducer - Earlier Community design - Ground of invalidity - No individual character - Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002)
   2011/C 340/37
   Language of the case: Spanish

      Parties

      Applicant: Industrias Francisco Ivars, SL (Xeraco, Spain) (represented by: E. Caballero Oliver and A. Sanz-Bermell y Martínez, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Motive Srl (Montirone, Italy) (represented by: I. Valdelomar Serrano and J. Mora Granell, lawyers)

      Re:

   Action brought against the decision of the Third Board of Appeal of OHIM of 16 March 2010 (Case R 1337/2008-3) relating to invalidity proceedings between Motive Srl and Industrias Francisco Ivars, SL.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Industrias Francisco Ivars, SL to pay the costs.

      (1)  OJ C 195, 17.7.2010.


title: Case F-40/11: Action brought on 5 April 2011 — ZZ v Commission

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/34

         Action brought on 5 April 2011 — ZZ v Commission
   (Case F-40/11)
   2011/C 186/63
   Language of the case: Italian

      Parties

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

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision setting out the benefits to which the applicant is entitled as a result of his permanent partial invalidity.

      Form of order sought

               —

                  Quatenus opus est, annul — in so far as it provided that the applicant was to be paid, as indeed he was paid, the sum of EUR 10 682,29 — the draft decision of 2 June 2010 of the Commission concerning the guarantees afforded to the applicant under Article 73 of the Staff Regulations in relation to an accident which he sustained on 17 June 2005;

               —

               annul — in so far as it provided that the applicant was to be paid, as indeed he was paid, the sum of EUR 10 682,29 — the decision into which the draft decision of 2 June 2010 was converted upon expiry of the period laid down by law for the notification of the draft decision to the applicant without the applicant having had the opportunity to consult the Medical Committee;

               —

               in so far as necessary, annul the measure rejecting the complaint of 26 August 2010;

               —

               order the European Commission to pay without delay to the applicant the difference between what should have been awarded to him under Article 73 of the Staff Regulations in relation to the accident in question, and the sum of EUR 10 682,29 already awarded to him, together with interest on that difference at the rate of 10 % per year, with annual capitalisation, starting from 24 August 2010;

               —

               order the Commission to pay the costs.


title: Case F-30/15: Order of the Civil Service Tribunal of 17 December 2015 — Diamantopoulos v EEAS

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/102

         Order of the Civil Service Tribunal of 17 December 2015 — Diamantopoulos v EEAS
   (Case F-30/15) (1)

   (2016/C 048/119)
   Language of the case: French
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 146, 4/5/2015, p. 50.


title: Action brought on 27 June 1997 by Heinrich Mehlhop against the Council of the European Union and the Commission of the European Communities (Case T-193/97)

