title: Case C-145/03: Reference for a preliminary ruling by the Juzgado de lo Social by order of that Court of 6 November 2002 in the social security proceedings brought by Ms Annette Keller against Instituto Nacional de la Salud (INSALUD) and Instituto Nacional de la Seguridad Social (INSS)

text:
C 146/26               EN                        Official Journal of the European Union                                            21.6.2003
Action brought on 31 March 2003 by Commission of the                     (National Social Security Institute) (INSS) on the following
    European Communities against Portuguese Republic                     questions:
                         (Case C-144/03)
                                                                         1.      Are Form E-111 and in particular Form E-112, the issue
                         (2003/C 146/43)                                         of which is provided for in Articles 22(1)(c) of Regulation
                                                                                No 1408/71 (1) and Article 22(1) and (3) of Regulation
                                                                                No 574/72 ( 2), binding on the competent institution
An action against the Portuguese Republic was brought before                     which issues them (in this case the Spanish Social
the Court of Justice of the European Communities on 31 March                     Security) as regards the diagnosis made by the institution
2003 by the Commission of the European Communities,                              of the place of residence (in this case the German Public
represented by M. França and J. Flett, acting as Agents, with an                 Health Service), and specifically the conclusions reached
address for service in Luxembourg.                                               therein that the worker required an immediate surgical
                                                                                operation as the only treatment capable of saving her life
                                                                                and that the operation could only be carried out by a
The applicant claims that the Court should:                                      hospital in a country not belonging to the European
                                                                                Union, namely the University Clinic in Zurich, Switzer-
—     Declare that, by failing to adopt and bring into force the                 land, so that the institution of the place of residence may
      laws, regulations and administrative provisions necessary                  send the worker to that hospital without the competent
      to comply with Commission Directive 2000/52/EC (1) of                      institution being authorised to require the worker to
      26 July 2000 amending Directive 80/723/EEC on the                          return so that it can carry out the medical examinations
      transparency of financial relations between Member                         it considers appropriate and offer him [her] the care
      States and public undertakings, the Portuguese Republic                    options appropriate for the pathology which he [she]
      has failed to fulfil its obligations under Article 2 of                    presents?
      Directive 2000/52/EC;
—     declare in any event that, by failing to communicate
      forthwith those provisions to the Commission, the Portu-           2.      Is the principle of equal treatment laid down in Article 3
      guese Republic has failed to fulfil its obligations under                  of Regulation No 1408/71, which provides that workers
      Article 2 of Directive 2000/52/EC;                                         are to ‘... enjoy the same benefits under the legislation of
                                                                                any Member State as the nationals of that State’, in
—     order the Portuguese Republic to pay the costs.                            conjunction with Articles 19(1)(a) and 22(1)(i) of that
                                                                                regulation, which provide that a worker residing in the
                                                                                territory of another Member State is to be entitled to
Pleas in law and main arguments                                                  benefits in kind provided on behalf of the institution of
                                                                                the place of stay or residence in accordance with the
                                                                                provisions which it applies, as though he were insured
The period prescribed for implementation of the directive                        with it, to be interpreted as meaning that the competent
expired on 31 July 2001.                                                         institution is required to assume the costs of the health
                                                                                care provided by a country outside the European Union
( 1) OJ L 193 of 29.7.2000, p. 75.                                               when it is established that if the worker had been affiliated
                                                                                to or been insured by the institution of the place of
                                                                                residence he would have been entitled to that health
                                                                                benefit, when in addition the said health care — that is,
                                                                                health care in cases of life-threatening emergency pro-
                                                                                vided by private centres, including those in countries not
                                                                                belonging to the European Union — is among the
Reference for a preliminary ruling by the Juzgado de lo                          benefits provided for by the legislation of the competent
Social by order of that Court of 6 November 2002 in the
                                                                                State?
social security proceedings brought by Ms Annette Keller
against Instituto Nacional de la Salud (INSALUD) and
       Instituto Nacional de la Seguridad Social (INSS)
                                                                         (1 ) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on
                         (Case C-145/03)
                                                                              the application of social security schemes to employed persons
                                                                              and their families moving within the Community (OJ L 149 of
                         (2003/C 146/44)                                      05.07.1971, p. 2).
                                                                         (2 ) Regulation (EEC) No 574/72 of the Council of 21 March 1972
                                                                              fixing the procedure for implementing Regulation (EEC) No 1408/
Reference has been made to the Court of Justice of the                        71 on the application of social security schemes to employed
                                                                              persons and their families moving within the Community (OJ
European Communities by order of the Juzgado de lo Social                     L 74 of 27.03.1972, p. 1).
(Social Court) of 6 November 2002, received at the Court
Registry on 31 March 2003, for a preliminary ruling in the
social security proceedings brought by Ms Annette Keller
against Instituto Nacional de la Salud (National Health Institute)
(INSALUD) and Instituto Nacional de la Seguridad Social


22 . 6 . 96         I EN |                   Official Journal of the European Communities                              No C 180/27
      Removal from the register of Case C-294/94 ( x )                        Removal from the register of Case C-230/95 (')
                           ( 96/C 180/64 )                                                           96/C 180/68 )
By order of 12 March 1996 , the President of the Court of               By order of 19 March 19 96 , the President of the Court of
Justice of the European Communities ordered the removal                 Justice of the European Communities ordered the removal
from the register of Case C-294/94 ( reference for a                    from the register of Case C-230/95 : Council of the European
preliminary ruling from the Juzgado Central de lo Penal de              Union v . European Parliament.
la Audiencia Nacional ): criminal proceedings against Luis
Carlos Quintanilha .                                                    (>) OJ No C 208 , 12 . 8 . 1995 .
(') OJ No C 351 , 10 . 12 . 1994 .
                                                                              Removal from the register of Case C-256/95 ( ] )
                                                                                ( 96/C 180/69 )
       Removal from the register of Case C-310/94 ( 1 )                 By order of 19 March 1996 , the President of the Court of
                            ( 96/C 180/65 )                             Justice of the European Communities ordered the removal
                                                                        from the register of Case C-256/95 : Commission of the
By order of 16 January 1996 , the President of the Second               European Communities v. French Republic .
Chamber of the Court of Justice of the European
Communities ordered the removal from the register of Case               (') OJ No C 248 , 23 . 9 . 1995 .
C-310/94 ( reference for a preliminary ruling from the
Tribunal de Commerce de Saintes ): Garage Ardon SA,
Bernard Martin — Garage Colin-Martin, Relais de
Saintonge SARL and Bernard Menet SARL v . Garage                              Removal from the register of Case C-318/95 ( )
Trabisco SA .
                                                                                ( 96/C 180/70
C ) OJ No C 380, 31 . 12 . 1994 .                                       By order of 14 March 1996 , thue President of the Court of
                                                                        Justice of the European Communities ordered the removal
                                                                        from the register of Case C-318/95 : Commission of
                                                                        European Communities v. Ireland .
        Removal from the register of Case C-20/95 ( )                   (•) OJ No C 333 , 9 . 12 . 1995 .
                            ( 96/C 180/66 )
By order of 12 March 1996 , the President of the Court of
Justice of the European Communities ordered the removal                       Removal from the register of Case C-374/95 (')
 from the register of Case C-20/95 ( reference for a                                                  96/C 180/71
preliminary ruling from the Juzgado Central de lo Penal de
 la Audiencia Nacional ): criminal proceedings against Oscar            By order of 12 March 1996 , the President of the Court of
Weg.                                                                    Justice of the European Communities ordered the removal
 (') OJ No C 74 , 25 . 3 . 1995 .
                                                                         from the register of Case C-374/95 ( reference for a
                                                                        preliminary ruling from the Southampton Industrial
                                                                        Tribunal ): James Paul Barker v . Service Children's
                                                                         Schools .
                                                                         (') OJ No C 31 , 3 . 2 . 1996 .
        Removal from the register of Case C-33/95 ()
                             ( 96/C 180/67 )
 By order of 20 March 1996 , the President of the Court of
                                                                              Removal from the register of Case C-381/95 ( )
Justice of the European Communities ordered the removal
 from the register of Case C-33/95 ( reference for a                                                ( 96/C 180/72 )
 preliminary ruling from the Tribunal de Grande Instance de
 Saint-Nazaire ): SARL Polypièces v. Directeur des Services              By order of 27 March 1996 , the President of the Court of
 Fiscaux de Loire-Atlantique .                                          Justice of the European Communities ordered the removal
                                                                         from the register of Case C-381 /95 : Commission of
 (') OJ No C 74, 25 . 3 . 1995 .                                         European Communities v. Kingdom of Spain .
                                                                         (') OJ No C 31 , 3 . 2 . 1996 .


