title: Case T-5/03: Action brought on 9 January 2003 by Ayassami & Fils EURL and Others against the Council of the European Union

text:
8.3.2003               EN                          Official Journal of the European Union                                          C 55/39
—     annul, to the extent necessary, the decision notified by             Pleas in law and main arguments
      Note 41280 of the Vice-President of the Commission of
      the European Communities, Mr Neil Kinnock, dated
      25 September 2002, not to include the applicant’s name               The applicant companies in the present case object to the
      in the list of most deserving officials and not to promote           extension by the contested act of the exemption arrangement
      him to grade B1 in the promotion exercise for 2001                   from Article 90 of the Treaty in favour of the French overseas
      (decision in reply to the applicant’s Claim No R 220/                departments.
      02, brought for the annulment of the abovementioned
      decision of 21 December 2001);
                                                                           In support of their arguments, they submit that there is
—     order the Commission of the European Communities to
      pay such costs as the Court may assess.                              infringement of Article 299(2) of the Treaty in so far as the
                                                                           Council adopted the contested measure in breach of the
                                                                           conditions laid down therein. The preparatory acts leading up
                                                                           to the contested decision, particularly the report of the
Pleas in law and main arguments                                            Commission to the Council dated 24 November 1999, and
                                                                           points 3 and 5 of the statement of the grounds for the decision
                                                                           proposal by the Commission to the Council of 23 August
In support of his action, the applicant alleges, first, an                 2002 (COM 2002 473 FINAL) show that the prerequisite
infringement of Article 45(1) of the Staff Regulations and of              conditions for validly authorising an extension of the special
the principle of non-discrimination. The applicant further                 tax arrangements in favour of the overseas departments have
alleges an infringement of the principle of respect for the rights         not yet been satisfied.
of the defence, an infringement of the principle prohibiting
arbitrary proceedings and of the obligation to state reasons, an
infringement of the principle of legitimate expectations and of            As regards Decision 89/688 of 22 December 1989, the effects
the rule ‘patere legem quam ipse fecisti’ and, lastly, infringe-           of which were extended by the contested decision, the
ment of the duty to have regard for the interests of officials.            applicants question its legality on the basis of Article 241 of
                                                                           the Treaty, on the grounds that the Council was not competent
                                                                           to authorise it in 1989. They submit that that decision
                                                                           constituted a derogation from Article 95 of the EC Treaty
                                                                           (now Article 90) and thus could no longer be taken by the
                                                                           Council after expiry of the two-year time period provided for
                                                                           in 1957, in the second subparagraph of Article 227(2) of the
Action brought on 9 January 2003 by Ayassami & Fils                        EC Treaty.
EURL and Others against the Council of the European
                              Union
                          (Case T-5/03)
                         (2003/C 55/94)
                    (Language of the case: French)                         Action brought on 10 January 2003 by COLDIRETTI —
                                                                           Federazione Regionale Coltivatori Diretti della Sardegna e
                                                                           CIA — Confederazione Italiana Agricoltori della Sardegna
                                                                               against Commission of the European Communities
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 9 January 2003 by Ayassami & Fils EURL,                                              (Case T-9/03)
established in Saint-François (Guadeloupe), and 23 other
undertakings, represented by John Sylvanus Dagnon, avocat.                                         (2003/C 55/95)
The applicants claim that the Court should:
                                                                                (Language of the case: Italian)
—     Annul Council Decision 2002/973/EC of 10 December
      2002 amending Decision 89/688/EEC of 22 December
      1989 concerning the dock dues in the French overseas
      departments Commission Regulation (OJ 2002 L 337,                    An action against the Commission of the European Communi-
      p. 83).                                                              ties was brought before the Court of First Instance of the
                                                                           European Communities on 10 January 2003 by COLDIRETTI
—     Declare that Council Decision 89/688/EEC of 22 Decem-                — Federazione Regionale Coltivatori Diretti della Sardegna e
      ber 1989 concerning the dock dues in the French overseas             CIA — Confederazione Italiana Agricoltori della Sardegna,
      departments (OJ 1989 L 399, p. 46) is inapplicable.                  represented by Giovanni Dore and Fabio Ciulli, lawyers.


title: Case T-302/14: Action brought on 29 April 2014  — Buderus Guss v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/50

         Action brought on 29 April 2014 — Buderus Guss v Commission
   (Case T-302/14)
   2014/C 223/53
   Language of the case: German

      Parties

      Applicant: Buderus Guss GmbH (Breidenbach, Germany) (represented by: D. Greinacher, J. Martin and B. Scholtka, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul, in accordance with the first paragraph of Article 263 TFEU, the Commission’s decision to initiate the formal investigation procedure in relation to the support for the generation of electricity from renewable energy sources and from mine gas in accordance with the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, ‘EEG’) and the reduced EEG-surcharge for energy-intensive users against the Federal Republic of Germany — State aid SA.33995 (2013/C) (ex 2013/NN) of 18 December 2013, published in the Official Journal of the EU on 7 February 2014 (OJ 2014 C 37, p. 73), in so far as the Commission classifies the special compensation regime pursuant to Paragraphs 40 and 41 of the EEG as State aid within the meaning of Article 107 TFEU;

               —

               order the Commission to pay the costs necessarily incurred pursuant to Article 87(3) of the Rules of Procedure of the General Court.

      Pleas in law and main arguments

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

               1.

               First plea in law: Infringement of Article 107 TFEU
               The applicant claims that the Commission wrongly classified the support for renewable energies by way of the surcharge system and the special compensation regime to reduce the EEG-surcharge as aid and therefore should not have initiated the formal investigation procedure.

                           —

                           In this connection, the applicant contends that the Commission made a manifest error of assessment in the preliminary assessment of the issue of whether the special compensation regime constitutes aid, since the special compensation regime, as an exception to the EEG-surcharge, does not grant any advantage which energy-intensive users would not have obtained under normal market conditions.

                           —

                           The applicant also claims that no State resources are affected. Since the proceeds from the EEG-surcharge already did not constitute State resources, no State resources could be affected even by the exception for energy-intensive users.

                           —

                           The applicant further claims that the special compensation regime also does not distort competition. At most, it establishes the competitive conditions which exist without the EEG-surcharge.

               2.

               Second plea in law: Infringement of the principle of the protection of legitimate expectations
               The applicant claims that, by adopting the decision, the Commission also infringes the principle of the protection of legitimate expectations. The German scheme to support renewable energy has already been subject to a thorough State aid assessment. In that assessment, the Commission in 2002 concluded that a transfer of State resources is not linked to that scheme. Since the 2012 EEG does not, in this respect, contain any substantial amendments to the legal position at the time, the economic operators concerned ought not to have expected a re-examination, but should have been entitled to rely on the continuance of the scheme.