text:
No C 252/38           EN                   Official Journal of the European Communities                                  16 . 8 . 97
Action brought on 24 June 1997 by Rothmans Group                      that the documents furnished, combined with the
Holdings BV against the Commission of the European                    documents denied, cannot amount to all the documents
                           Communities                                which the applicant addressed.
                        ( Case T-l 88/97
                          ( 97/C 252/80 )                             Therefore the applicant has brought this application under
                                                                      Articles 173 and 174 of the EC Treaty, submitting that the
                                                                      contested decisions refusing access to the documents in
               (Language of the case: English)                        question are in part unreasoned and in part erroneously
                                                                      reasoned, if not simply out of time altogether.
An action against the Commission of the European
Communities was brought before the Court of First                     The applicant maintains that the failure of DG XXI to
Instance of the European Communities on 24 June 1997                  reply by defining its position within one month of receipt
by Rothmans Group Holdings BV, represented by Scott                   of the application for access constituted an intention to
Crosby, with an address for service in Luxembourg at the              refuse access within the meaning of the first paragraph of
Chambers of Victor Elvinger, 31 Rue d'Eich.                           Article 2 (4 ) of the access decision. Beyond that, the
                                                                      Secretary-General's failure to define his position in time
                                                                      upon receipt of the application for review constituted a
The applicant claims that the Court should:                           refusal within the meaning of the second paragraph of the
                                                                      said Article 2 ( 4 ).
— annul the decision of the Commission of 15 May 1997
     by which it refused access to all letters from the               According to the applicant, the Commission's position
     Commission to the Member States and to all letters               contradicts the general principle of the access code that
    from the Commission to members of the Customs                     'the public will have the widest possible access to
    Code Committee — Transit section,                                 documents held by the Commission and the Council', and
                                                                      is undemocratic and wholly contrary to the intentions of
                                                                      the Community legislature and the High Contracting
— annul the decision of the Commission of 15 May 1997                 Parties .
    by which the Commission refused access to the
    questionnaire, the account of the review and the note
    mentioned in the request,
— annul the decision of the Commission of 15 May 1997
    by which it refused access to the minutes of the                  Action brought on 27 June 1997 by Heinrich Mehlhop
    Customs Code Committee — Transit Section, or in the               against the Council of the European Union and the
    alternative to annul said decision insofar as it applies                    Commission of the European Communities
    to the minutes prior to 6 June 1996,
                                                                                (Case T-193/97)
                                                                                ( 97/C 252/81 )
— in     the   alternative,    annul   the  decision    of  the
    Commission of 24 April 1997 whereby the
    Commission refused the applicant's request specified                            (Language of the case: German)
    in the application for access of 23 January 1997 for
    access to all documents without reason, and
                                                                      An action against the Council of the European Union and
                                                                      the Commission of the European Communities was lodged
— order the Commission to pay the applicant's costs                   with the Registrar of the Court of Justice of the European
    pursuant to Article 87 of the Rules of Procedure of the           Communities on 27 June 1996 by Heinrich Mehlhop, of
    Court of First Instance .                                         Asendorf ( Federal Republic of Germany ), represented by
                                                                      Eckhard Mehlhop, Rechtsanwalt, of Messrs Lohoff
                                                                      Werner & Mehlhop, Hameln, with an address for service
Pleas in law and main arguments adduced in support:                   in Luxembourg at the Chambers of Lucy Dupong, of
                                                                      Messrs Dupong & Associes, 14a Rue des Bains. In
                                                                      accordance with the first paragraph of Article 47 of the
The applicant is a holding company of a number of                     EC Statute of the Court of Justice, it has been transmitted
subsidiaries in the European Community. The group's                   to the Registrar of the Court of First Instance of the
principal activity is the manufacture, distribution and sale          European Communities .
of tobacco products, in particular cigarettes.
                                                                      The applicant claims that the Court should:
The applicant tried several times by letters addressed to
DG XXI and the Secretary-General to get access to the
abovementioned documents, which directly affect its                   — order the Commission and the Council jointly and
financial interests, but obtained only some documents                     severally to pay to the applicant DM 76 857,95
because of alleged confidentiality. The applicant submits                 together with interest at 8 % from 1 October 1993 ,
 ---pagebreak--- 16 . 8 . 97           EN                  Official Journal of the European Communities                                No C 252/39
— order the Commission and the Council jointly and                       having contributed to two training programmes
     severally to pay the costs .                                        organized by the applicant and approved by the
                                                                         European Commission ( files 870302 P3 and
                                                                         870301 PI ), the Commission having been called on to
Pleas in law and main arguments adduced in support:                      adopt such a decision by written request from the
                                                                         applicant dated 27 February 1997, received by the
                                                                         Commission on 3 March 1997,
In 1993 the applicant, a milk producer and the holder of a
special reference quantity within the meaning of the
Community rules, applied, as a participant in the EC non            — declare that the Commission is under a legal
marketing/conversion scheme, to the then Federal Office                  obligation to give a decision on the application for
for Food and Agriculture for compensation under Council                  payment of the balance pursuant to Article 6 ( 1 ) of
Regulation ( EEC ) No 2187/93 . The Federal Office, acting               Council Regulation ( EEC ) No 2950/83 of 17 October
on behalf of and on account of the Council and the                       1983 and the first paragraph of Article 124 of the EC
Commission, communicated to the applicant an offer of                    Treaty,
compensation. By his claim, the applicant seeks the
payment to him of that compensation sum. He maintains
that a binding agreement was concluded between him and               — declare that the Commission's failure to adopt that
the Commission for the payment of that sum. Even if it is                decision infringes Article 6 ( 1 ) of the said Regulation
denied that any agreement was concluded, the applicant                   and the first paragraph of Article 124 of the EC
claims that he is entitled to receive payment, if only on the            Treaty,
ground that, as a result of delay in the allocation of the
milk reference quantity, he has suffered actual loss                 — find that Article 6 ( 1 ) of the said regulation and the
equivalent to at least the sum claimed. The compensation                 first paragraph of Article 124 of the EC Treaty have
period relating to the applicant, as a SLOM-II producer,                 been infringed by the Commission as a result of the
did not expire until 15 June 1991 , since the applicant was              said failure to act,
not allocated his reference quantity until 1991 .
Consequently, as a participant in the EC non-marketing
scheme, he is entitled to claim compensation for the loss            — order the Commission to pay the costs .
of income suffered by him as a result of the fact that he
produced no milk during the period from 22 July 1987 to
15 June 1991 .                                                       Pleas in law and main arguments adduced in support:
                                                                     In support of its claims, the applicant submits that the
                                                                     Commission has exclusive competence to decide on
                                                                     applications for the payment of balances under Article 6(1 )
                                                                     of Council Regulation ( EEC ) No 2950/83 of 17 October
                                                                     1983 .
Action brought on 30 June 1997 by Eugenio Branco Lda
      against Commission of the European Communities
                        ( Case T-194/97)                             It follows that it is the Commission which assumes legal
                                                                     responsibility for the decision vis-a-vis the beneficiary of
                          ( 97/C 252/82 )                            the contribution from the ESF.
              (Language of the case: Portuguese)                     The Commission is thus under a legal obligation to give a
                                                                     decision on the application for payment of the balance
                                                                     pursuant to Article 6 ( 1 ) of the said Regulation.
 An action against the Commission of the European
 Communities was brought before the Court of First
 Instance on 30 June 1997 by Eugenio Branco Lda,                     The omission or failure to adopt such a decision
 Sociedade Comercial por Quotas de Responsabilidade                  approving or rejecting the application for payment of the
 Limitada, whose registered office is at 9 Rua Rodrigo da            balance infringes Article 6 ( 1 ) of the said Regulation and
 Fonseca , Lisbon, represented by Dr Bolota Belchior,                the first paragraph of Article 124 of the EC Treaty.
 practising in Vila Nova de Gaia, a member of the Oporto
 Bar, with an address for service in Luxembourg at the               After the formal request made by the applicant to the
 Chambers of Dr Jacques Schroder, Faltz 8c Associes, 6               Commission, two months passed without the latter having
 Rue Heine .
                                                                     adopted the measure required of it under the
                                                                     abovementioned provisions .
 The applicant claims that the Court of First Instance
 should :
                                                                     The present proceedings have thus been instituted so that
                                                                     the Commission may be declared to be in breach of the
                                                                     Treaty for failure to act.
 — establish the Commission's failure to adopt a decision
      approving the application for payment of the balance
      of financing from the European Social Fund, the Fund


title: Case T-492/14: Order of the General Court of 5 January 2015  — La Perla v OHIM — Alva Management (LA PERLA) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/26

         Order of the General Court of 5 January 2015 — La Perla v OHIM — Alva Management (LA PERLA)
   (Case T-492/14) (1)

   ((Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate))
   (2015/C 089/32)
   Language of the case: English

      Parties

      Applicant: La Perla sp. z o.o. (Warsaw, Poland) (represented by: M. Siciarek, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Alva Management GmbH (Icking, Germany) (represented by: B. Hanika, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 April 2014 (Case R 626/2013-4), relating to opposition proceedings between Alva Management GmbH and La Perla sp. z o.o.

      Operative part of the order

               1.

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

               2.

               The applicant and the intervener shall bear their own costs and shall each pay half of the costs incurred by the defendant.

      (1)  OJ C 282, 25.8.2014.


title: Case T-18/13: Action brought on 11 January 2013 — Łaszkiewicz v OHIM — CABLES Y ESLINGAS (PROTEKT)

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/28

         Action brought on 11 January 2013 — Łaszkiewicz v OHIM — CABLES Y ESLINGAS (PROTEKT)
   (Case T-18/13)
   2013/C 108/73
   Language in which the application was lodged: Polish

      Parties

      Applicant: Grzegorz Łaszkiewicz (Łódź, Poland) (represented by: J. Gwiazdowska, legal adviser)

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

      Other party to the proceedings before the Board of Appeal: CABLES Y ESLINGAS, S.A. (Cerdanyola del Valles, Barcelona, Spain)

      Form of order sought

   The applicant claims that the Court should:

               —

               set aside in its entirety the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 October 2012 in Case R 701/2011-4;

               —

               deliver final judgment — if the state of the proceedings so allows — by allowing registration of the Community trade mark applied for (Registration No 8478331);

               —

               if necessary — should the state of the proceedings so allow — refer the case back for reconsideration by the Fourth Board of Appeal, in accordance with the binding criteria laid down by the Court of Justice;

               —

               order OHIM to pay the costs of the proceedings, including the costs incurred by the applicant in his action before the Board of Appeal and before the Opposition Division of the Office for Harmonisation in the Internal Market;

               —

               examine the evidence indicated in the content of the application;

               —

               conduct the written procedure, with Polish as the language of the case.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark containing the word element ‘protekt’ for goods in Classes 6, 7, 9, 22 and 25 — Registration No 008478331

      Proprietor of the mark or sign cited in the opposition proceedings: CABLES Y ESLINGAS, S.A.