title: Case T-165/14: Action brought on 7 March 2014  — ANKO v Commission and REA

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/47

         Action brought on 7 March 2014 — ANKO v Commission and REA
   (Case T-165/14)
   2014/C 175/65
   Language of the case: Greek

      Parties

      Applicant: ANKO AE Antiprosopeion, Emporiou kai Viomichanias (Athens, Greece) (represented by: V. Christianos, lawyer)

      Defendant: European Commission and Research Executive Agency (REA)

      Form of order sought

   The applicant claims that the General Court should:

               —

               Declare that the suspension of payment which was imposed and is maintained by the REA acting under powers delegated to it by the Commission in respect of the amount which the Commission remains liable to pay to the applicant as its portion in respect of the ESS project is a breach of the latter’s contractual obligations;

               —

               Declare that the amount of EUR 125 253,82 which the Commission continues not to have paid as its portion in respect of the ESS project constitutes eligible costs and, consequently, the Commission is under an obligation to pay it to ΑΝΚΟ;

               —

               Declare that the entire amount of EUR 216 172,68 which the Commission has already paid to the applicant as its portion in respect of the ESS project constitutes eligible costs,·and

               —

               Order the REA and the Commission to pay the applicant’s legal costs.

      Pleas in law and main arguments

   This action concerns the liability of the REA and the Commission under the contract No 217 951 for the performance of the ESS project, under Article 272 TFEU.
   In particular, the applicant maintains that the REA, acting under powers delegated to it by the Commission, without any justification and in the breach of the ESS project agreement, suspended payment to ΑΝΚΟ. Further, the applicant maintains that the Commission, by seeking to apply the ‘extrapolation’ method, disputed, without any legal basis and in breach of both the agreement and of applicable law, the eligibility of almost the whole of the costs declared by ΑΝΚΟ in respect of the ESS project.


title: Case T-145/15: Action brought on 29 March 2015 — Romania v European Commission

text:
               1.6.2015

               EN

               Official Journal of the European Union

               C 178/20

         Action brought on 29 March 2015 — Romania v European Commission
   (Case T-145/15)
   (2015/C 178/20)
   Language of the case: Romanian

      Parties

      Applicant: Romania (represented by: R. Radu, V. Angelescu, R. Mangu, D. Bulancea, Agents)

      Defendant: European Commission

      Form of order sought

               —

               Partial annulment of Commission Implementing Decision (EU) 2015/103 of 16 January 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD);

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging incorrect exercise of the European Commission’s power to exclude amounts from European Union financing

                           —

                           By applying the flat rate corrections set out in Implementing Decision (EU) 2015/103, the Commission infringed Article 52 of Regulation (EU) 1306/2013 of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 and the Commission Guidelines for applying financial corrections set out in Commission Document No VI/5330/97 of 23 December 1997 entitled ‘Guidelines for the calculation of financial consequences when preparing the decision regarding the clearing of the accounts of the EAGGF Guarantee Section’.

                           —

                           The Commission was required to establish the corrections by identifying amounts unduly spent by Romania, and not to apply flat rate corrections bearing in mind that the nature of the situation did not require this and that the Romanian State had made the necessary information available to the Commission to calculate the corrections. In those circumstances it cannot be considered that a disproportionate effort was required on the part of the Commission, in order to calculate the corrections based on actual loss of funds.

               2.

               Second plea in law, alleging insufficient and inadequate reasons for the contested decision

                           —

                           Implementing Decision (EU) 2015/103 was not supported by sufficient reasons since when adopting that decision, the Commission did not give sufficient reasons for choosing to apply a flat rate calculation to the irregularities found in the audits, and has failed adequately to justify why the arguments raised by Romania regarding the possibility of applying of a calculated correction cannot be accepted and taken into consideration in establishing the final adjustment.

               3.

               Third plea in law, alleging breach of the principle of proportionality

                           —

                           The contested decision breaches the principle of proportionality in so far as application of a flat rate correction of 10 % regarding the expenditure for the 2009 claim year and 5 % for the 2010 claim year gives rise to an overestimate of losses to EU funds resulting from the irregularities found in the audits, the rates mentioned not taking into account the nature and the seriousness of the infringements or the financial implications for the EU Budget.


title: Case T-173/11: Action brought on 22 March 2011 — Hesse v OHIM — Porsche (Carrera)

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/35

         Action brought on 22 March 2011 — Hesse v OHIM — Porsche (Carrera)
   (Case T-173/11)
   2011/C 145/59
   Language in which the application was lodged: German

      Parties

      Applicant: Kurt Hesse (Nuremberg, Germany) (represented by: M. Krogmann, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Dr. Ing. h.c. F. Porsche AG (Stuttgart, Germany)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 January 2011 in Case R 306/2010-4 and reject the opposition against Community trade mark application No 5 723 432 of 16 February 2007;

               —

               In the alternative,

                           (a)

                           annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of the distinctive character or repute of goods covered by the marks cited in opposition by goods or related services covered by the mark applied for, which are designed to be fitted both inside and outside of mechanical motor vehicles as motor vehicle accessories and come from different markets;

                           (b)

                           annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of the distinctive character or repute of goods covered by the marks cited in opposition by goods or related services covered by the mark applied for, which due to their nature (electronic equipment as opposed to mechanical motor vehicles), intended purpose (entertainment, listening to music, traffic news) or use exhibit no relevant points of reference to the goods and may not be regarded as complementary (goods between which there is no connection in the sense that goods covered by the mark applied for are essential or important for the use of the marks cited in opposition) and are used entirely independently of each other;

                           (c)

                           annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of distinctive character or repute in relation to electrical or electronic equipment and apparatus and installations composed of that equipment and apparatus (for example navigation apparatus) in Class 9 or related services, which can be used in the same way in particular to accessorise motor vehicles of any design and origin and come from different markets;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the word mark ‘Carrera’ for goods in Class 9

      Proprietor of the mark or sign cited in the opposition proceedings: Dr. Ing. h.c. F. Porsche AG

      Mark or sign cited in opposition: the national and Community word mark ‘CARRERA’ for goods in Class 12

      Decision of the Opposition Division: the opposition was rejected

      Decision of the Board of Appeal: the appeal was granted and the application was rejected

      Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of Regulation (EC) No 207/2009 (1) as there is no likelihood of confusion between the marks at issue and no unfair advantage is taken of the distinctive character of the marks cited in opposition

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


title: Case T-25/10: Action brought on 27 January 2010 — BASF Specialty Chemicals and BASF Lampertheim v Commission

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/44

         Action brought on 27 January 2010 — BASF Specialty Chemicals and BASF Lampertheim v Commission
   (Case T-25/10)
   2010/C 100/68
   Language of the case: German

      Parties

      Applicants: BASF Specialty Chemicals Holding GmbH (Basel, Switzerland), BASF Lampertheim GmbH (Lampertheim, Germany) (represented by: F. Montag and T. Wilson, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul Article 1(1)(q) and Article 1(2)(q) of Decision C(2009) 8682 final of 11 November 2009 (Case COMP/38.589 — Heat stabilisers) concerning BASF Specialty Chemicals Holding GmbH, Article 1(1)(r) and Article 1(2)(r) of the decision concerning BASF Lampertheim GmbH as well as Article 2(15) and (36) of the decision concerning both applicants;