               3.

               Third plea in law: Misuse of powers
               Lastly, the applicant considers that the Commission misused the discretion afforded to it under Articles 107 and 108 TFEU. By initiating the investigation procedure, the Commission is primarily pursuing the objective of fundamentally harmonising the support for renewable electricity. That fundamental objective is also evidenced by the new draft guidelines for environmental and energy aid, in which the Commission for the first time lays down detailed schemes to support renewable energies. In order to work towards a harmonisation, the Commission would, however, have to apply the procedure for approximating laws pursuant to Articles 116 and 117 TFEU, which is laid down for that purpose.


title: Case C-324/12: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 9 July 2012 — Novontech-Zala Kft v LOGICDATA Electronic & Software Entwicklungs GmbH

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/13

         Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 9 July 2012 — Novontech-Zala Kft v LOGICDATA Electronic & Software Entwicklungs GmbH
   (Case C-324/12)
   2012/C 303/24
   Language of the case: German

      Referring court

   Handelsgericht Wien

      Parties to the main proceedings

      Appellant and defendant: Novontech-Zala Kft

      Respondent and applicant: LOGICDATA Electronic & Software Entwicklungs GmbH

      Questions referred

               1.

               Does the failure on the part of a party’s lawyer to comply with the time limit for opposing a European order for payment constitute fault on the part of the defendant for the purposes of Article 20(1)(b) of Regulation (EC) 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure? (1)

               2.

               If fault on the part of the lawyer representing the defendant is not to be regarded as fault on the part of the defendant itself, is the failure of the former to take note of the correct date of expiry of the time limit for opposing a European order for payment to be regarded as an extraordinary circumstance within the meaning of Article 20(2) of Regulation 1896/2006?

      (1)  OJ 2006 L 399, p. 1.


title: Reference for a preliminary ruling from the Tribunal de Commerce de Nivelles by judgment of that court of 2 June 1995 in the case of Biogen Inc. v. Smithkline Beecham Biologicals SA (Case C-181/95)

text:
No C 208/ 12            EN                  Official Journal of the European Communities                                        12 . 8 . 95
Reference for a preliminary ruling from the Tribunal de                Reference for a preliminary ruling from the Finanzgericht
Commerce de Nivelles by judgment of that court of 2 June               Hamburg by judgment of 19 May 1995 in the case of T. Port
1995 in the case of Biogen Inc. v. Smithkline Beecham                           GmbH & Co v. Hauptzollamt Hamburg-Jonas
                           Biologicals SA                                                          ( Case C-l 82/95 )
                         ( Case C-181 /95 )                                                           ( 95/C 208/23 )
                           ( 95/C 208/22
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by a judgment of the Joint Senate of
Reference has been made to the Court of Justice of the                 the Finanzgericht ( Finance Court) Hamburg for the Lander
European Communities by a judgment of the Tribunal de                  of the Free and Hanseatic City of Hamburg, Lower Saxony
Commerce de Nivelles ( Commercial Court, Nivelles ) of                 and Schleswig-Holstein, Fourth Senate, of 19 May 1995 ,
2 June 1995 , which was received at the Court Registry on              which was received at the Court Registry on 12 June 1995 ,
12 June 1995 , for a preliminary ruling in the case of Biogen          for a preliminary ruling in the case of T. Port GmbH & Co v.
Inc . v. Smithkline Beecham Biologicals SA on the following            Hauptzollamt ( Principal Customs Office ) Hamburg-Jonas
questions :                                                            on the following questions :
                                                                       1 . Is the first paragraph of Article 234 of the EC Treaty to
1 . In the event that the holder of the basic patent or his                  be interpreted as meaning that the application of
     successor in title is a person other than the holder of the             Articles I, II and III of the GATT takes precedence in the
     authorization to place the medical product concerned                    Federal Republic of Germany over Articles 18 and 19 in
     on the market, is the latter obliged to provide to the                  conjunction with Article 17 of Regulation ( EEC )
     patent holder on request, or, where appropriate, several                No 404/93 (')?
     patent holders when they so request, the 'copy' of that
     authorization which is referred to in Article 8 ( 1 ) ( b ) of
     Council Regulation ( EEC ) No 1768/92 of 18 June 1992
                                                                       2 . ( a ) Is Regulation ( EC ) No 478/95 ( 2 ), which is based on
                                                                                Regulation ( EEC ) No 404/93 , valid ?
     concerning the creation of a supplementary protection
     certificate for medicinal products (')?
                                                                             ( b ) If so, is the first paragraph of Article 234 of the EC
                                                                                Treaty to be interpreted as meaning that the
2 . Where one and the same product is covered by several                           application of Article XIII of the GATT takes
      basic patents belonging to different holders, does                           precedence over that regulation ?
      Regulation ( EEC ) No 1768/92 preclude the grant of a
     supplementary protection certificate to each holder of a          3 . In the event that questions 1 and 2 ( b ) are answered in
      basic patent ?                                                         the affirmative : are Community citizens entitled to rely
                                                                             in proceedings before the courts of Member States of the
                                                                             Community on the precedence of the aforesaid GATT
3 . Regard being had to the wording of Article 6 of                          provisions as regards their application ?
      Regulation ( EEC ) No 1768/92, may the holder of the
      authorization to place the medicinal product on the
      market refuse to give a holder of a basic patent or his          4 . On what conditions may a court of a Member State
      successor in title the copy of that authorization referred             grant interim relief by issuing an interim injunction
      to in Article 8 ( 1 ) ( b ) of the regulation and thereby              where it has doubts as to the applicability of the
      deprive him of the possibility of completing his                       secondary Community law which underlies the legal
      application for a             supplementary protection                 appraisal ?
     certificate ?
                                                                       (!) OJ No L 47, 25 . 2 . 1993 , p . 1 .
                                                                       ( 2 ) OJ No L 49 , 4 . 3 . 1995 , p . 13 .
4 . May the relevant administrative and/or government
      authority which granted the authorization to place the
      product on the market or is the depositary of an original
      or a copy of the said authorization refuse to supply a
      copy to the holder of the basic patent or patents
      concerned or to his successor in title or may it decide,         Reference for a preliminary ruling from the College van
      arbitrarily or subject to certain conditions , whether it is     Beroep voor het Bedrijfsleven by judgment of 24 May 1995
      advisable to provide or communicate such copy with a             in the case of Affish BV and Rijksdienst voor de Keuring van
      view to its being used to support an application for a                                            Vee en Vlees
      supplementary protection certificate under the                                                ( Case C-l 83/95 )
      provisions of Council Regulation ( EEC ) No 1768/92 ?
                                                                                ( 95/C 208/24 )
(>) OJ No L 182 , 2 . 7. 1992 , p . 1 .                                 Reference has been made to the Court of Justice of the
                                                                        European Communities by a judgment of the College van
                                                                        Beroep voor het Bedrijfsleven ( Administrative Court for
                                                                        Trade and Industry) of 24 May 1995 , which was received at
                                                                        the Court Registry on 12 June 1 995 , for a preliminary ruling


title: Case T-631/11: Judgment of the General Court of 20 February 2013 — Caventa v OHIM — Anson’s Herrenhaus (B BERG) (Community trade mark — Opposition proceedings — Application for the Community figurative mark B BERG — Earlier Community word mark Christian Berg — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/24