      Mark or sign cited in opposition: The word mark PROTEK, registered in Spain for goods in Classes 6 and 9

      Decision of the Opposition Division: Opposition upheld

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law:

               —

               Breach of Article 8(1)(b) of Regulation No 207/2009;

               —

               Breach of the principle of legality, including breach of Article 3(1)(a) to (d) of Directive 2008/95;

               —

               Breach of Articles 75 and 76 of Regulation No 207/2009 and of Rules 50 and 52 of Commission Regulation No 2868/95.


title: Case T-730/15 P: Appeal brought on 18 December 2015 by DI against the order of the Civil Service Tribunal of 15 October 2015 in Case F-113/13 DI v EASO

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/46

         Appeal brought on 18 December 2015 by DI against the order of the Civil Service Tribunal of 15 October 2015 in Case F-113/13 DI v EASO
   (Case T-730/15 P)
   (2016/C 098/61)
   Language of the case: English

      Parties

      Appellant: DI (Bucharest, Romania) (represented by: I. Vlaic and G. Iliescu, lawyers)

      Other party to the proceedings: European Asylum Support Office (EASO)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               annul in its entirety the order of the Civil Service Tribunal of 15 October 2015 in case F-113/13;

               —

               admit the current appeal;

               —

               annul the EASO decision to dismiss the appellant, and consequently to oblige EASO to annul all legal effects of the said decision and to re-do the factual status accordingly;

               —

               oblige the EASO to pay the appellant the amount of EUR 90 000 as material damages, and the amount of EUR 500 000 as moral damages; and

               —

               oblige EASO to pay all costs of the appellant related to the legal representation in front of the Civil Service Tribunal concerning the case F-113/13, and related to the present appeal.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on three pleas in law.

               1.

               First plea in law, alleging that the application of the appellant was admissible and grounded as it respects the correspondence between the pleas, reasons and facts mentioned within the complaint sent during the administrative procedure and the ones presented in detail to the Civil Service Tribunal.

               2.

               Second plea in law, alleging a breach of the principle for access for a fair trial and lack of fair analysis in the pre-litigation phase. The complaint of the appellant during the administrative procedure was rejected by the same person who initially decided to dismiss the appellant.

               3.

               Third plea in law, alleging a breach of the equal treatment principle by the Civil Service Tribunal.


title: Case C-83/11: Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 22 February 2011 — Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/9

         Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 22 February 2011 — Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman
   (Case C-83/11)
   2011/C 145/12
   Language of the case: English

      Referring court

   Upper Tribunal (Immigration and Asylum Chamber) London

      Parties to the main proceedings

      Applicant: Secretary of State for the Home Department

      Defendants: Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman

      Questions referred

               1.

               Does Article 3(2) of Directive 2004/38/EC (1) require a Member State to make legislative provision to facilitate entry to and or residence in a Member state to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2)?

               2.

               Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?

               3.

               Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?

               4.

               Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state?

               5.

               Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non national to be admitted to or continue to reside in its territory?

               6.

               Must the dependency on which the other family member relies in order to be admitted to the Member state continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated?

      (1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
   OJ L 158, p. 77


title: Case F-41/05: Judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 — Jacobs v Commission (Civil service — Officials — Appointment — Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations — Classification in grade under the new, less favourable rules — Article 12(3) of Annex XIII to the Staff Regulations)

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/59

         Judgment of the Civil Service Tribunal (Second Chamber) of 30 September 2010 — Jacobs v Commission
   (Case F-41/05) (1)

   (Civil service - Officials - Appointment - Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations - Classification in grade under the new, less favourable rules - Article 12(3) of Annex XIII to the Staff Regulations)
   2010/C 328/93
   Language of the case: French

      Parties

      Applicant: Kurt Jacobs (Bruges, Belgium) (represented by: L. Vogel, lawyer)

      Defendant: European Commission (represented by: H. Krämer and K. Herrmann, acting as Agents)

      Re:

   First, annulment of the Commission’s decision classifying the applicant, who was placed on a reserve list prior to the entry into force of the new Staff Regulations, under the less favourable provisions of those regulations (Article 12 of Annex XIII to Regulation (EC, Euratom) No 723/2004 amending the Staff Regulations of Officials) and, second, an application for damages

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the application;

               2.

               Orders each party to bear its own costs.

      (1)  OJ C 205, 20.8.2005, p. 26. (Case originally registered at the Court of First Instance of the European Communities as Case T-220/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005.)


title: Action brought on 5 August 1997 by the Comité Européen des Fabricants de Sucre against the Council of the European Union (Case T-229/97)