               —

               in the alternative, reduce appropriately the amount of the fine imposed on the applicants in Article 2(15) and (36) of the decision;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicants have brought an action against Commission Decision C(2009) 8682 of 11 November 2009 in Case COMP/C38.589 — Heat stabilisers. In the contested decision, the Commission imposed fines on the applicants and other undertakings in respect of infringements of Article 81 EC and — since 1 January 1994 — of Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a series of agreements and/or concerted practices in the market for tin stabilisers and in the market for ESBO/esters in the European Economic Area which consisted in the fixing of prices, the sharing of markets through the allocation of supply quotas, the sharing and allocation of customers as well as the exchange of sensitive commercial information, especially concerning customers, production volumes and quantities supplied.
   In support of their action, the applicants have submitted three pleas in law.
   First, the applicants invoke an infringement of Article 25 of Regulation (EC) No 1/2003, (1) since the defendant’s right to impose fines on the applicants had become time-barred. Contrary to the Commission’s view, the applicants take the view that the provisions of Article 25(6) of Regulation No 1/2003 regarding the suspension of the limitation period do not apply to the applicants.
   Second, the applicants claim that the contested decision breaches Article 101(1) TFEU in conjunction with Article 23(2) of Regulation No 1/2003, since for the most part, the infringements may not be imputed to BASF Specialty Chemicals Holding GmbH, so that no fine should have been imposed on the undertaking in this regard. In this respect, the applicants also submit that the Commission thereby infringed Article 23(2) of Regulation No 1/2003 when it set the fine for BASF Lampertheim GmbH, since in determining the 10 % ceiling for the fine for periods during which BASF Specialty Chemicals Holding GmbH was not liable, it should have taken into account the turnover of BASF Lampertheim GmbH only.
   Finally, by way of a third plea in law, the applicants claim that there has been an infringement of Article 23(2) and (3) of Regulation No 1/2003 in conjunction with the Guidelines on the method of setting fines, (2) since the Commission did not sufficiently reduce the fines imposed on the applicants. The applicants submit that the Commission should have taken greater account of the unreasonably long duration of the administrative procedure and the applicants’ cooperation under the leniency notice. (3) Further, the active cooperation of the applicants outside the leniency notice should have been taken into account for the purposes of the reduction of the fine.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)

      (2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2)

      (3)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)


title: Case C-301/03: Action brought on 2 July 2003 by the Italian Republic against the Commission of the European Communities

text:
20.9.2003               EN                          Official Journal of the European Union                                           C 226/7
Action brought on 2 July 2003 by the Italian Republic                      B. Infringement of Article 30 of Regulation (EC) No 1260/1999
  against the Commission of the European Communities
                                                                           According to the applicant, the final date for eligibility of
                          (Case C-301/03)                                  expenditure relating to programming complements is fixed,
                                                                           with no possibility of derogation, by the general regulation.
                          (2003/C 226/10)                                  The specific provisions of that regulation imply normal
                                                                           retroactivity from the moment of contribution from the
                                                                           Funds (the date on which the Commission receives an applica-
An action against the Commission of the European                           tion for assistance) unless there are changes affecting the
Communities was brought before the Court of Justice of the                 facts set out in the decision to grant a contribution from the
European Communities on 2 July 2003 by the Italian Republic,               Funds.
represented by I. M. Braguglia, acting as Agent, and G. Aiello,
avvocato dello Stato.                                                      The Commission, on the other hand, has determined that,
                                                                           where modifications are made to a programming complement,
The applicant claims that the Court should:                                the starting date for the eligibility of expenditure is established
                                                                           by the Surveillance Committee and may not precede the
                                                                           decision of the Committee approving the amendment in
—     annul the act of the Commission reference CDRR-03-                   question. The modified programming complement must
      0013-00-it (document 4), referred to in the notes of the             specify the starting date for the eligibility of new expenditure
      Commission described below as an act ‘communicated                   occasioned by the modification.
      officially to the Member States on the occasion of the
      meeting of the Advisory Committee for the                            If the Commission's view were to be applied, Article 30(2) of
      Development and Conversion of Regions of 23 April                    the regulation would loose all preceptive force because any
      2003’ (note of 2 June 2003, No 107135) and the note                  programming complement that implements the assistance
      of 14 May 2003 no 106387 (document 6), received on                   approved by decision of the Commission would postpone
      15 May 2003, whereby the Directorate for Regional                    the date for the eligibility of expenditure and the starting date
      Operations in France, Greece and Italy within the                    for the eligibility of expenditure fixed by the regulation would
      Directorate-General for Regional Policy of the European              never be used.
      Commission gave notice of its decision on the final date
      for the eligibility of expenditure relating to modifications
      to the programming complements for POR Sardegna                      C. The applicant claims that the acts complained of are unlaw-
      2000-2006; the note of 28 May 2003 No 107051                         ful because they lack any proper legal base and constitute
      (document 7), received on 2 June 2003, whereby the                   an abuse of power involving the perversion of proceedings,
      Directorate for Regional Operations in France, Greece                lack of jurisdiction, and infringement of the regulation by the
      and Italy within the Directorate-General for Regional                Commission.
      Policy of the European Commission gave notice of its
      decision on the final date for the eligibility of expenditure
      relating to modifications to the programming comple-
      ments for POR Sicilia 2000-2006; the note of 2 June
                                                                           (1) Received probably on 30 June 2003.
      2003 No 107135 (document 8), received in 2003 (1),
                                                                           (2) OJ L 161 of 26.6.1999, p. 1.
      whereby the Directorate for Regional Operations in
      France, Greece and Italy within the Directorate-General
      for Regional Policy of the European Commission gave
      notice of its decision on the final date for the eligibility
      of expenditure relating to modifications to the program-
      ming complements for DOCUP Lazio 2000-2006, toge-
      ther with all connected acts and decisions;                          Action brought on 16 July 2003 by the Commission of the
                                                                           European Communities against the United Kingdom of
                                                                                Great Britain and Northern Ireland
—     order the Commission to pay the costs.
                                                                                (Case C-305/03)
Pleas in law and main arguments                                                                     (2003/C 226/11)
A. Infringement of Articles 15 and 34 of Regulation (EC)                   An action against the United Kingdom of Great Britain and
No 1260/1999 (2)                                                           Northern Ireland was brought before the Court of Justice of the
                                                                           European Communities on 16 July 2003 by the Commission of
                                                                           the European Communities, represented by Richard Lyal, acting
By the acts in issue the Commission actively intervened in the             as agent, with an address for service in Luxembourg.
process of modifying programming complements, or in other
words, the actual management of programming. That is not                   The Applicant claims that the Court should:
within its remit, as defined by the regulation cited and the
Commission had no powers and transgressed into a sphere of                 1)   declare that by applying a reduced rate of value added tax
competence not its own.                                                         to the commission paid to auctioneers on the sale by


title: Case F-112/13: Order of the Civil Service Tribunal of 29 April 2015 — Dimitriou v ENISA

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/51

         Order of the Civil Service Tribunal of 29 April 2015 — Dimitriou v ENISA
   (Case F-112/13) (1)

   (2015/C 198/70)
   Language of the case: Greek
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 85, 22.3.2014, p. 26.


title: Case C-160/14: Request for a preliminary ruling from the Varas Cíveis de Lisboa (5 a Vara Cível) (Portugal) lodged on 4 April 2014 — João Filipe Ferreira da Silva e Brito and Others v Portuguese State

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/30

         Request for a preliminary ruling from the Varas Cíveis de Lisboa (5a Vara Cível) (Portugal) lodged on 4 April 2014 — João Filipe Ferreira da Silva e Brito and Others v Portuguese State
   (Case C-160/14)
   2014/C 175/37
   Language of the case: Portuguese

      Referring court

   Varas Cíveis de Lisboa

      Parties to the main proceedings

      Applicants: João Filipe Ferreira da Silva e Brito and Others

      Defendant: Portuguese State

      Questions referred

               1.

               Must Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, (1) in particular Article 1(1) thereof, be interpreted as meaning that the concept of a ‘transfer of a business’ encompasses a situation in which an undertaking active on the charter flights market is wound up by decision of its majority shareholder, itself an undertaking active in the aviation sector and, in the context of the winding up, the parent company:

                           (i)-

                           replaces the company being wound up under aircraft leasing contracts and ongoing charter flight contracts with tour operators;

                           (ii)-

                           carries out activities previously pursued by the company being wound up;

                           (iii)-

                           re-employs some workers until that point employed by the company being wound up and engages them to perform identical tasks;

                           (iv)-

                           receives small equipment from the company being wound up?

               2.