         Judgment of the General Court of 20 February 2013 — Caventa v OHIM — Anson’s Herrenhaus (B BERG)
   (Case T-631/11) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark B BERG - Earlier Community word mark Christian Berg - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 108/63
   Language of the case: German

      Parties

      Applicant: Caventa AG (Rekingen, Switzerland) (represented initially by: J. Krenzel, then by T. Stein and A. Segler, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel and D. Walicka, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Anson's Herrenhaus KG (Düsseldorf, Germany) (represented by: O Löffel and P. Lange, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 15 September 2011 (Case R 2014/2010-1), relating to opposition proceedings between Anson’s Herrenhaus KG and Caventa AG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Caventa AG to pay the costs.

      (1)  OJ C 32, 4.2.2012.


title: Case C-581/11 P: Order of the Court of 12 July 2012 — Muhamad Mugraby v Council of the European Union, European Commission (Appeal — Action for a declaration of failure to act — Infringement of fundamental rights and of the Association Agreement between the European Community and the Republic of Lebanon — Failure of the Council and of the Commission to take measures against the Republic of Lebanon — Action for damages — Appeal clearly unfounded and clearly inadmissible)

text:
               12.1.2013

               EN

               Official Journal of the European Union

               C 9/24

         Order of the Court of 12 July 2012 — Muhamad Mugraby v Council of the European Union, European Commission
   (Case C-581/11 P) (1)

   (Appeal - Action for a declaration of failure to act - Infringement of fundamental rights and of the Association Agreement between the European Community and the Republic of Lebanon - Failure of the Council and of the Commission to take measures against the Republic of Lebanon - Action for damages - Appeal clearly unfounded and clearly inadmissible)
   2013/C 9/39
   Language of the case: English

      Parties

      Appellant: Muhamad Mugraby (represented by: S. Delhaye, avocate)

      Other parties to the proceedings: Council of the European Union (represented by: B. Driessen and M.-M. Joséphidès, acting as Agents), European Commission (represented by: S. Boelaert and F. Castillo de la Torre, acting as Agents)

      Re:

   Appeal brought against the order of the General Court (Third Chamber) of 6 September 2011 in Case T-292/09 Mugraby v Council and Commission dismissing an action for failure to act seeking a declaration that the Council and the Commission unlawfully omitted to take a decision on the then applicant’s request concerning the adoption of measures against Lebanon on account of the alleged violation by the latter of the then applicant’s fundamental rights and of the Association Agreement between the Community and the Republic of Lebanon, and dismissing, moreover, an action seeking compensation for the harm allegedly suffered by the then applicant as a result of those Community institutions’ failure to act

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Mugraby shall pay the costs.

      (1)  OJ C 25, 28.1.2012.


title: Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-465/01: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Nationals of the Union or the EEA — Nationals of a non-member State associated with the Community by way of an agreement — Eligibility for election to workers' chambers and works councils — Principle of non-discrimination as regards conditions of work)

text:
               6.11.2004

               EN

               Official Journal of the European Union

               C 273/1

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 16 September 2004
   in Case C-465/01: Commission of the European Communities v Republic of Austria (1)

   (Failure of a Member State to fulfil obligations - Freedom of movement for workers - Nationals of the Union or the EEA - Nationals of a non-member State associated with the Community by way of an agreement - Eligibility for election to workers' chambers and works councils - Principle of non-discrimination as regards conditions of work)
   (2004/C 273/02)
   Language of the case: German
   In Case C-465/01: action under Article 226 EC for failure to fulfil obligations, brought on 4 December 2001, Commission of the European Communities (Agent: J. Sack ) v Republic of Austria (Agent: H. Dossi) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, P. Kuris and G. Arestis, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 16 September 2004, in which it:

               1.

                           (a)

                           Declares that: by denying workers who are nationals of other Member States of the European Union or the European Economic Area the right to stand for election to workers' and employees' chambers, the Republic of Austria has failed to fulfil its obligations under Article 39 EC, Article 8 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, and Article 28 of the Agreement on the European Economic Area;

                           (b)

                           by denying workers who are nationals of a non-member State with which the Community has concluded an agreement prohibiting discrimination, as regards conditions of work, against any such workers legally employed in a Member State, the right to stand for election to works councils and the general assemblies of workers' and employees' chambers, the Republic of Austria has failed to fulfil its obligations under those agreements;

               2.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 84 of 6.4.2002.


title: Case C-119/01: Action brought on 19 March 2001 by Commission of the European Communities against Finland