text:
C 318/30             EN                   Official Journal of the European Communities                                    18 . 10 . 97
infringements not duly found to exist. In the applicant's            applicant, or where there is no national representative
view, the length of the administrative proceeding, which             organization, challenges the Council decision, set out in
could be regarded as a lack of reasonable diligence, should          Regulation ( EC ) No 1188/97, to recognize Italy as a
be considered to be a mitigating factor.                             deficit area and to fix a derived intervention price for
                                                                     white sugar produced in Italy.
Finally, the applicant pleads misapplication of Article 3 ( 1 )
of Regulation No 17 which confers on the Commission                  Owing to the fact that the derived intervention price for
only the power to prohibit abuses found to exist. The                the marketing year 1997/98 should have been fixed before
Commission may order them not to continue, as it does,               1 August 1996 , whereas the contested regulation fixed the
and not to be repeated, as it likewise does . That Article           price on the 25 June 1997, the applicant submits that the
provides no legal basis, however, for prohibiting, by way            said Regulation was adopted with unreasonable delay.
of anticipation, abuses other than the ones formally found.          Sugar manufacturers have the right to be informed in
                                                                     good time of the price at which they may sell to the
                                                                     intervention agencies the sugar produced within the quota
                                                                     and the minimum price to be paid to beet producers .
                                                                     Furthermore, the Council did not state any reasons
Action brought on 5 August 1997 by the Comite                        justifying the decision to regard Italy as a deficit area and,
Europeen des Fabricants de Sucre against the Council of              consequently, the adoption of a derived intervention price .
                    the European Union
                       ( Case T-229/97 )
                                                                     Finally, the applicant claims that the treatment of Italy as
                         ( 97/C 318/58 )                             a deficit area, when it is not, has a negative impact on the
                                                                     European industry and on the common organization of
                                                                     the market in sugar and constitutes a breach of the
               (Language of the case: English)                       principles of non-discrimination and of Community
                                                                     preference .
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 5 August 1997 by the Comite Europeen
des Fabricants de Sucre, represented by Bernard O'Connor
and Bonifacio Garcia Porras, with an address for service
in Luxembourg at the Chambers of Arsene Kronshagen,
22, Rue Marie Adelaide .                                             Action brought on 5 August 1997 by Comafrica SpA
                                                                     and Dole Fresh Fruit Europe Ltd & Co. against the
                                                                               Commission of the European Communities
The applicant claims that the Court should:                                                  ( Case T-230/97 )
                                                                                ( 97/C 318/59 )
— pursuant to Articles 173 and 174 of the EC Treaty,
     declare void Article 1 ( f) of Regulation ( EC ) No 1188/
     97 of 25 June 1997 in so far as it affects the applicant                         (Language of the case: English)
     and the European sugar manufacturers; alternatively,
     declare the said provision of the regulation void erga
     omnes,
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 5 August 1997
— request the Council to hand over all impugned                       by Comafrica SpA and Dole Fresh Fruit Europe Ltd &c
     documents, information and methods at its disposal               Co ., represented by Bernard O'Connor, assisted by
     for the adoption of the Regulation, with regard to the           Bonifacio Garcia Porras, with an address for service in
     decision to consider Italy a deficit area;                       Luxembourg at the Chambers of Arsene Kronshagen, 22,
                                                                      rue Marie Adelaide .
 — make any additional orders which the Court considers
     necessary, and                                                   The applicants claim that the Court should :
 — order the Council to pay the costs of the proceedings .            — pursuant to Articles 173 and 174 EC, declare void
                                                                           Commission Regulation ( EC ) No 1155/97 in so far as
 Pleas in law and main arguments adduced in support:                       it affects the applicants, or, in the alternative declare
                                                                           the said Regulation void erga omnes, on the basis that
                                                                           the Commission has acted in breach of Article 40 ( 3 )
 The applicant, an international association made up of                    of the EC Treaty and contrary to the case-law of the
 national organizations of sugar manufacturers, as well as                 Court of Justice and denied the applicants their
 individual sugar companies, where their national                          fundamental rights to property and to pursue a
 representative organization is not a member of the                        professional trade or activity,


title: Order of the Court of First Instance of 10 July 2002 in Case T-146/00 DEP: S. Ruf and M. Stier v Office for the Harmonisation of the Internal Market (Trade Marks and Designs) (OHIM) (Taxation of costs)

text:
26.10.2002               EN                       Official Journal of the European Communities                                      C 261/13
                                                           COURT OF FIRST INSTANCE
       ORDER OF THE COURT OF FIRST INSTANCE                                  e sulla vegetazione’ having its registered office in Rome, Italy,
                                                                             represented by P. Grassi and G. Russo, lawyers, with an
                            of 10 July 2002                                  address for service in Luxembourg against Commission of
                                                                             the European Communities (Agents: G. Valero Jordana and
in Case T-146/00 DEP: S. Ruf and M. Stier v Office for the                   R. Amorosi) — application for the annulment of the measure
Harmonisation of the Internal Market (Trade Marks and                        allegedly contained in a letter from the Commission requesting
                         Designs) (OHIM) ( 1)                                the applicant to repay part of the sums granted under
                                                                             financing contract B4/91/3046/11396 concluded between the
                          (Taxation of costs)                                Commission and the applicant to enable the organisation of a
                                                                             conference to study the effects of atmospheric pollutants on
                           (2002/C 261/21)                                   climate and vegetation — the Court of First Instance (Fourth
                                                                             Chamber), composed of M, Vilaras, President of the Chamber,
                    (Language of the case: German)                           V. Tiili and P. Mengozzi, Judges; H. Jung, for the Registrar, has
                                                                             made an order on 10 July 2002, the operative part of which is
                                                                             as follows:
In Case T-146/00 DEP: S. Ruf, residing in Ettlingen (Germany),
and M. Stier, residing in Pfinztal (Germany), represented by                 1.    The application is dismissed as inadmissible.
V. Spitz, A.N. Klinger and A. Gaul, lawyers, with an address for
service in Luxembourg, against Office for the Harmonisation of               2.    The applicant is ordered to pay the costs.
the Internal Market (Trade Marks and Designs) (OHIM) (Agent:
E. Joly) — application for taxation of the costs to be paid by
the applicants to the defendant following the judgment of the                (1 ) OJ C 61 of 24.2.2001.
Court of First Instance of 20 June 2001 in Case T-146/00 Ruf
and Stier v OHIM (‘DAKOTA’ Image) [2001] ECR II-1797 —
the Court of First Instance (Second Chamber), composed of
R.M. Moura Ramos, President, and J. Pirrung and A.W.H. Meij,
Judges; H. Jung, Registrar, has made an order on 10 July 2002,
in which it:
                                                                             ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Fixes the total costs to be paid by the applicants to the Office in Case                                 INSTANCE
T-146/00 at EUR 2 692,63.
                                                                                of 11 July 2002
( 1) OJ C 233, 12.8.2000.
                                                                             in Cases T-107/01 R and T-175/01 R, Société des mines de
                                                                             Sacilor — Lormines v Commission of the European
                                                                                Communities
       ORDER OF THE COURT OF FIRST INSTANCE                                  (Interlocutory proceedings — Suspension of operation —
                                                                                Interim measures — Article 88 ECSC)
                            of 10 July 2002
                                                                                (2002/C 261/23)
in Case T-387/00 Comitato organizzatore del convegno
internazionale ‘Effette degli inquinamenti atmosferici sul
                                                                                (Language of the case: French)
clima e sulla vegetazione’ v Commission of the European
                           Communities (1)
(Action for annulment — Application actually concerning a                    In Cases T-107/01 R and T-175/01 R, Société des mines de
contractual dispute — Lack of jurisdiction of the Community                  Sacilor — Lormines, established in Puteaux, France, represent-
                   judicature — Inadmissibility)                             ed by R. Schmitt, avocat against Commission of the European
                                                                             Communities (Agents: G. Rozet and L. Ström) — application
                           (2002/C 261/22)                                   for suspension of the operation of the Commission– s decisions
                                                                             of 30 March, 21 April, 9 and 10 July 2001, and for interim
                     (Language of the case: Italian)                         measures ordering the Commission to uphold the complaints
                                                                             submitted to it by the applicant on 9 February and 9 May
                                                                             2001 — the President of the Court of First Instance has made
In Case T-387/00: Comitato organizzatore del convegno                        an order on 11 July 2002, the operative part of which is as
internazionale ‘Effette degli inquinamenti atmosferici sul clima             follows:


title: Joined Cases F-72/12 and F-10/13: Judgment of the Civil Service Tribunal (Second Chamber) of 21 November 2013 — Roulet v Commission (Civil Service — Remuneration — Article 66 of the Staff Regulations — Former member of the temporary staff at Grade AD12 — Recruitment as an official at Grade AD6 — Payment of remuneration equivalent to that paid to an official at Grade AD12 — Manifest error — Recovery of undue payments under Article 85 of the Staff Regulations)