               Must Article 267 (formerly Article 234 [EC]) TFEU be interpreted as meaning that, in the light of the facts set out in the preceding question and the fact that the lower national courts adjudicating on the case adopted contradictory decisions, the Supremo Tribunal de Justiça was under an obligation to refer to the Court of Justice of the European Union for a preliminary ruling the question of the correct interpretation of the concept of a ‘transfer of a business’ within the meaning of Article 1(1) of Directive 2001/23/EC?

               3.

               Do Community law, in particular, the principles laid down by the Court of Justice in Köbler
                   (2) on State liability for loss or damage caused to individuals as a result of an infringement of Community law by a national court adjudicating at last instance preclude the application of a national provision which makes a claim for damages against the State conditional upon the adverse decision having first been set aside?

      (1)  OJ 2001 L 82, p. 16.

      (2)  C-224/01, EU:C:2003:513


title: Case C-551/13: Judgment of the Court (Sixth Chamber) of 18 December 2014 (request for a preliminary ruling from the Commissione tributaria provinciale di Cagliari — Italy) — Società Edilizia Turistica Alberghiera Residenziale (SETAR) v Comune di Quartu S. Elena (Reference for a preliminary ruling — Directive 2008/98/EC — Article 15 — Waste management — Possibility for the waste producer to carry out the waste treatment independently — National transposition law adopted, but not yet in force — Expiry of the transposition period — Direct effect)

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/12

         Judgment of the Court (Sixth Chamber) of 18 December 2014 (request for a preliminary ruling from the Commissione tributaria provinciale di Cagliari — Italy) — Società Edilizia Turistica Alberghiera Residenziale (SETAR) v Comune di Quartu S. Elena
   (Case C-551/13) (1)

   ((Reference for a preliminary ruling - Directive 2008/98/EC - Article 15 - Waste management - Possibility for the waste producer to carry out the waste treatment independently - National transposition law adopted, but not yet in force - Expiry of the transposition period - Direct effect))
   (2015/C 065/17)
   Language of the case: Italian

      Referring court

   Commissione Tributaria Provinciale di Cagliari

      Parties to the main proceedings

      Applicant: Società Edilizia Turistica Alberghiera Residenziale (SETAR)

      Defendant: Comune di Quartu S. Elena

      Operative part of the judgment

   EU law and Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which transposes into national law a provision of that directive, but the entry into force of which is deferred pending the adoption of a subsequent internal measure, if that entry into force takes place after the end of the transposition period prescribed by the directive.
   Article 15(1) of Directive 2008/98, read in conjunction with Articles 4 and 13 of that directive, must be interpreted as not precluding national legislation under which no provision is made permitting a waste producer or waste holder to dispose of that waste independently and accordingly to be exempted from liability for payment of a municipal tax for the disposal of waste, provided that that legislation meets the requirements entailed by the principle of proportionality.

      (1)  OJ C 377, 21.12.2013.


title: Case T-109/17: Action brought on 21 February 2017 — FCA US v EUIPO — Busbridge (VIPER)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/42

         Action brought on 21 February 2017 — FCA US v EUIPO — Busbridge (VIPER)
   (Case T-109/17)
   (2017/C 121/62)
   Language in which the application was lodged: English

      Parties

      Applicant: FCA US LLC (City of Auburn Hills, Michigan, United States) (represented by: C. Morcom, QC)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Robert Dennis Busbridge (Hookwood, United Kingdom)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘VIPER’ — EU trade mark No 3 871 101

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the First Board of Appeal of EUIPO of 1 December 2016 in Case R 554/2016-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decisions of the Cancellation Division and of the First Board of Appeal and that the application by Mr. Busbridge be remitted to the Cancellation Division for the appropriate action;

               —

               the Applicant also seeks an order for costs.

      Pleas in law

               —

               The Board of appeal was wrong in concluding that Mr Busbridge had proved use in relation to the goods covered by the UK registration (namely ‘Sports cars’);

               —

               The evidence submitted by Mr Busbridge was wholly inadequate to prove use that was ‘genuine’ as required by Art. 57 (2) and (3) of Regulation no 207/2009.


title: Case C-376/05: Reference for a preliminary ruling from the Bundesgerichtshof, Germany, by order of that court of  26 July 2005  in A Brünsteiner GmbH v Bayerische Motorenwerke AG

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/8

         Reference for a preliminary ruling from the Bundesgerichtshof, Germany, by order of that court of 26 July 2005 in A Brünsteiner GmbH v Bayerische Motorenwerke AG
   (Case C-376/05)
   (2006/C 10/18)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof, Germany, of 26 July 2005, received at the Court Registry on 12 October 2005, for a preliminary ruling in the proceedings between A Brünsteiner GmbH and Bayerische Motorenwerke AG on the following questions:

               1.

               Is the first indent of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 (1) on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) to be interpreted so that the need to re-organise the whole or a substantial part of the network and the resulting right of the supplier to terminate agreements with dealers in its distribution network, on one year's notice, can also arise because the entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 (2) on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (‘Regulation (EC) No 1400/2002’) required far-reaching changes to the distribution systems previously used by suppliers and their dealers under Regulation (EC) No 1475/95 which were exempted under that regulation?

               2.

               If the first question is to be answered in the negative:

                           Is Article 4 of Regulation (EC) No 1400/2002 to be interpreted so that, exceptionally, the existence of agreements which are restrictive of competition in a motor vehicle dealership agreement which constitute hardcore restrictions (‘grey clauses’) under that regulation did not, on expiry of the one-year transitional period on 30 September 2003, laid down in Article 10 of the Regulation, preclude the application of the exemption from the prohibition under Article 81(1) EC for all agreements restrictive of competition in the dealership agreement, if that agreement was concluded when Regulation (EC) No 1475/95 was still applicable, adapted to the requirements of that regulation and exempted by that regulation?

                           Is this still the case where the result under Community law is the invalidity of all contractual provisions restrictive of competition, whereas under national law, the result is that the entire dealership agreement is invalid?

      (1)  OJ L 145, 29.6.1995, p. 25

      (2)  OJ L 203, 1.8.2002, p. 30


title: Case T-115/15: Action brought on 5 March 2015 — Deza v ECHA

text:
               1.6.2015

               EN

               Official Journal of the European Union

               C 178/14

         Action brought on 5 March 2015 — Deza v ECHA
   (Case T-115/15)
   (2015/C 178/16)
   Language of the case: Czech

      Parties

      Applicant: Deza, a.s. (Valašské Meziříčí, Czech Republic) (represented by: P. Dejl, lawyer)

      Defendant: European Chemicals Agency

      Form of order sought

               —

               annul Decision ED/108/2014 of 12 December 2014 of the Executive Director of the European Chemicals Agency updating and supplementing the existing entry for the substance DEHP in the candidate list for eventual inclusion in Annex XIV to Regulation (EC) No 1907/2006 (1);

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the contested decision is ultra vires
               The applicant claims that the contested decision is ultra vires because (i) the defendant was not entitled under Regulation No 1907/2006 to update, by that decision, the list for eventual inclusion in Annex XIV within the meaning of Article 59(1) of that regulation, (ii) the adoption of the contested decision was preceded by a procedure of the defendant that was contrary to Article 59 of Regulation No 1907/2006, and (iii) the contested decision and the procedure of the defendant leading up to its adoption circumvent the procedure laid down for that purpose by the Council of the European Union and the European Parliament.

               2.

               Second plea in law, alleging that the contested decision is contrary to the principle of legal certainty
               The applicant claims that the contested decision is contrary to the principle of legal certainty because (i) the decision identifies bis(2-ethylhexyl) phthalate (DEHP) as a substance disrupting endocrinal activity where EU law does not lay down a definition of such a substance or criteria for its identification and where that definition or those criteria are drawn up by the European Commission on the basis of regulations and decisions of the Council and the Parliament, and (ii) that decision was adopted at a time when the procedure was still ongoing, albeit at an advanced stage, for authorisation of the substance DEHP identified as a substance toxic for reproduction under Article 57(c) of Regulation No 1907/2006.

               3.

               Third plea in law, alleging that the contested decision is not founded on convincing and objective scientific findings
               The applicant claims that the contested decision is unlawful because it is not founded on convincing and objective scientific findings showing that DEHP satisfies all the criteria laid down in Article 57(f) of Regulation No 1907/2006.

               4.