text:
5.5.2001                EN                    Official Journal of the European Communities                                       C 134/11
Question 2                                                               Pleas in law and main arguments
Does the fact that the office of departure did not follow an             The mandatory nature of the provisions of Articles 10 and
administrative instruction for the transmission of information           249 EC is such as to oblige Member States to adopt the
laid down in the Customs Code Committee (early warning                   measures necessary in order to transpose directives which are
system) or that the authorities in the office of departure can be        addressed to them into their national legal order prior to the
criticised for failure to notify in good time have any bearing           expiry of the time-limits prescribed for so doing. Those time-
on the answer to Question 1?                                             limits, laid down in Article 5 of Directive 1999/20/EC and in
                                                                         Article 2 of Directive 96/51/EC, expired on 30 September and
                                                                         1 October 1999 respectively.
(1) Council Regulation (EEC) No 2913/92 of 12 October 1992
    establishing the Community Customs Code (OJ 1992 L 302,
    p. 1).                                                               (1) OJ L 80 of 25.3.1999, p. 20.
(2) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying         (2) OJ L 235 of 17.9.1996, p. 39.
    down provisions for the implementation of Council Regulation
    (EEC) No 2913/92 (OJ 1993 L 253, p. 1).
                                                                         Action brought on 19 March 2001 by Commission of the
Action brought on 16 March 2001 by the Commission of                                European Communities against Finland
 the European Communities against the French Republic
                                                                                (Case C-119/01)
                          (Case C-118/01)
                                                                                (2001/C 134/18)
                          (2001/C 134/17)
                                                                         An action against Finland was brought before the Court of
An action against the French Republic was brought before the             Justice of the European Communities on 19 March 2001 by
Court of Justice of the European Communities on 16 March                 the Commission of the European Communities, represented
2001 by the Commission of the European Communities,                      by Lena Ström, acting as Agent, with an address for service in
represented by A. Bordes, acting as Agent, with an address for           Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
service in Luxembourg.                                                   Center, Kirchberg, Luxembourg.
The Commission of the European Communities claims that
                                                                         The Commission claims that the Court should:
the Court should:
1.    declare that, by failing to bring into force within the            —     declare that, by failing to adopt all the laws, regulations,
      prescribed time-limits the laws, regulations and adminis-                and administrative provisions necessary to implement
      trative measures necessary in order to comply with:                      Directive 96/61/EC (1) concerning integrated pollution
                                                                               prevention and control with regard to the province of
      —     Council Directive 1999/20/EC of 22 March 1999                      Åland, or in any case by failing to communicate them to
            amending Directives 70/524/EEC concerning addi-                    the Commission, Finland has failed to fulfil its obligations
            tives in feedingstuffs, 82/471/EEC concerning cer-                 under the directive;
            tain products used in animal nutrition, 95/53/EC
            fixing the principles governing the organisation of          —     order Finland to pay the costs.
            official inspections in the field of animal nutrition
            and 95/69/EC laying down the conditions and
            arrangements for approving and registering certain           Pleas in law and main arguments
            establishments and intermediaries operating in the
            animal feed sector (1);                                      The period for implementing the directive expired on 30 Octo-
                                                                         ber 1999. As regards the province of Åland the Commission
      —     Council Directive 96/51/EC of 23 July 1996                   was informed that a provincial law on the protection of the
            amending Directive 70/524/EEC concerning addi-               environment and environmental planets was adopted by the
            tives in feedingstuffs (2),                                  Lagtinget, but that it does not depend upon the Finnish
                                                                         president’s ratification.
      the French Republic has failed to fulfil its obligations
      under the abovementioned directives and under the third
      paragraph of Article 249 and the first paragraph of                (1) Text of 24.9.1996 (OJ L 257 of 10.10.1996, p. 26).
      Article 10 of the EC Treaty;
2.    order the French Republic to pay the costs.


title: Case T-228/14: Action brought on 14 April 2014 — CBM Creative Brands Marken v OHIM — Aeronautica Militare — Stato Maggiore (TRECOLORE)

text:
               28.7.2014

               EN

               Official Journal of the European Union

               C 245/18

         Action brought on 14 April 2014 — CBM Creative Brands Marken v OHIM — Aeronautica Militare — Stato Maggiore (TRECOLORE)
   (Case T-228/14)
   2014/C 245/25
   Language in which the application was lodged: English

      Parties

      Applicant: CBM Creative Brands Marken GmbH (Zürich, Switzerland) (represented by: U. Lüken, M. Grundmann and N. Kerger, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Aeronautica Militare — Stato Maggiore (Rome, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 January 2014 in Case R 594/2013-1 in so far as the First Board of Appeal upheld the decision of the opposition division rejecting the Application No 009 877 391 in regard of the goods in classes 18 and 25 and in regard of the services ‘Retail services, including via websites and teleshopping, in relation to clothing, footwear, headgear, sunglasses, precious metals and their alloys and goods in precious metals or coated therewith, jewellery, precious stones, horological and chronometric instruments, leather and imitations of leather, and goods made of these materials, animal skins, hides, trunks and travelling bags, bags, handbags, wallets, purses, key cases, rucksacks, pouches, umbrellas, parasols and walking sticks, whips, harness and saddlery’ of class 35;

               —

               Dismiss the opposition against Application No 009 877 391 in its entirety;

               —

               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 figurative mark containing the word element ‘TRECOLORE’ for goods and services in Classes 18, 25 and 35 — Community trade mark application No 9 877 391

      Proprietor of the mark or sign cited in the opposition proceedings: Aeronautica Militare — Stato Maggiore

      Mark or sign cited in opposition: The community and national word and figurative mark ‘FRECCE TRICOLORI’, for goods and services in Classes 9, 14, 16, 18, 20, 25, 28 and 41

      Decision of the Opposition Division: Partially rejected the opposition.

      Decision of the Board of Appeal: Dismissed the appeal.

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009


title: Case C-174/06: Reference for a preliminary ruling from the Corte Suprema di Cassazione lodged on  3 April 2006  — Ministero delle Finanze v CO.GE.P Srl

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/7

         Reference for a preliminary ruling from the Corte Suprema di Cassazione lodged on 3 April 2006 — Ministero delle Finanze v CO.GE.P Srl
   (Case C-174/06)
   (2006/C 154/16)
   Language of the case: Italian
   Referring court
   Corte Suprema di Cassazione
   Parties to the main proceedings

      Applicant: Ministero delle Finanze

      Defendant: CO.GE.P Srl
   Question referred
   Does the grant to an entity of a right to use, including exclusively, public property without provision of services of a nature such as to outweigh that of the permission to use the property, for a specified period and against payment of a much lower amount than the value of the property, which is made, at the request of the party concerned, by a public entity carrying on a business, through the enactment of an administrative measure rather than by contract, such as the concession, under national law, of property owned by the State constitute the letting of immovable property exempt from VAT under Article 13B(b) of Sixth Directive 77/388/EEC? (1)

      (1)  OJ 1977, L 145 p. 1.