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/33

      Judgment of the Civil Service Tribunal (Second Chamber) of 21 November 2013 — Roulet v Commission
      (Joined Cases F-72/12 and F-10/13) (1)

      (Civil Service - Remuneration - Article 66 of the Staff Regulations - Former member of the temporary staff at Grade AD12 - Recruitment as an official at Grade AD6 - Payment of remuneration equivalent to that paid to an official at Grade AD12 - Manifest error - Recovery of undue payments under Article 85 of the Staff Regulations)
      (2014/C 71/63)
      Language of the cases: French

         Parties

         Applicant: Josiane Roulet (Ottignies, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal and D. Abreu Caldas, lawyers)

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

         Re:

      Application for annulment of: (i) the decision rejecting a request for compensation made by the applicant on the basis of Article 90(1) of the Staff Regulations by reason of the errors made when establishing her entitlements when she took up her duties and for the delay in rectifying those errors; and (ii) the Commission’s decision relating to the recovery of a certain amount of the remuneration of the applicant, formerly a member of the temporary staff at Grade A4 (AD12), and subsequently an official at Grade AD6, pursuant to Article 85 of the Staff Regulations.

         Operative part of the judgment

      The Tribunal:

                  1.

                  Dismisses the actions in Joined Cases F-72/12 and F-10/13;

                  2.

                  Orders Ms Roulet to bear her own costs and to pay those incurred by the European Commission.

         (1)  OJ C 258, 25.8.2012, p. 29; OJ C 108, 13.4.2013, p. 39.


title: Case T-8/14: Order of the General Court of 27 June 2014  — Mogyi v OHIM (Community trade mark — Revocation of the decision of the Board of Appeal — No need to adjudicate)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/63

         Order of the General Court of 27 June 2014 — Mogyi v OHIM
   (Case T-8/14) (1)

   ((Community trade mark - Revocation of the decision of the Board of Appeal - No need to adjudicate))
   2014/C 315/105
   Language of the case: Hungarian

      Parties

      Applicant: Mogyi Kft (Csávoly, Hungary) (represented by: Zs.J. Klauber, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Sipos and A. Folliard-Monguiral, acting as Agents)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 19 September 2013 (Case R 1921/2012-1) concerning an application for registration of the word sign Just crunch it… as a Community trade mark.

      Operative part of the order

               1.

               It is no longer necessary to adjudicate on the action.

               2.

               The defendant shall bear its own costs and pay those incurred by the applicant.

      (1)  OJ C 71, 8.3.2014.


title: Case C-118/05: Action brought on 10 March 2005 by the Commission of the European Communities against the Portuguese Republic

text:
               30.4.2005

               EN

               Official Journal of the European Union

               C 106/20

         Action brought on 10 March 2005 by the Commission of the European Communities against the Portuguese Republic
   (Case C-118/05)
   (2005/C 106/40)
   Language of the case: Portuguese
   An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 10 March 2005 by the Commission of the European Communities, represented by António Caeiros and Sara Pardo, acting as Agents, with an address for service in Luxembourg.
   The Commission of the European Communities claims that the Court should:

               —

               principally, declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Portuguese Republic has failed to fulfil its obligations under Article 24(1) of that directive;

               —

               in the alternative, declare that, by failing to inform the Commission immediately of any such provisions, the Portuguese Republic has failed to fulfil its obligations under Article 24(1) of Directive 2000/60/EC;

               —

               order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposing Directive 2000/60/EC into national law expired on 22 December 2003.

      (1)  OJ L 327 of 22.12.2000, p. 1.


title: Case C-107/13: Request for a preliminary ruling from the Administrativen sad — Veliko Tarnovo (Bulgaria) lodged on 4 March 2013 — ‘FIRIN’ OOD v Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Veliko Tarnovo

text:
               4.5.2013

               EN

               Official Journal of the European Union

               C 129/11

         Request for a preliminary ruling from the Administrativen sad — Veliko Tarnovo (Bulgaria) lodged on 4 March 2013 — ‘FIRIN’ OOD v Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Veliko Tarnovo
   (Case C-107/13)
   2013/C 129/19
   Language of the case: Bulgarian

      Referring court

   Administrativen sad — Veliko Tarnovo

      Parties to the main proceedings

      Applicant:‘FIRIN’ OOD

      Defendant: Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Veliko Tarnovo

      Questions referred

               1.

               In cases such as that in the main proceedings, in which value added tax connected with a payment made in advance for a future clearly defined taxable supply of goods is immediately and effectively deducted, are the provisions of Article 168(a), in conjunction with Article 65, Article 90(1) and Article 185(1), of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be consistently interpreted as meaning that, in light of a failure, for objective and/or subjective reasons, to render the principal counter-performance in accordance with the terms and conditions of supply, the right to deduct input tax at the date on which it is exercised must be refused?

               2.

               Does it follow from such a consistent interpretation, having regard to the principle of the neutrality of value added tax, that in this situation the supplier’s objective possibility of adjusting the value added tax charged and/or the basis of assessment of the tax on the invoice in the manner provided for under national law is (or is not) significant; and how might such an adjustment affect the refusal to allow the original deduction of input tax?

               3.

               In the light also of recital 44 in the preamble to Directive 2006/112, is Article 205, in conjunction with Article 168(a) and Article 193, to be interpreted as meaning that the Member States are permitted to refuse to allow the recipient of a supply to deduct input tax by applying only such criteria as they themselves have laid down in their national legislation, according to which a liability to tax is imposed on a person other than the taxable person where in such a case the ultimate tax outcome would differ from the outcome if the rules established by the Member State had been strictly observed?

               4.

               If the answer to the third question should be in the affirmative: are national legal provisions such as those in the main proceedings permissible in the context of the application of Article 205 of Directive 2006/112 and compatible with the principles of effectiveness and proportionality if they introduce joint and several liability for the payment of value added tax by reference to suppositions that are not based on objective facts that can be directly established but on expressed precepts of civil law, disputes in respect of which are conclusively settled on other legal grounds?