               Fourth plea in law, alleging breach of the applicant’s rights and the principles enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union
               The applicant submits that the contested decision and the procedure of the defendant leading up to its adoption infringe its rights and the principles enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union, in particular the principle of legal certainty, the right to a fair trial and the right to peaceful enjoyment of property.

      (1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing an European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1).


title: Case C-18/00: Reference for a preliminary ruling by the Tribunale di Asti — Ufficio del Giudice per le Indagini Preliminari, by order of 17 December 1999 in the criminal proceedings pending before it against Maurizio Perino

text:
C 79/18                 EN                  Official Journal of the European Communities                                     18.3.2000
According to the Commission, it cannot be stated that the                   — should a deduction be allowed by way of general
mere presence of vegetable fats changes the nature of the                       expenses?
product to the extent that the name ‘chocolate’ could create
confusion as to the essential nature of the product itself.
                                                                       (1) Sixth Council Directive (77/388/EEC) of 17 May 1977 on the
                                                                           harmonization of the laws of the Member States relating to
The requirement that the name of the product be changed (to                turnover taxes — Common system of value added tax: uniform
its detriment) must be precluded inasmuch as it seriously                  basis of assessment (OJ L 145, p. 1).
prejudices recognition of the product as part of a category to
which it rightfully belongs. As such, it is a disproportionate
measure with regard to the objective pursued, namely con-
sumer information.
(1) OJ 1973 L 228, p. 23.                                              Reference for a preliminary ruling by the Tribunale di
                                                                       Asti — Ufficio del Giudice per le Indagini Preliminari, by
                                                                       order of 17 December 1999 in the criminal proceedings
                                                                                pending before it against Maurizio Perino
                                                                                (Case C-18/00)
Reference for a preliminary ruling by the Tribunal Admin-                                        (2000/C 79/34)
istratif de Lille (4ème Chambre) by judgment of that court
of 6 January 2000 in the case of Cibo Participations S.A.              Reference has been made to the Court of Justice of the
against Directeur Régional des Impôts du Nord-Pas-de-Ca-               European Communities by order of the Tribunale di Asti
                                 lais                                  (District Court, Asti) of 17 December 1999, received at the
                                                                       Court Registry on 20 January 2000, for a preliminary ruling
                           (Case C-16/00)                              in the criminal proceedings pending against Maurizio Perino
                                                                       on the following question:
                           (2000/C 79/33)
                                                                       Does Council Directive 91/156/EEC of 18 March 1991 (1)
                                                                       permit the storage of waste for submission, not only to the
Reference has been made to the Court of Justice of the                 operations listed in points R1 to R12 of Annex IIB, but also to
European Communities by judgment of the Tribunal Adminis-              another, separate phase of storage, or does the directive require
tratif de Lille (4ème Chambre) (Administrative Court, Lille)           persons storing waste to deliver it solely to a person who
(Fourth Chamber) of 6 January 2000, received at the Court              carries out operations to recover the waste?
Registry on 19 January 2000, for a preliminary ruling in the
case of Cibo Participations S.A. against Directeur Régional des
Impôts du Nord-Pas-de-Calais on the following questions:               (1) Council Directive 91/156/EEC amending Directive 75/442/EEC
                                                                           on waste (OJ 1991 L 78, p. 32).
1. What are the criteria for establishing ‘involvement’? Can it
     be inferred from the provision of paid services, or the
     running of a group of companies by its holding company,
     or de facto management which excludes the independence
     of the subsidiary, or some other factor?
2. Where there is ‘involvement’, does the receipt of dividends         Reference for a preliminary ruling by the Court of
     remain outside the scope of value added tax for any reason        Session, Scotland, by request of that Court of 11 January
     other than economic activity, in that such receipts are not       2000, in the case of Booker Aquaculture Limited, trading
     the consideration for the supply of goods or services,            as Marine Harvest McConnell, against the Scottish Minis-
                                                                                ters
     — or, taking account of the fact that fees are incurred in
         connection with the acquisition of shares, the specific                                 (Case C-20/00)
         purpose of which is to enable direct participation in
         economic activity, do dividend receipts fall within the                                 (2000/C 79/35)
         scope of value added tax and, if so, are such receipts
         exempt under Article 13B(1)(d) of the Sixth Council           Reference has been made to the Court of Justice of the
         Directive (1) or taxable?                                     European Communities by a request of the Court of Session,
                                                                       Scotland, of 11 January 2000, which was received at the Court
3. If the receipt of dividends remains outside the scope of            Registry on 24 January 2000, for a preliminary ruling in the
     value added tax, what are the implications for deduction:         case of Booker Aquaculture Limited, trading as Marine Harvest
                                                                       McConnell, against the Scottish Ministers, on the following
     — does no right remain to deduct tax on fees incurred in          questions:
         connection with the acquisition of shares, on the
         ground that those fees do not relate to a taxable             1. Where, in implement of an obligation under Directive
         transaction, or                                                    93/53/EEC (1) to provide control measures for an outbreak


title: Case T-360/15: Judgment of the General Court of 8 September 2016 — Dr Vita v EUIPO (69) (EU trade mark — Application for EU figurative mark 69 — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               17.10.2016

               EN

               Official Journal of the European Union

               C 383/14

         Judgment of the General Court of 8 September 2016 — Dr Vita v EUIPO (69)
   (Case T-360/15) (1)

   ((EU trade mark - Application for EU figurative mark 69 - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2016/C 383/19)
   Language of the case: Polish

      Parties

      Applicant: Dr Vita sp. z o.o. (Olsztyn, Poland) (represented by: D. Rzążewska, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: D. Walicka, acting as Agent)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 1 April 2015 (Case R 2513/2014-5), relating to an application for registration of the figurative sign 69 as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Dr Vita sp. z o.o. to pay the costs.

      (1)  OJ C 279, 24.8.2015.


title: Case T-627/13: Judgment of the General Court of 2 October 2015 — The Tea Board v OHIM — Delta Lingerie (Darjeeling) (Community trade mark — Opposition proceedings — Figurative mark Darjeeling — Earlier Community collective word and figurative marks DARJEELING — Relative grounds for refusal — Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/40

         Judgment of the General Court of 2 October 2015 — The Tea Board v OHIM — Delta Lingerie (Darjeeling)
   (Case T-627/13) (1)

   ((Community trade mark - Opposition proceedings - Figurative mark Darjeeling - Earlier Community collective word and figurative marks DARJEELING - Relative grounds for refusal - Article 8(1)(b) and (5) of Regulation (EC) No 207/2009))
   (2015/C 389/42)
   Language of the case: English

      Parties

      Applicant: The Tea Board (Calcutta, India) (represented by: A. Nordemann and M. Maier, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Delta Lingerie (Cachan, France) (represented by: G. Marchais and P. Martini-Berthon, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 11 September 2013 (Case R 1387/2012-2) concerning opposition proceedings between The Tea Board and Delta Lingerie.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 September 2013 (Case R 1387/2012-2) as regards the goods in Class 25 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and the ‘[r]etailing of women’s underwear and lingerie, perfumes, toilet water and cosmetic lotions, household and bath linen’ services in Class 35 of that agreement covered by the mark applied for;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 45, 15.2.2014.


title: Case C-419/14: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 8 September 2014  — WebMindLicences Kft.Nemzeti Adó és Vámhivatal Kiemelt Adó és Vám Főigazgatóság v Nemzeti Adó és Vámhivatal Kiemelt Adó és Vám Főigazgatóság

text:
               8.12.2014

               EN

               Official Journal of the European Union

               C 439/17

         Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 8 September 2014 — WebMindLicences Kft.Nemzeti Adó és Vámhivatal Kiemelt Adó és Vám Főigazgatóság v Nemzeti Adó és Vámhivatal Kiemelt Adó és Vám Főigazgatóság
   (Case C-419/14)
   (2014/C 439/25)
   Language of the case: Hungarian

      Referring court

   Fővárosi Közigazgatási és Munkaügyi Bíróság

      Parties to the main proceedings

      Applicant: WebMindLicences Kft.

      Defendant: Nemzeti Adó és Vámhivatal Kiemelt Adó és Vám Főigazgatóság

      Questions referred

               1.