title: Case C-306/02: Reference for a preliminary ruling by the Commissione Tributaria di Primo Grado di Trento, Sezione No 6 by order of that Court of 6 June 2002 in the cases pending between Petrolvilla & Bortolotti Spa (previously S.C.D. Srl), Energy Service Srl, Panarotta 2002 Srl, Tumedei Spa, NTB Spa (previously Nuova Tessilbrenta Spa), Hotel Bellavista di Litterini Valter e Nadia Snc, Cattoni Hotel Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl, Pavarini Components Srl, Tecnopal Srl, Funivie Madonna di Campiglio Spa against Agenzia delle Entrate (previously Direzione delle Entrate) per la Provincia di Trento

text:
C 261/6                 EN                      Official Journal of the European Communities                                   26.10.2002
heat treatment or had been packaged in airtight containers.                Reference for a preliminary ruling by the Commissione
The Commission claims that the peaches and pears intended                  Tributaria di Primo Grado di Trento, Sezione No 6 by
for the production of fruit salad had not undergone adequate               order of that Court of 6 June 2002 in the cases pending
heat treatment (pasteurisation or sterilisation) and had been              between Petrolvilla & Bortolotti Spa (previously S.C.D.
stored in open containers, irrespective of the fact that those             Srl), Energy Service Srl, Panarotta 2002 Srl, Tumedei Spa,
products had been stored for only a few days before being                  NTB Spa (previously Nuova Tessilbrenta Spa), Hotel
included in fruit salads. The infringement of the regulations              Bellavista di Litterini Valter e Nadia Snc, Cattoni Hotel
was in respect of the classification of those products as                  Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
‘intermediate products for the production of fruit salad’. Such            Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
a product was not approved for aid until 1997-1998. The                    di Campiglio Spa against Agenzia delle Entrate (previously
Commission’s position is not valid. Payment of the aid to the                   Direzione delle Entrate) per la Provincia di Trento
processing industries was effected pursuant to Regulation (EC)
No 504/97, which defines peaches in syrup and/or in natural                                         (Case C-306/02)
fruit juice as whole peaches or pieces of peaches, without peel,
having undergone a heat treatment, packed in hermetically
sealed containers with a covering liquid of sugar syrup or                                          (2002/C 261/10)
natural fruit juice. The regulation does not specify the type of
container, require that heat treatment should be applied, nor
lay down the intended use. The Italian Government claims that
                                                                           Reference has been made to the Court of Justice of the
the financial correction applied to 100 % of the products
                                                                           European Communities by order of the Commissione Tributa-
subsequently intended for the production of fruit salad con-               ria di Primo Grado di Trento, Sezione No 6 (Tax Court of First
tained in 200 kilogram containers is unlawful and should be
                                                                           Instance, Trento, Sixth Chamber) of 6 June 2002, received at
annulled.
                                                                           the Court Registry on 27 August 2002, for a preliminary
                                                                           ruling in the cases pending between Petrolvilla & Bortolotti
                                                                           Spa (previously S.C.D. Srl), Energy Service Srl, Panarotta 2002
                                                                           Srl, Tumedei Spa, NTB Spa (previously Nuova Tessilbrenta
                                                                           Spa), Hotel Bellavista di Litterini Valter e Nadia Snc, Cattoni
                                                                           Hotel Plaza di Cartoni Giancarlo and C Snc, Villa Luti Srl,
                                                                           Pavarini Components Srl, Tecnopal Srl, Funivie Madonna
Inadequate checks on stocks                                                di Campiglio Spa against Agenzia delle Entrate (previously
                                                                           Direzione delle Entrate) per la Provincia di Trento on the
                                                                           following question:
The Commission may claim that checks were inadequate only                  ‘Does the annual assessment to tax at the rate of 0.75 % per
if it should be found that the objectives laid down in the                 annum of a company’s net assets pursuant to Decree-Law
regulation relating to the determination of the methods for                No 324 of 30 September 1992 in so far as it relates solely to
applying the production aid scheme for such processed                      that part of the net assets consisting exclusively of the
products containing fruit and vegetables had not been attained.            company’s capital as disclosed annually in the balance sheet,
In the present case, no evidence to that effect has even                   constitute a tax having equivalent economic effect to capital
been proffered. It follows that the complaint is general,                  duty already levied at the maximum rate of 1 %, thus rendering
unsubstantiated and, therefore, unlawful. Moreover, it should              it incompatible with Community law and, in particular,
be observed that the EAGGF has never given any indication as               Council Directive 69/335/EEC of 17 July 1969 ( 1)?’
to what method to apply for inspecting stocks, nor is such a
method mentioned in the regulations governing the sector. It
                                                                           (1 ) OJ L 249, 3.10.1969, p. 25.
follows that the Commission cannot claim that a prescribed
accounting and verification method was infringed. Accord-
ingly, the financial correction of 10 % by way of a penalty for
the alleged inadequate implementation of checks is unlawful.
                                                                           Action brought on 5 September 2002 by the Kingdom
( 1) OJ 2002 L 170, p. 77. Commission Decision excluding from              of Sweden against the Commission of the European
     Community financing certain expenditure incurred by the Member                                  Communities
     States under the Guarantee Section of the European Agricultural
     Guidance and Guarantee Fund (EAGGF).
                                                                                (Case C-312/02)
( 2) OJ L 144, 8.6.1991, p. 31.
( 3) OJ 1997 L 78, p. 14.
                                                                                (2002/C 261/11)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of Justice of the European


title: Case C-411/01: Reference for a preliminary ruling by the Tribunal d'Instance de Metz, by judgment of that court of 8 October 2001, in the case of SA GEFCO v Receveur Principal des Douanes