      (1)  OJ 2006 L 347, p. 1.


title: Case C-410/11: Judgment of the Court (Third Chamber) of 22 November 2012 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Pedro Espada Sánchez, Alejandra Oviedo Gonzáles, Lucía Espada Oviedo, Pedro Espada Oviedo v Iberia Líneas Aéreas de España SA (Air transport — Montreal Convention — Article 22(2) — Liability of carriers in respect of baggage — Limits of liability in the event of the destruction, loss, damage or delay of baggage — Shared baggage belonging to a number of passengers — Baggage checked in by one of those passengers)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/12

         Judgment of the Court (Third Chamber) of 22 November 2012 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Pedro Espada Sánchez, Alejandra Oviedo Gonzáles, Lucía Espada Oviedo, Pedro Espada Oviedo v Iberia Líneas Aéreas de España SA
   (Case C-410/11) (1)

   (Air transport - Montreal Convention - Article 22(2) - Liability of carriers in respect of baggage - Limits of liability in the event of the destruction, loss, damage or delay of baggage - Shared baggage belonging to a number of passengers - Baggage checked in by one of those passengers)
   2013/C 26/21
   Language of the case: Spanish

      Referring court

   Audiencia Provincial de Barcelona

      Parties to the main proceedings

      Applicants: Pedro Espada Sánchez, Alejandra Oviedo Gonzáles, Lucía Espada Oviedo, Pedro Espada Oviedo

      Defendant: Iberia Líneas Aéreas de España SA

      Re:

   Reference for a preliminary ruling — Audiencia Provincial de Barcelona — Interpretation of Articles 3(3) and 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), (Council Decision 2001/539/EC, OJ 2001 L 194, p. 38) — Air carrier liability in respect of the carriage of passengers and their baggage by air — Limits of liability in the event of the destruction, loss, damage or delay of baggage

      Operative part of the judgment

   Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001, read in conjunction with Article 3(3) of that convention, must be interpreted as meaning that the right to compensation and the limits to a carrier’s liability in the event of loss of baggage apply also to a passenger who claims that compensation by virtue of the loss of baggage checked in in another passenger’s name, provided that that lost baggage did in fact contain the first passenger’s items.

      (1)  OJ C 290, 1.10.2011.


title: Case T-346/12: Judgment of the General Court of 15 September 2015 — Hungary v Commission (Agriculture — Common organisation of the markets — Fruit and vegetable sector — National financial assistance granted to producer organisations — Commission implementing decision concerning the reimbursement by the European Union of national financial assistance granted by Hungary to its producer organisations — Article 103e of Regulation (EC) No 1234/2007 — Article 97 of Regulation (EC) No 1580/2007)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/26

         Judgment of the General Court of 15 September 2015 — Hungary v Commission
   (Case T-346/12) (1)

   ((Agriculture - Common organisation of the markets - Fruit and vegetable sector - National financial assistance granted to producer organisations - Commission implementing decision concerning the reimbursement by the European Union of national financial assistance granted by Hungary to its producer organisations - Article 103e of Regulation (EC) No 1234/2007 - Article 97 of Regulation (EC) No 1580/2007))
   (2015/C 363/33)
   Language of the case: Hungarian

      Parties

      Applicant: Hungary (represented by: initially M. Fehér and K. Szíjjártó, then M. Fehér, acting as Agents)

      Defendant: European Commission (represented by: B. Béres, N. Donnelly and B. Schima, acting as Agents)

      Re:

   Annulment of Commission Implementing Decision C (2012) 3324 final of 25 May 2012 on national financial assistance granted to producer organisations

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Hungary to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 311, 13.10.2012.


title: Case C-26/03: Reference for a preliminary ruling by the Oberlandesgericht Naumburg by order of that Court of 8 January 2003 in the procurement review proceedings, Parties to the proceedings being 1. The City of Halle, 2. RPL Recyclingpark Lochau GmbH and 3. The Thermische Restabfall- und Energieverwertungsanlage TREA Leuna consortium