               Under Articles 2(1)(c), 24(1) and 43 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax (‘the VAT Directive’), in order to identify the person supplying the service for the purposes of VAT, when examining whether the transaction is fictitious, has no real financial or commercial content and is intended only to secure a tax advantage, is it relevant for the purposes of interpretation that, in the circumstances of the main proceedings, the managing director and 100 % owner of the commercial company which grants the licence is the natural person who created the know-how transferred by means of the licensing agreement?

               2.

               If the answer to the first question is in the affirmative, when applying Articles 2(1)(c), 24(1) and 43 of the VAT Directive and assessing whether there is an abusive practice, is it relevant that this natural person exercises or may exercise influence informally over the running of the commercial company which acquired the licence and over the decisions of that company? For the purposes of that interpretation, might it be relevant that the creator of the know-how participates or may participate directly or indirectly, by advising professionally or offering advice on the development and exploitation of the know-how, in taking business decisions relating to the supply of the service based on that know-how?

               3.

               In the circumstances of the main proceedings and in the light of the considerations set out in the second question, in order to identify the person supplying the service for the purposes of VAT is it relevant, in addition to the analysis of the underlying contractual transaction, that the creator of the know-how, as a natural person, exercises influence, or decisive influence, or issues directions regarding the way the service based on that know-how is supplied?

               4.

               If the answer to the third question is in the affirmative, when determining the extent of that influence and those directions, what circumstances can be taken into account, or, more specifically, on the basis of what criteria may it be found that a decisive influence is exercised over the supply of the service and that the real financial content of the underlying transaction was for the benefit of the undertaking which grants the licence?

               5.

               In the circumstances of the main proceedings, in considering whether a tax advantage has been gained, is it relevant when analysing the relations between the traders and the persons involved in the transaction that the taxable persons who took part in the contested contractual transaction, which is intended to avoid tax, are legal persons, when the tax authority of a Member State attributes the adoption of strategic and operational decisions on exploitation to a natural person? If so, must account be taken of the Member State in which that natural person took those decisions? In circumstances such as those obtaining in the present case, if it can be found that the contractual position of the parties is not decisive, is it relevant for the purpose of interpretation that subcontractors carry out the management of the technical instruments, human resources and financial transactions necessary for the supply of the internet-based service at issue here?

               6.

               If it can be established that the terms of the licensing agreement do not reflect real financial content does the reclassification of the contract terms and the restoration of the situation which would have obtained if the transaction involving the abusive practice had not taken place imply that the tax authority of the Member State may make a different decision as to the Member State of supply and, therefore, the place where the tax is payable, even though the company which acquired the licence paid the tax payable in the Member State where it is established and in accordance with the legal requirements laid down in that Member State?

               7.

               Must Articles 49 TFEU and 56 TFEU be interpreted as meaning that a contractual arrangement such as that at issue in the main proceedings, under which a company which is a taxable person in a Member State, transfers by means of a licensing agreement the know-how for the supply of services providing adult content through interactive communication technology to an undertaking which is a taxable person in another Member State, in circumstances where the burden of VAT of the Member State of residence of the company which acquired the licence is more advantageous as regards the service transferred, is contrary to those articles and may represent a abuse of the freedom of establishment and the freedom to supply services.

               8.

               In circumstances such as those obtaining in the present case, what significance must be attached to the tax advantage which may be presumed to arise and to the commercial considerations taken into account by the company which grants the licence? In that connection and more specifically, is it relevant for the purposes of interpretation that the 100 % owner and manager of the commercial company which grants the licence is the natural person who originally created the know-how?

               9.

               In analysing abusive conduct may circumstances such as those of the main proceedings, for instance the technical and infrastructure data relating to the setting up and performance of the service which is the subject of the transaction at issue and the preparation and human resources available to the company which grants the licence to supply the service in question, be taken into account and, if so, what significance do they have?

               10.

               In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Articles 4(3) and 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the Union to collect the total amount of VAT effectively and punctually and prevent the loss to the public coffers entailed by tax evasion and avoidance across the borders of the Member States, in the case of a transaction for the supply of services and in order to identify the person supplying the service, the tax authority of the Member State, at the evidence-gathering stage of the administrative tax procedure and in order to clarify the facts, is entitled to admit data, information and evidence, and, therefore, records of intercepted communication, obtained without the knowledge of the taxable person by the investigating body of the tax authority in the context of a criminal procedure and to use them as a basis for its assessment of the tax implications, and that, for its part, the administrative court hearing the action brought against the administrative decision of the tax authority of the Member State is entitled to carry out an assessment of those matters as evidence, while examining the legality of that evidence?

               11.

               In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Articles 4(3) and 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the Union to collect the total amount of VAT effectively and punctually and compliance with the obligation of the Member States to guarantee observance of the obligations imposed on the taxable person, the discretion with regard to the means available to the tax authority of the Member State includes the option for that Member State to use evidence obtained initially for the purpose of criminal proceedings to prevent tax avoidance, including where national law itself does not allow information to be obtained without the knowledge of the person concerned in the context of an administrative procedure to prevent tax avoidance, or subjects it in the context of criminal proceedings to guarantees which are not provided in the administrative tax proceedings, recognizing at the same time the right of the administrative authority to act in accordance with the principle of the freedom of evidence?

               12.

               Does Article 8(2) of the ECHR, in conjunction with Article 52(2) of the Charter, prevent recognition that the tax authority of the Member State has the authority described in questions 10 and 11, or in the circumstances of the present case, can it be considered justified, in order to combat tax avoidance, to use in the context of an administrative tax procedure, conclusions drawn from information obtained without the knowledge of the person concerned, with a view to the effective collection of tax and for the sake of the financial well-being of the country?

               13.

               If the answer to questions 10 and 12 is that the tax authority of the Member State may use such evidence in the administrative procedure, is the tax authority of the Member State required, in order to guarantee the effectiveness of the right to good administration and the rights of the defence pursuant to Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 51(1) of the Charter, to hear the taxable person in the course of the administrative procedure, to guarantee him access to the conclusions suggested by the information obtained without his knowledge and to respect the purpose for which the data appearing in the evidence were obtained, or, in that context, does the fact that the information collected without the knowledge of the person concerned is intended solely for an investigation of a criminal nature prevent from the outset the use of such evidence?

               14.

               In the event that evidence is obtained in breach of Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 47 of the Charter, does national legislation under which the challenging in judicial proceedings of the procedural legality of decisions given in tax matters can only succeed and result in the setting aside of the decision if, according to the circumstances of the case, there is the possibility in practice that the contested decision would have been different if the procedural error had not occurred and if, moreover, that defect affected the substantive legal position of the applicant, or do the procedural errors made in that way have to be taken into account in a wider context, regardless of the influence the procedural error which infringes the Charter has on the outcome of the proceedings?

               15.

               Does the effectiveness of Article 47 of the Charter require that, in a procedural situation such as the present, the administrative court hearing the action against the administrative decision of the tax authority of the Member State may review the legality of the obtaining of evidence collected for the purpose of criminal proceedings without the knowledge of the person concerned in the context of criminal proceedings, in particular when the taxable person against whom the criminal proceedings have been brought in parallel has no knowledge of that documentation and has been unable to contest its legality before a court?

               16.

               Also having regard to question 6, must Council Regulation (EU) No 904/2010 (2) of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax, in the light, in particular, of its seventh recital, according to which, for the purposes of collecting the tax owed, Member States should cooperate to help ensure that VAT is correctly assessed and, in order to do so, they must not only monitor the correct application of tax owed in their own territory, but should also provide assistance to other Member States for ensuring the correct application of tax relating to activity carried out on their own territory but owed in another Member State, be interpreted as meaning that, in a situation where the facts are as in the present case, the tax authority of the Member State which discovers the tax debt must make a request to the tax authority of the Member State in which the taxable person was subject to a tax inspection and complied with its obligation to pay tax?

               17.

               If the answer to question 16 is in the affirmative and the decisions adopted by the tax authority of the Member State are challenged before a court and are found to be unlawful in procedural terms on that ground, in other words, on the basis of failure to obtain information and the absence of a request, what action should the court hearing the action against the administrative decisions adopted by the tax authority of the Member State take, having regard also to the considerations set out in question 14?

      (1)  OJ L 347, p. 1.