text:
22.12.2001                  EN                Official Journal of the European Communities                                          C 369/9
     the view — which is challenged by the Netherlands —                 Upon triangular outward processing, is an operator prohibited,
     that not only imports of mixtures of sugar and cocoa                upon a proper interpretation of Articles 145 to 151 of the
     with EC/OCT originating status, but also imports of                 Community Customs Code (Regulation (EEC) No 2913/92) (1)
     mixtures of sugar and cocoa with ACP/OCT originating                from deducting, on release of compensating products for free
     status, have an adverse effect on the sugar sector, it has          circulation, the amount of the import duties which would be
     failed in any way whatever to substantiate this;                    applicable to the temporary export goods in accordance with
                                                                         their correct tariff heading where their tariff heading declared
—    Infringement of Article 109(2) of the OCT Decision: the             on their exportation was different because it was incorrect?
     Commission has failed to ensure that the safeguard
     measures adopted pursuant to the contested regulation
     will cause as little disruption as possible to the functioning
     of the association. The Commission has also failed to               (1) Council Regulation (EEC) No 2913/92 of 12 October 1992
                                                                             establishing the Community Customs Code (OJ L 302 of
     determine whether those safeguard measures will have                    19.10.1992, p. 1).
     the intended effect. Finally, the safeguard measures which
     have been adopted go further than is necessary: a
     safeguard measure providing simply for a minimum
     import price for ACP/OCT mixtures would have been
     adequate to achieve the desired objective and would have
     been less onerous for the OCT and the undertakings
     concerned;
—    Misuse of powers: Article 109 of the OCT Decision does
     not confer on the Commission any discretionary power
     to correct or supplement the opportunities for ACP/OCT              Action brought on 19 October 2001 by the Commission
     originating status intended by the Council in cases where           of the European Communities against the Kingdom of
     the use of such an opportunity has consequences which                                               Belgium
     were envisaged or even intended when the OCT Decision
     was adopted;
                                                                                (Case C-415/01)
—    Infringement of the principle of the protection of legit-
     imate expectations;
                                                                                (2001/C 369/16)
—    Infringement of Article 253 EC: the safeguard measure in
     issue is in no way whatever supported by facts or figures.
(1) OJ C ... of ..., p. ...
                                                                         An action against the Kingdom of Belgium was brought
                                                                         before the Court of Justice of the European Communities on
                                                                         19 October 2001 by the Commission of the European
                                                                         Communities, represented by G.V. Jordana and J. Adda, acting
                                                                         as Agents, with an address for service in Luxembourg.
Reference for a preliminary ruling by the Tribunal d’In-                 The applicant claims that the Court should:
stance de Metz, by judgment of that court of 8 October
2001, in the case of SA GEFCO v Receveur Principal des
                                Douanes                                  —     Declare that, inasmuch as the Flemish Region and the
                                                                               Walloon Region have failed to transpose Article 4(1) and
                                                                               (2) of and Annex I to Council Directive 79/409/EEC (1),
                             (Case C-411/01)                                   to define special protection areas within their territories
                                                                               which are capable of being relied upon as against third
                                                                               parties and to take the measures necessary to ensure that
                             (2001/C 369/15)                                   the classification of a site as a special protection area
                                                                               automatically and simultaneously entails the application
                                                                               of a system of protection and conservation which is in
                                                                               line with Community law, the Kingdom of Belgium has
Reference has been made to the Court of Justice of the                         failed to fulfil its obligations under Article 4(1) and (2) of
European Communities by a judgment of the Tribunal d’Instan-                   Council Directive 79/409/EEC of 2 April 1979 on the
ce (District Court), Metz, of 8 October 2001, which was                        conservation of wild birds, together with Article 4(4)
received at the Court Registry on 17 October 2001, for a                       thereof, as partially amended, in accordance with Article 7
preliminary ruling in the case of SA GEFCO v Receveur                          of Directive 92/43/EEC (2), by Article 6(2), (3) and (4) of
Principal des Douanes on the following questions:                              that same directive,


title: Case T-288/14: Action brought on 2 May 2014  — Energiewerke Nord v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/40

         Action brought on 2 May 2014 — Energiewerke Nord v Commission
   (Case T-288/14)
   2014/C 223/43
   Language of the case: German

      Parties

      Applicant: Energiewerke Nord GmbH (Rubenow, Germany) (represented by: T. Volz, M. Ringel, B. Wißmann, M. Püstow, C. Oehme and T. Wielsch, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 to open the formal investigation procedure under Article 108(2) TFEU against the Federal Republic of Germany regarding the support for renewable electricity and the reduced EEG-surcharge for energy-intensive users, State aid SA.33995 (2013/C) (ex 2013/NN), in so far as it applies to the reduction of the EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: No advantage within the meaning of Article 107(1) TFEU

                           —

                           The applicant claims that the reduction of the EEG-surcharge for energy-intensive users, provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG), does not constitute aid within the meaning of Article 107(1) TFEU. In this context, the applicant states that energy-intensive users are not favoured by the arrangement. The special compensation regime is, instead, compensation for exceptional costs which affect the applicant and comparable users to a special degree in the context of the support for renewable electricity, and is intended to re-establish the competitiveness of energy-intensive users who were initially considerably adversely affected by the EEG-surcharge.

               2.

               Second plea in law: No State resources within the meaning of Article 107(1) TFEU

                           —

                           In addition, the applicant claims that the special compensation regime does not constitute a measure granted ‘by a Member State or through State resources’. The applicant states, in this context, that the EEG-surcharge is not a State resource and that even a waiver of those resources by the special compensation regime cannot therefore constitute a measure granted through State resources.

                           —

                           The EEG-surcharge is not collected, administered or even allocated by the State or by a public or private institution nominated or established by the State. Instead, the EEG-surcharge can be directly collected by the transmission system operators on the basis of a corresponding entitlement under civil law. The EEG-surcharge does not benefit the State budget, and consequently the special compensation regime in no way indirectly or directly reduces State revenue.

                           —

                           The EEG-resources are also not available to State authorities. There is also no public control over the EEG-resources, such as by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office of Economics and Export Control, BAFA) or the Bundesnetzagentur (Federal Network Agency).


title: Case T-148/13: Order of the General Court of 15 October 2013 — Spain v Commission (Action for annulment — Time-limit for instituting proceedings — Starting point — Publication in the Official Journal — Inadmissibility)

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/13

         Order of the General Court of 15 October 2013 — Spain v Commission
   (Case T-148/13) (1)

   (Action for annulment - Time-limit for instituting proceedings - Starting point - Publication in the Official Journal - Inadmissibility)
   2013/C 359/25
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented initially by S. Centeno Huerta, then by M. J. García-Valdecasas Dorrego, abogados del Estado)

      Defendant: European Commission (represented by: J. Currall, J. Baquero Cruz and B. Eggers, acting as Agents)

      Re:

   Application for annulment of notice of open competition EPSO/AST/125/12, for the drawing up of a reserve list for assistants (AST 3), in the fields ‘Audit’, ‘Finance/Accounting’ and ‘Economics/Statistics’ (OJ 2012 C 394 A, p. 1).

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               The Kingdom of Spain is ordered to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 123, 27.4.2013.


title: Case T-144/05: Action brought on 12 April 2005 by Pablo Muñiz against the Commission of the European Communities

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/36

         Action brought on 12 April 2005 by Pablo Muñiz against the Commission of the European Communities
   (Case T-144/05)
   (2005/C 132/65)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 April 2005 by Pablo Muñiz, residing in Brussels (Belguim), represented by B. Dehandschutter, lawyer.
   The applicant claims that the Court should:

               1.

               annul the Commission decision of 3 February 2005 in so far as it refuses full access to the documents requested by the applicant;

               2.

               annul the Commission decision of 3 February 2005 in so far as it refuses partial access to the requested documents;

               3.

               order the defendant to bear the costs.