text:
26.4.2003               EN                        Official Journal of the European Union                                             C 101/15
       b)   Under the Community law principle of pro-                            of a particular trader is that sufficient of itself to prove
            portionality, is the discretion to be exercised in                   that the shape has acquired a distinctive character within
            assessing the impact of overlaying waste that has                    the meaning of Art 3(3) of the Directive?
            not been treated prior to landfill with waste treated
            by thermal or mechanical and biological processes             3.     If that is insufficient, must it also be proved that the shape
            prior to landfill wide or narrow? Does the principle                 is used and relied upon by the relevant public as a
            of proportionality permit hazards caused by waste                    guarantee of trade origin?
            treated prior to landfill by mechanical processes
            alone to be offset by other safeguards?                       4.     If the preponderance of the public recognise a shape
                                                                                mark as the product of one trader but a significant
                                                                                minority also regard other shapes in use by other traders
( 1) OJ L 182 of 16.7.1999, p. 1 (Council Directive 1999/31/EC of                as the shape applied for, has the shape mark acquired a
     26 April 1999 on the landfill of waste).                                    ‘distinctive character’ within the meaning of Art 3(3) of
                                                                                the Directive?
                                                                          (1 ) First Council Directive 89/104/EEC of 21 December 1988 to
                                                                               approximate the laws of the Member States relating to trade
                                                                               marks (OJ L 40 11.2.1989, p. 1).
Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 18 December 2002, in the case of
      Société de produits Nestlé SA against Unilever plc
                                                                          Reference for a preliminary ruling by the Oberlandesge-
                            (Case C-7/03)                                 richt Naumburg by order of that Court of 8 January 2003
                                                                          in the procurement review proceedings, Parties to the
                          (2003/C 101/26)                                 proceedings being 1. The City of Halle, 2. RPL Recy-
                                                                          clingpark Lochau GmbH and 3. The Thermische
                                                                          Restabfall- und Energieverwertungsanlage TREA Leuna
                                                                                consortium
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of                                                  (Case C-26/03)
Justice (England & Wales), Chancery Division, dated 18 Decem-
ber 2002, which was received at the Court Registry on
                                                                                (2003/C 101/27)
9 January 2003, for a preliminary ruling in the case of Société
de produits Nestlé SA and Unilever plc on the following
questions:
                                                                          Reference has been made to the Court of Justice of the
1.     When considering signs which consist of the shape of               European Communities by order of the Oberlandesgericht
       goods, what is meant by ‘the nature of the goods                   Naumburg (Higher Regional Court, Naumburg) of 8 January
       themselves’ in Art 3(1)(e) of the Trade Marks Directive            2003, received at the Court Registry on 23 January 2003, for
       89/104 ( 1)? and in particular does that nature arise from:        a preliminary ruling in the procurement review proceedings,
                                                                          Parties to the proceedings being 1. The City of Halle, 2. RPL
       (a)  the specification of goods for which the trade mark           Recyclingpark Lochau GmbH and 3. The Thermische
            is registered (or applied for);                               Restabfall- und Energieverwertungsanlage TREA Leuna consor-
                                                                          tium, on the following questions:
       (b) the kind of goods for which the mark is used
            regarded as articles of commerce;                             I.     1.    Does the first sentence of Article 1(1) of Council
                                                                                Directive 89/665/EEC of 21 December 1989 on the
                                                                                coordination of the laws, regulations and adminis-
       (c)  only the inherent nature of non-man made articles;
                                                                                trative provisions relating to the application of
            or
                                                                                review procedures to the award of public supply and
                                                                                public works contracts ( 1), as replaced by Article 41
       (d) the shape of the goods which makes the product                              of Council Directive 92/50/EEC of 18 June 1992
            different in appearance from similar competitive                           relating to the coordination of procedures for the
            products;                                                                  award of public service contracts ( 2), require Member
                                                                                States to ensure that a decision taken by a con-
       (e)  something else, and if so what?                                            tracting authority to award a public contract other-
                                                                                wise than by means of a procedure which complies
2.     Where the shape of a product which has been on the                              with the directives relating to the award of public
       market is merely shown to be recognised by a substantial                        contracts may be reviewed effectively and as rapidly
       proportion of the relevant public as denoting the goods                         as possible?
 ---pagebreak--- C 101/16             EN                        Official Journal of the European Union                                            26.4.2003
    2.   Does the first sentence of Article 1(1) of Directive                      2.1. Is a semi-public company to be deemed to be
         89/665 require Member States to ensure that                                     part of the contracting authority’s undertaking
         decisions of contracting authorities made prior to                              in terms of structure and degree of control
         the issue of a formal invitation to tender, in particu-                         where the contracting authority ‘controls’ it,
         lar the decision of the preliminary questions as to                             for example within the meaning of Article 1(2)
         whether a particular procurement process falls                                  and Article 13(1) of Council Directive 93/
         within the personal or material scope of application                            38/EEC of 14 June 1993 coordinating the
         of the directives relating to the award of public                               procurement procedures of entities operating
         contracts or, by way of exception, is outside the                               in the water, energy, transport and telecom-
         scope of procurement law, may be reviewed effec-                                munications sectors (5), as amended by the
         tively and as rapidly as possible?                                              1994 Acts of Accession ( 6) and by Directive
                                                                                98/4/EC of the European Parliament and of
                                                                                the Council of 16 February 1998 amending
                                                                                Directive 93/38/EEC coordinating the procure-
                                                                                ment procedures of entities operating in the
                                                                                water, energy, transport and telecommuni-
                                                                                cations sectors (7)?
    3.   If question I.1 is answered in the affirmative and
         question I.2 is answered in the negative: is the
         obligation of a Member State to ensure that a
                                                                                2.2. Does any influence the private co-shareholder
         decision taken by a contracting authority to award a
                                                                                in the semi-public company is entitled in law
         public contract otherwise than by means of a
                                                                                to exert over the contracting partner’s strategic
         procedure which complies with the directives relat-
                                                                                objectives and/or individual decisions relating
         ing to the award of public contracts may be reviewed
                                                                                to the management of its undertaking preclude
         effectively and as rapidly as possible satisfied where
                                                                                attributing the semi-public company to the
         review procedures cannot be raised until a specified,
                                                                                contracting authority’s undertaking?
         formal stage in the procurement has been reached,
         for example the commencement of oral or written
         negotiations with a third party?
                                                                                2.3. Is a semi-public company to be deemed to be
                                                                                part of the contracting authority’s undertaking
                                                                                in terms of structure and degree of control
                                                                                where, so far as the procurement process
                                                                                in question is concerned, the latter has a
                                                                                comprehensive right of direction in respect
II. 1.   Where a contracting authority such as a regional or                             only of decisions relating to concluding the
         local authority plans to conclude in writing, with                              contract and supplying the services under it?
         an entity which is formally distinct from it (‘the
         contracting partner’), a service contract for pecuniary
         interest which would fall within Directive 92/50                          2.4. Is a semi-public company to be deemed to be
         relating to the coordination of procedures for the                              part of the contracting authority’s undertaking
         award of public service contracts, but, by way of                               in terms of carrying out the essential part of its
         exception, the contract would not be a public service                           activities together with the contracting auth-
         contract for the purposes of Article 1(a) of Directive                          ority where at least 80 % of the undertaking’s
         92/50, as amended by the 1994 Acts of Accession (3)                             average turnover within the Community during
         and European Parliament and Council Directive 97/                               the past three years in the services sector has
         52/EC (4), if the contracting partner were to be                                derived from the supply of services to the
         deemed to be part of the public administration or,                              contracting authority or undertakings affiliated
         as the case may be, of the contracting authority’s                              to or forming part of the contracting authority
         undertaking (‘procurement-exempt self-supply’),                                 (or, where the mixed undertaking has been in
         does the mere fact that a private undertaking is a                              operation for less than three years, it is expected
         shareholder in the contracting partner always pre-                              that it will satisfy this 80 % rule)?
         clude the classification of such a contract as a
         procurement-exempt self-supply?
                                                                       (1 ) OJ L 395 of 30.12.1989, p. 33.
                                                                       (2 ) OJ L 209 of 24.07.1992, p. 1.
                                                                       (3 ) OJ C 241 of 29.8.1994, p. 233.
                                                                       (4 ) OJ L 328 of 13.10.1997, p. 1.
                                                                       (5 ) OJ L 199 of 9.8.1993, p. 84.
    2.   If question II.1 is answered in the negative: what are        (6 ) OJ C 241 of 29.8.1994, p. 228.
         the criteria for determining whether a contracting            (7 ) OJ L 101 of 16.2.1998, p. 1.
         partner whose shareholders include a private person
         (‘semi-public company’) is to be deemed to be part
         of the public administration or, as the case may be, of
         the contracting authority’s undertaking? Specifically:


title: Case T-351/03: Action brought on 10 October 2003 by Schneider Electric S.A. against the Commission of the European Communities