      (2)  OJ L 268, p. 1.


title: Case C-51/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Article 43 EC — Freedom of establishment — Civil-law notaries — Nationality condition — Article 45 EC — Connection with the exercise of official authority — Directive 89/48/EEC)

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/3

         Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v Grand Duchy of Luxembourg
   (Case C-51/08) (1)

   (Failure of a Member State to fulfil obligations - Article 43 EC - Freedom of establishment - Civil-law notaries - Nationality condition - Article 45 EC - Connection with the exercise of official authority - Directive 89/48/EEC)
   2011/C 204/04
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, Agents)

      Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson and S. Ossowski, Agents)

      Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent, and J.-J. Lorang, avocat)

      Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, Agent), French Republic (represented by: G. de Bergues and M. Messmer, Agents), Republic of Latvia (represented by: L. Ostrovska, K. Drēviņa and J. Barbale, Agents), Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė, Agents), Republic of Hungary (represented by: J. Fazekas, R. Somssich, K. Veres and M. Fehér, Agents), Republic of Poland (represented by: M. Dowgielewicz, C. Herma and D. Lutostańska, Agents), Slovak Republic (represented by: J. Čorba, Agent)

      Re:

   Failure of a Member State to fulfil its obligations — Infringement of Articles 43 EC and 45 EC — National legislation making access to the profession of notary and its practice subject to a nationality requirement — Restriction on freedom of establishment — Scope of the exception relating to activities connected with the exercise of official authority — Requirement of direct and specific connection with such exercise — Failure to transpose, in respect of the profession of notary, Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by imposing a nationality condition for access to the profession of notary, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 43 EC;

               2.

               Dismisses the action as the remainder;

               3.

               Orders the European Commission, the Grand Duchy of Luxembourg, the Czech Republic, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Poland, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

      (1)  OJ C 128, 24.5.2008.


title: Case C-473/14: Request for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 20 October 2014  — Dimos Kropias Attikis v Ipourgos Perivallontos, Energias kai Klimatikis Allagis

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/14

         Request for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 20 October 2014 — Dimos Kropias Attikis v Ipourgos Perivallontos, Energias kai Klimatikis Allagis
   (Case C-473/14)
   (2015/C 007/19)
   Language of the case: Greek

      Referring court

   Simvoulio tis Epikratias

      Parties to the main proceedings

      Applicant: Dimos Kropias Attikis

      Defendant: Ipourgos Perivallontos, Energias kai Klimatikis Allagis

      Questions referred

               1.

               Is a master plan for a metropolitan urban-planning area which sets out general objectives, guidelines and programmes for organising the spatial and urban planning of the broader metropolitan area, in particular establishing as individual general objectives the protection of the mountainous areas surrounding the metropolitan area and the containment of urban sprawl, a plan which allows the competent administrative authority not to subject a plan — which is subsequently adopted by means of a decree pursuant to the law containing the aforementioned initial master plan and which defines protection zones in one of the aforementioned mountainous areas and the related permitted land uses and activities, in order to give more specific expression to and implement the objectives for the protection of mountainous areas and the containment of urban sprawl — to the strategic environmental assessment procedure laid down in Directive 2001/42/EC (1) (OJ 2001 L 197), within the meaning of Article 3 thereof, as interpreted by the judgment of the Court of Justice in Case C-567/10 Inter-Environnement Bruxelles and Others [2012], paragraph 42?

               2.

               If the answer to the previous question is in the affirmative: where, due to the time of the adoption of the plan to which more specific expression has been given within the framework of a hierarchy of spatial planning acts, no strategic environmental assessment under the aforementioned Directive 2001/42/EC was carried out in respect of that plan, must that assessment be carried out in respect of the measure, adopted when the directive is in force, which gives more specific expression to that plan?

               3.

               If the answer to the second question is in the negative: where a decree contains rules relating to protection measures and to permitted activities and land uses in an area included in the national part of the NATURA network as a SCI [Site of Community Importance], SAC [Special Area of Conservation] and SPA [Special Protection Area], and those rules admittedly establish a regime of absolute nature protection, permitting only fire protection installations, forest management and hiking paths, but it is not apparent from the preparatory acts for the introduction of those rules that the conservation objectives of those areas — namely the specific environmental characteristics on account of which they were selected for inclusion in the NATURA network — were taken into account, while moreover uses that are no longer permitted are also still maintained within the area in question on the basis of those rules solely due to the fact that they were compatible with the previous protection regime, is that decree a management plan, within the meaning of Article 6(3) of Directive 92/43/EEC (2) (OJ 1992 L 206), prior to the adoption of which there was no obligation to carry out a strategic environmental assessment, in accordance with that article interpreted in conjunction with Article 3(2)(b) of the aforementioned Directive 2001/42/EC?

               4.

               Finally, if the answer to the third question is in the affirmative: when a spatial planning measure has been adopted that relates to a wider single geographical area, and requires, in principle, under Article 3(2)(b) of Directive 2001/42/EC in conjunction with Article 6(3) of Directive 92/43/EEC, the carrying out of a strategic environmental assessment, which did not take place, and if it is found that the carrying out of a prior environmental assessment was required only for certain sections of this area — on account of the rules finally imposed in relation to the land uses and activities permitted in those sections, which do not constitute mere management plans — whereas for the largest part this assessment was not required because the rules adopted, in so far as they relate to these sections, in practice constitute a management plan, for which, in accordance with Article 3(2)(b) of Directive 2001/42/EC in conjunction with Article 6(3) of Directive 92/43/EEC, there is no obligation to carry out such an assessment, is it possible, for the purposes of Directive 2001/42/EC, to find that this body of rules is partially invalid and, therefore, to annul it only in respect of the sections of the area which, because of the rules finally imposed, require the carrying out of a prior environmental assessment, with the further consequence, after the partial annulment of the measure in question, that a strategic environmental assessment takes place only in relation to this part and not the overall area?

      (1)  Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment.

      (2)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.


title: Case C-225/14: Order of the President of the Court of 23 January 2015 (request for a preliminary ruling from the Tribunal d’instance de Dieppe — France) — Facet SA v Jean Henri

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/32

         Order of the President of the Court of 23 January 2015 (request for a preliminary ruling from the Tribunal d’instance de Dieppe — France) — Facet SA v Jean Henri
   (Case C-225/14) (1)

   (2015/C 146/41)
   Language of the case: French
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 223, 14.7.2014.


title: Case T-380/08: Judgment of the General Court of 13 September 2013 — Netherlands v Commission (Access to documents — Regulation (EC) No 1049/2001 — Request seeking to obtain access to certain confidential passages of the final decision of the Commission relating to a cartel — Refusal of access — Obligation to state reasons — Obligation to carry out a specific, individual examination — Exception concerning the protection of privacy and the integrity of the individual — Exception concerning the protection of the commercial interests of a third party — Exception relating to the protection of the purpose of investigations — Overriding public interest — Sincere cooperation)

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/16

         Judgment of the General Court of 13 September 2013 — Netherlands v Commission
   (Case T-380/08) (1)

   (Access to documents - Regulation (EC) No 1049/2001 - Request seeking to obtain access to certain confidential passages of the final decision of the Commission relating to a cartel - Refusal of access - Obligation to state reasons - Obligation to carry out a specific, individual examination - Exception concerning the protection of privacy and the integrity of the individual - Exception concerning the protection of the commercial interests of a third party - Exception relating to the protection of the purpose of investigations - Overriding public interest - Sincere cooperation)
   2013/C 313/28
   Language of the case: Dutch

      Parties

      Applicant: Kingdom of the Netherlands (represented by: C. Wissels, M. de Mol and M. de Ree, Agents)

      Defendant: European Commission (represented by: A. Bouquet and P. Costa de Oliveira, Agents)

      Re:

   Application for annulment of the Commission Decision of 30 June 2008 refusing access to certain confidential passages of Decision C(2006) 4090 final (Case COMP/F/38.456 — Bitumen (Netherlands)),

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders the Kingdom of the Netherlands to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 285, 8.11.2008.


title: Case T-117/10: Action brought on 5 March 2010 — Italy v Commission

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/32

         Action brought on 5 March 2010 — Italy v Commission
   (Case T-117/10)
   2010/C 148/57
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato, and G. Palmieri, avvocato dello Stato)

      Defendant: European Commission

      Form of order sought

               —

               Annul Decision No C(2009) 10350 of the European Commission of 22 December 2009 concerning the cancellation of part of the contribution from the European Regional Development Fund allocated to Italy for the operational programme POR Puglia Obiettivo 1 2000-06.