         Pleas in law and main arguments
   The applicant is a lawyer specialising in advising clients on customs related issues. In order to best advise his clients the applicant addressed, on 13 October 2004, a request to the Commission for access to the minutes of the September meeting of the Customs Code Committee — Tariff and Statistical Nomenclature Section as well as for access to certain TAXUD documents. This request was refused on 1 December 2004, on the basis of Article 4.3 of Regulation 1049/2001. The applicant requested a review of the initial decision on 15 December 2004. The contested decision was issued as a result of that request, and confirmed the previous decision to refuse access.
   The applicant contends that the contested decision infringes Article 4.3 of Regulation 1049/2001. According to the applicant, the reasons provided for refusing access, namely that disclosure of the requested documents would seriously undermine the Commission's decision making process, are not valid grounds under this provision. The applicant also contends, in the same context, that the contested decision erroneously reasoned by reference to a category of documents rather than evaluate the content of each one of the requested documents.
   The applicant further considers that Article 4.6 of the same regulation was violated, in that the Commission refused even partial access to the requested documents. He also argues that the contested decision circumvents Article 2.1 of that regulation by leading to a systematic refusal to disclose internal documents, on the sole ground that the relevant file is not closed.
   Finally, the applicant considers that an overriding public interest, consisting in the need for interested parties to have a better understanding of the decisions adopted on tariff classifications matters, justified disclosure of the requested documents.


title: Case T-326/11: Judgment of the General Court of 25 April 2012 — Brainlab v OHIM (BrainLAB) (Community trade mark — Community word mark BrainLAB — Failure to apply for renewal of the registration of the trade mark — Removal of the trade mark from the register on expiry of registration — Application for restitutio in integrum — Article 81 of Regulation (EC) No 207/2009)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/19

         Judgment of the General Court of 25 April 2012 — Brainlab v OHIM (BrainLAB)
   (Case T-326/11) (1)

   (Community trade mark - Community word mark BrainLAB - Failure to apply for renewal of the registration of the trade mark - Removal of the trade mark from the register on expiry of registration - Application for restitutio in integrum - Article 81 of Regulation (EC) No 207/2009)
   2012/C 165/32
   Language of the case: German

      Parties

      Applicant: Brainlab AG (Feldkirchen, Germany) (represented by: J. Bauer, lawyer)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 April 2011 (Case R 1596/2010-4), relating to the application for restitutio in integrum and to the application for the renewal of the registration of the trade mark BrainLAB made by the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 15 April 2011 (Case R 1596/2010-4);

               2.

               Orders each party to bear its own costs.

      (1)  OJ C 269, 10.9.2011.


title: Case C-53/03: Reference for a preliminary ruling by the Epitropi Antagonismou by order of that Court of 22 January 2003 in the case of Sinetairismos Farmakopion Aitolias & Akarnanias — SIFAIT and Others against GLAXOWELLCOME AEVE (subsequently called GLAXOSMITHKLINE AEVE)