text:
10.1.2004               EN                          Official Journal of the European Union                                             C 7/37
Pleas in law and main arguments                                             Electric S.A., established in Rueil-Malmaison (France), rep-
                                                                            resented by M. Pittie and A. Winckler, lawyers.
The contested decision by the Commission approves the
concentration of several Austrian undertakings with the under-              The applicant claims that the Court should:
takings E&S GmbH and Verbund Austrian Power Trading AG,
subject to conditions.                                                      —     order the Community to pay it the sum of
                                                                                EUR 1 663 734 716,76;
The applicants claim that E&S GmbH and Verbund Austrian
Power Trading AG are not a full-function joint venture for the              —     such sum to be reduced, if appropriate, by an amount
purpose of Article 3 of the Merger Regulation (1) in conjunction                  not exceeding EUR 1 663 595,74, depending on the
with the Notice on the concept of full-function joint ven-                        outcome of the applications for taxation of the costs in
tures (2). In particular, there is a lack of joint control, sufficient            Cases T-310/01, T-77/02 and T-77/02 R;
independent resources, independent staff management and the
power to procure a substantial proportion of electrical current             —     such sum to be increased by interest accrued since
from outside the parent company’s sphere of influence and to                      4 December 2002 until full payment thereof, at the rate
be allowed to sell it freely on the market. Concerted practices                   of 4 % per year;
directly related to that merger also invalidate the proposal
under Article 2(4) of the Regulation in conjunction with                    —     such sum to be increased by the amount of tax for which
Article 81(1) and (2) EC. The Commission should have come                         Schneider will be liable on its receipt;
to that conclusion when it examined the proposal.
                                                                            —     order the Commission to pay all the costs.
The applicants also claim that, in addition to that merger, a
likely ‘group effect’ can be expected to result in further
concerted practices, which would also be invalid under
Article 81(2) EC.                                                           Pleas in law and main arguments
Moreover, the applicants maintain that the planned project                  The applicant company in this case seeks to obtain compen-
would greatly restrict free competition in the Austrian elec-               sation for the loss which it suffered as a result of the
tricity market and further seal off the Austrian electricity                Commission’s conduct in dealing with Case COMP/M.2283 —
market from that of the European Community, since it would                  Schneider Electric/Legrand, which gave rise to the judgments
further raise the threshold for access to the Austrian electricity          in Case T-310/01 (1) and Case T-77/02 (2).
market. The conditions laid down by the Commission will not
alter that result.
                                                                            It claims in that regard that the Commission, in the course of
                                                                            the proceeding which led to the prohibition decision of
(1) Council Regulation (EEC) No 4064/89 on the control of concen-           10 October 2001, made numerous errors most of which were
    trations between undertakings (OJ 1990 L 257, p. 13).                   found established by the Court of First Instance. It also claims
(2) OJ 1998 C 66, p. 1.                                                     that, during the proceeding after that prohibition decision, the
                                                                            Commission made errors, not yet established by the Court,
                                                                            which have increased the damage suffered. In its view, such
                                                                            conduct by the Commission should be regarded as manifestly
                                                                            and seriously exceeding the limits of its discretion to assess the
                                                                            compatibility of a concentration (with the common market).
Action brought on 10 October 2003 by Schneider Electric                     It is a question, in particular, of a lack of fairness by the
S.A. against the Commission of the European Communi-                        Commission in the proceeding which led to the decision of
                                  ties                                      10 October 2001, of infringement of the applicant’s defence
                                                                            rights, of orchestration of the relations between the parties to
                          (Case T-351/03)                                   the concentration, of infringement of the right to be heard by
                                                                            an impartial authority, of its intransigence concerning the
                                                                            detailed rules of the separation imposed on 30 January 2002,
                            (2004/C 7/68)                                   of serious and manifest failure to take into account its exclusive
                                                                            jurisdiction and of the erroneous analysis of the corrective
                    (Language of the case: French)                          measures proposed in November 2002.
                                                                            (1) Schneider v Commission [2002] ECR II-4071.
                                                                            (2) Schneider v Commission [2002] ECR II-4201.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 October 2003 by Schneider


title: Case T-135/07: Judgment of the General Court (Seventh Chamber) of 17 January 2012 — Italy v Commission (Health policy — Avian influenza — Italian market in poultrymeat — Request of the Italian authorities to adopt exceptional measures to support the market — Commission decision rejecting that request)

text:
               25.2.2012

               EN

               Official Journal of the European Union

               C 58/7

         Judgment of the General Court (Seventh Chamber) of 17 January 2012 — Italy v Commission
   (Case T-135/07) (1)

   (Health policy - Avian influenza - Italian market in poultrymeat - Request of the Italian authorities to adopt exceptional measures to support the market - Commission decision rejecting that request)
   2012/C 58/10
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Aieelo, G. Palmieri, lawyers, and by M. Moretto, lawyer)

      Defendant: European Commission (represented by: C. Cattabriga, Agent)

      Re:

   Application for annulment of the Commission’s decision of 7 February 2007 rejecting the request of the Italian authorities to adopt exceptional measures to support the Italian market in poultrymeat within the meaning of Article 14 of Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organisation of the market in poultrymeat (OJ 1975 L 282, p. 77).

      Operative part of the judgment

   The Court:

               1.

               Annuls the Commission’s decision of 7 February 2007 rejecting the request of the Italian authorities to adopt exceptional measures to support the Italian market in poultrymeat within the meaning of Article 14 of Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organisation of the market in poultrymeat;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 140, 23.6.2007.


title: Case T-613/97: Judgment of the Court of First Instance of 7 June 2006 — UFEX and Others v Commission (State aid — Postal sector — Public undertaking entrusted with a service of general economic interest — Logistical and commercial assistance provided to a subsidiary not operating in a reserved sector — Appeal — Referral of a case back to the Court of First Instance)

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/15

         Judgment of the Court of First Instance of 7 June 2006 — UFEX and Others v Commission
   (Case T-613/97) (1)

   (State aid - Postal sector - Public undertaking entrusted with a service of general economic interest - Logistical and commercial assistance provided to a subsidiary not operating in a reserved sector - Appeal - Referral of a case back to the Court of First Instance)
   (2006/C 190/25)
   Language of the case: French
   Parties

      Applicants: Union française de l'express (UFEX) (Roissy-en-France, France), DHL International SA (Roissy-en-France), Federal express international (France) SNC (Gennevilliers, France) and CRIE SA (Asnières, France) (represented by É. Morgan de Rivery and J. Derenne, lawyers)

      Defendant: Commission of the European Communities (represented by G. Rozet and D. Triantafyllou, Agents)

      Interveners in support of the defendant: French Republic (represented by G. de Bergues, R. Abraham and F. Million, Agents), Chronopost SA (Issy-les-Moulineaux, France) (represented by V. Bouaziz Torron and D. Berlin, lawyers) and La Poste (Paris, France) (represented by H. Lehman, lawyer)
   Re:
   Application for annulment of Commission Decision 98/365/EC of 1 October 1997 concerning alleged State aid granted by France to SFMI-Chronopost (OJ 1998 L 164, p. 37)
   Operative part of the order

               1.

               Commission Decision 98/365/EC of 1 October 1997 concerning alleged State aid granted by France to SFMI-Chronopost is annulled in so far as that decision finds that neither the logistical and commercial assistance provided by La Poste to its subsidiary, SFMI-Chronopost, nor the transfer of Postadex constitute State aid to SFMI-Chronopost;

               2.

               The Commission shall bear its own costs and 75 % of the applicants' costs, apart from those caused by the interventions, before the Court of First Instance and the Court of Justice;

               3.

               The applicants shall bear the remainder of their own costs before the Court of First Instance and the Court of Justice;

               4.

               The French Republic, Chronopost SA and La Poste shall bear their own costs before the Court of First Instance and the Court of Justice.

      (1)  OJ C 72, 7.3.1998