               —

               Order the European Commission to pay the costs.

      Pleas in law and main arguments

   The Italian Republic challenges before the General Court of the European Union Decision No C(2009) 10350 of the European Commission of 22 December 2009, notified on 23 December 2009, concerning the cancellation of part of the contribution from the European Regional Development Fund allocated to Italy for the operational programme POR Puglia Obiettivo 1 2000-06.
   In support of its challenge, the Italian Republic relies on the following grounds:

               First ground: infringement of Article 39(2)(c) and (3) of Regulation No 1260/99 (1) and Article 4 of Regulation No 438/2001. (2) It is submitted in this connection that the Community auditors concluded that there were systemic deficiencies in first-level controls on the basis of certain irregularities which were not identified by those controls in the award and implementation of public works contracts. While the contested decision did not in fact refute the analytical counter-arguments put forward by the Region, which ruled out the possibility of systemic deficiencies, it nevertheless made a correction of 10 % under Article 39 of Regulation No 1260/99, as if the first-level regional control systems did not comply with the requirements of Article 4 of Regulation No 438/2001. The Commission thus also infringed the principle of partnership.

               Second ground: infringement of Article 39(2)(c) and (3) of Regulation No 1260/99 and Article 10 of Regulation No 438/2001. The applicant points out that the second ground is similar to the first ground but concerns the second-level checks provided for in Article 10 of Regulation No 438/2001, which the Community audit also found to be systematically deficient due to the irregularities that had not been pointed out which were identified in certain samples, in spite of the fact that all those irregularities were disputed in analyses carried out by the Region supported by factual and legal arguments which were not rebutted in the contested decision.

               Third ground: failure to state reasons and further infringement of Article 39(2) and (3) of Regulation No 1260/99. The contested decision is vitiated as a result of failure to state reasons because the conclusion that there were systemic deficiencies justifying a 10 % correction is based on the situation as it appeared to the auditors in 2007 and 2008, while it totally disregards the quantitative and qualitative progress documented by the Region up to the end of 2009 and the counter arguments to the specific points made by the auditors referred to in connection with the previous grounds. No reasons were therefore given for the Commission’s conclusion that there was a serious threat to the Fund.

               Fourth ground: infringement of Article 12 of Regulation No 1260/99, the first paragraph of Article 4 of Regulation No 438/2001 and Article 258 TFEU and lack of competence on the part of the defendant. According to the applicant, the Commission attached major importance to the alleged infringements — which are of no great importance — of the rules governing the award of public contracts. However, according to a correct interpretation of Article 12 of Regulation 1260/99 and Article 4 of Regulation No 438/2001, systematic infringement of those rules cannot result directly in a correction being made but must instead give rise to the instigation of an infringement procedure, with a corresponding suspension of payments, pursuant to Article 32(3)(f) of Regulation No 1260/99, in respect of the measures to which the infringement relates.

      (1)  Council Regulation (EC) No 1260/99 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).

      (2)  Commission Regulation (EC) No 438/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the management and control systems for assistance granted under the Structural Funds (OJ 2001 L 63, p. 21).


title: Case T-614/15: Action brought on 29 October 2015 — Azur Space Solar Power v OHIM (Representation of a black line)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/64

         Action brought on 29 October 2015 — Azur Space Solar Power v OHIM (Representation of a black line)
   (Case T-614/15)
   (2016/C 038/86)
   Language of the case: English

      Parties

      Applicant: Azur Space Solar Power GmbH (Heilbronn, Germany) (represented by: J. Nicodemus, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: International registration designating the European Union in respect of the figurative mark (Representation of a black line) — Application for registration No 1 201 652

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 2 September 2015 in Case R 3233/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009.


title: Case T-376/16: Order of the General Court of 2 March 2017 — Oberösterreichische Landesbank v CRU

text:
               26.6.2017

               EN

               Official Journal of the European Union

               C 202/28

         Order of the General Court of 2 March 2017 — Oberösterreichische Landesbank v CRU
   (Case T-376/16) (1)

   (2017/C 202/44)
   Language of the case: German
   The President of the Eighth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 343, 19.9.2016.


title: Case T-41/15: Order of the General Court of 2 December 2015 — Novartis v OHIM– Mabxience (HERTIXAN) (Community trade mark — Opposition proceedings — Withdrawal of application for registration — No need to adjudicate)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/58

         Order of the General Court of 2 December 2015 — Novartis v OHIM– Mabxience (HERTIXAN)
   (Case T-41/15) (1)

   ((Community trade mark - Opposition proceedings - Withdrawal of application for registration - No need to adjudicate))
   (2016/C 038/77)
   Language of the case: Spanish

      Parties

      Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Douglas, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Mabxience SA (Montevideo, Uruguay)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 31 October 2014 (Case R 2550/2013-1) relating to opposition proceedings between Novartis AG and Mabxience SA.

      Operative part of the order

               1.

               There is no need to adjudicate on the action.

               2.

               Novartis AG is ordered to pay the costs.

      (1)  OJ C 107, 30.3.2015.


title: Order of the Court of First Instance of 9 June 2005 in Case T-188/02: Freiberger Lebensmittel GmbH & Co. Produktions- und Vertriebs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate)

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/16

      ORDER OF THE COURT OF FIRST INSTANCE

   of 9 June 2005
   in Case T-188/02: Freiberger Lebensmittel GmbH & Co. Produktions- und Vertriebs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Opposition - Withdrawal of opposition - No need to adjudicate)
   (2005/C 229/34)
   Language of the case: German
   In Case T-188/02: Freiberger Lebensmittel GmbH & Co. Produktions- und Vertriebs KG, established in Berlin, represented by K.-D. Rathke, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: A. von Mühlendahl and G. Schneider), the other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance, being Roberto Traiteur SASU (formerly Roberto S.A.), established in Chevilly (France), represented by R. Milchior, lawyer, — action against the decision of the Fourth Board of Appeal of OHIM of 28 February 2002 (Case R 1155/2000-4), relating to opposition proceedings between Freiberger Lebensmittel GmbH & Co. Produktions- und Vertriebs KG and Roberto S.A. — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N. Forwood, Judges; H. Jung, Registrar, made an order on 9 June 2005, the operative part of which is as follows:

               1.

               There is no need to adjudicate on the application.

               2.

               Each of the parties shall bear its own costs.

      (1)  OJ C 2002 of 24. 8. 2002.


title: Case C-303/07: Reference for a preliminary ruling from the Korkein hallinto-oikeus, Finland lodged on 29 June 2007 — Aberdeen Property Fininvest Alpha Oy

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/21

         Reference for a preliminary ruling from the Korkein hallinto-oikeus, Finland lodged on 29 June 2007 — Aberdeen Property Fininvest Alpha Oy
   (Case C-303/07)
   (2007/C 211/39)
   Language of the case: Finnish
   Referring court
   Korkein hallinto-oikeus, Finland
   Parties to the main proceedings

      Applicant: Aberdeen Property Fininvest Alpha Oy

      Other parties: Uudenmaan verovirasto and Helsingin kaupunki
   Question referred
   Are Articles 43 EC and 48 EC and Articles 56 EC and 58 EC to be interpreted as meaning that, in order to safeguard the fundamental freedoms set out therein, an osakeyhtiö (company limited by shares) or sijoitusrahasto (investment fund) constituted under Finnish law and a SICAV constituted under Luxembourg law are to be regarded as comparable despite the fact that a form of company corresponding exactly to a SICAV is not recognised in Finnish legislation, having regard, first, to the fact that a SICAV, which is a company under Luxembourg law, is not mentioned in the list of companies referred to in Article 2(a) of Directive 90/435/EEC (1), with which the Finnish withholding tax legislation applicable in the present case is consistent, and, second, to the fact that a SICAV is exempt from income tax under domestic Luxembourg tax legislation? Is it therefore contrary to the above articles of the EC Treaty for a SICAV resident in Luxembourg which is the recipient of a dividend not to be exempt from withholding tax charged in Finland on dividends?

      (1)  Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member Sates, OJ L 225, 20.8.1990. p. 6.