text:
C 101/18                 EN                            Official Journal of the European Union                                         26.4.2003
        fishing are actually complied with. The data on overfish-              Reference for a preliminary ruling by the Epitropi Anta-
        ing mentioned above make it clear that the Spanish                     gonismou by order of that Court of 22 January 2003
        authorities have not effectively implemented the control               in the case of Sinetairismos Farmakopion Aitolias &
        measures necessary to protect against overfishing, in                  Akarnanias — SIFAIT and Others against GLAXOWELL-
        particular fishing in the absence of a quota, specifically             COME AEVE (subsequently called GLAXOSMITHKLINE
        through adequate inspection of landings and recording                                                AEVE)
        of catches and landings.
                                                                                (Case C-53/03)
—       Infringement of Article 11(2) of Regulation (EEC)
        No 2241/87 and Article 21(2) of Regulation (EEC)
        No 2847/93: Spain did not monitor thoroughly enough
        the information that it received on catches and how they                                       (2003/C 101/30)
        evolved and therefore fishing of the stocks referred to in
        the reasoned opinions relating to the fishing years
        1990 and 1997 was prohibited too late once the relevant
        quotas had already been exceeded.
                                                                               Reference has been made to the Court of Justice of the
        Compliance with quotas is an absolute obligation, breach               European Communities by order of the Epitropi Antago-
        of which is not dependent on any proof that other                      nismou (Competition Commission) of 22 January 2003,
        Member States have suffered harm or that the conser-                   received at the Court Registry on 5 February 2003, for a
        vation objectives pursued have been jeopardised by                     preliminary ruling in the case of Sinetairismos Farmakopion
        endangering the relevant stocks.                                       Aitolias & Akarnanias — SIFAIT and Others against GLAXO-
                                                                               WELLCOME AEVE (subsequently called GLAXOSMITHKLINE
                                                                               AEVE) on the following questions:
—       Infringement of Article 1(2) of Regulation (EEC) No 2241/
        87 and Article 31 of Regulation (EEC) No 2847/93:                      1.   Where the refusal of an undertaking holding a dominant
        the Spanish authorities did not supply appropriate or                       position to meet fully the orders sent to it by pharmaceuti-
        persuasive data on any legal action taken against those
                                                                                cal wholesalers is due to its intention to limit their export
        responsible for exceeding fishing quotas or for catches                     activity and, thereby, the harm caused to it by parallel
        made in the absence of a quota for cod and mackerel                         trade, does the refusal constitute per se an abuse within
        stocks in 1991, cod in 1992, cod in 1994, Greenland
                                                                                the meaning of Article 82 EC? Is the answer to that
        halibut and redfish in 1995 and ‘other species’ in 1996.                    question affected by the fact that the parallel trade is
                                                                                particularly profitable for the wholesalers because of the
                                                                                different prices, resulting from State intervention, in the
                                                                                Member States of the European Union, that is to say by
                                                                                the fact that pure conditions of competition do not
( 1) Council Regulation (EEC) No 170/83 of 25 January 1983                          prevail in the pharmaceuticals market, but a regime which
     establishing a Community system for the conservation and                       is governed to a large extent by State intervention? Is it
     management of fishery resources (OJ L 24 of 27.1.1983, p. 1).                  ultimately the duty of a national competition authority
( 2) Council Regulation (EEC) No 3760/92 of 20 December 1992                        to apply Community competition rules in the same way
     establishing a Community system for fisheries and aquaculture
     (OJ L 389 of 31.12.1992, p. 1).
                                                                                to markets which function competitively and those in
( 3) Council Regulation (EEC) No 2241/87 of 23 July 1987 estab-
                                                                                which competition is distorted by State intervention?
     lishing certain control measures for fishing activities (OJ L 207 of
     29.7.1987, p. 1).
( 4) Council Regulation (EEC) No 2847/93 of 12 October 1993                    2.   If the Court holds that limitation of parallel trade, for the
     establishing a control system applicable to the common fisheries               reasons set out above, does not constitute an abusive
     policy (OJ L 261 of 20.10.1993, p. 1).                                         practice in every case where it is engaged in by an
( 5) On the basis of the information officially provided by Spain: in               undertaking holding a dominant position, how is possible
     1990, overfishing totalling 1 186,6 tonnes; in 1991, overfishing               abuse to be assessed? In particular:
     totalling 1 728 tonnes; in 1992, overfishing totalling 2 196 tonn-
     es; in 1993, overfishing totalling 179 tonnes; in 1994, overfishing
     totalling 378 tonnes; in 1995, overfishing totalling 3 209 tonnes
     and 528 tonnes in the absence of a quota; in 1996, overfishing                 2.1. Do the percentage by which normal domestic
     totalling 39 tonnes and 23 tonnes in the absence of a quota; in                      consumption is exceeded and/or the loss suffered
     1997, overfishing amounting to 72 tonnes.                                            by an undertaking holding a dominant position
                                                                                compared with its total turnover and total profits
                                                                                constitute appropriate criteria? If so, how are the
                                                                                level of that percentage and the level of that loss
                                                                                determined (the latter as a percentage of turnover
                                                                                and total profits), above which the conduct in
                                                                                question may be abusive?
 ---pagebreak--- 26.4.2003              EN                        Official Journal of the European Union                                           C 101/19
      2.2. Is an approach entailing the balancing of interests           Action brought on 14 February 2003 by the Commission
            appropriate, and, if so, what are the interests to be        of the European Communities against the United
            compared? In particular:                                            Kingdom of Great Britain and Northern Ireland
            (a)  is the answer affected by the fact that the
                 ultimate consumer/patient derives limited                                          (Case C-62/03)
                 financial advantage from the parallel trade and
                                                                                (2003/C 101/32)
            (b)  is account to be taken, and to what extent, of
                 the interests of social insurance bodies in
                 cheaper medicinal products?
      2.3. What other criteria and approaches are considered             An action against the United Kingdom of Great Britain and
            appropriate in the present case?                             Northern Ireland was brought before the Court of Justice of
                                                                         the European Communities on 14 February 2003 by the
                                                                         Commission of the European Communities, represented by
                                                                         X. Lewis and M. Konstantinidis, acting as agents, with an
                                                                         address for service in Luxembourg.
Action brought on 14 February 2003 by the Commission
                                                                         The Applicant claims that the Court should:
of the European Communities against the United
      Kingdom of Great Britain and Northern Ireland
                                                                         1)    declare that, by failing to adopt all the measures necessary
                                                                               to comply with its obligations under Articles 1(a), 1(e),
                          (Case C-61/03)
                                                                               1(f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of Council
                                                                               Directive 75/442/EEC of 15 July 1975 on waste ( 1), as
                         (2003/C 101/31)                                       amended by Council Directive 91/156/EEC of 18 March
                                                                               1991 ( 2), the United Kingdom of Great Britain and
                                                                               Northern Ireland has failed to fulfil its obligations under
An action against the United Kingdom of Great Britain and                      the Directive and under the Treaty establishing the
Northern Ireland was brought before the Court of Justice of                    European Community;
the European Communities on 14 February 2003 by the
Commission of the European Communities, represented by                   2)    order the United Kingdom of Great Britain and Northern
L. Ström and X. Lewis, acting as agents, with an address for                   Ireland to pay the costs.
service in Luxembourg.
The Applicant claims that the Court should:
                                                                         Pleas in law and main arguments
—     declare that the United Kingdom of Great Britain and
      Northern Ireland has failed to fulfil its obligations under
      Article 37 of the Euratom Treaty by failing to provide the         Directive 91/156/EEC required Member States to bring into
      Commission with general data relating to any plan for              force such laws, regulations and administrative provisions as
      the disposal of radioactive waste in whatever form                 are necessary to comply with that directive no later than
      resulting from the decommissioning operations of the               1 April 1993, and to inform the Commission forthwith.
      JASON reactor; and                                                 Article 2(2) thereof provides that Member States shall commu-
                                                                         nicate to the Commission the texts of the main provisions of
—     order the United Kingdom of Great Britain and Northern             national law that they adopt in the field governed by the
      Ireland to pay the costs.                                          directive.
Pleas in law and main arguments                                          As a result of an assessment of the national legislation
                                                                         communicated as transposing the directive the Commission
                                                                         found a number of inconsistencies and gaps in the United
The Commission is of the opinion that the United Kingdom                 Kingdom’s transposition and concludes that Articles 1(a), 1(e),
has failed to fulfil its obligations under Article 37 of the             1(f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of the directive have
Euratom Treaty to provide the Commission with general data               not been correctly transposed into the United Kingdom
relating to any plan for the disposal of radioactive waste in            legislation.
whatever form resulting from the decommissioning operations
of the JASON reactor, thus making it impossible for the
Commission to determine whether the implementation of                    (1 ) OJ L 194, 25.7.1975, p. 39.
such a plan is liable to result in the radioactive contamination         (2 ) OJ L 78, 26.3.1991, p. 32.
of the water, soil or airspace of another Member State.


title: Judgment of the Court of First Instance of 5 December 2002 in Case T-119/99: Paul Edwin Hoyer v Commission of the European Communities (Temporary agents — Execution of a judgment of the Court of First Instance — Recommencement of internal competition COM/LA/2/89 — Omission from the list of suitable candidates)

text:
22.2.2003               EN                           Official Journal of the European Union                                            C 44/21
                                                          COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 5 December 2002                                                           of 5 December 2002
in Case T-119/99: Paul Edwin Hoyer v Commission of the                       in Case T-209/99: Paul Edwin Hoyer v Commission of the
                   European Communities ( 1)                                                    European Communities ( 1)
(Temporary agents — Execution of a judgment of the Court                     (Temporary agents — Execution of a judgment of the Court
of First Instance — Recommencement of internal competition                     of First Instance — Action for damages — Admissibility)
COM/LA/2/89 — Omission from the list of suitable candi-
                                dates)
                                                                                (2003/C 44/37)
                          (2003/C 44/36)
                                                                                (Language of the case: Dutch)
                    (Language of the case: Dutch)
                                                                             In Case T-209/99: Paul Edwin Hoyer, formerly a temporary
In Case T-119/99: Paul Edwin Hoyer, formerly a temporary                     agent of the Commission of the European Communities,
agent of the Commission of the European Communities,                         residing in Hoeilaart, Belgium, represented by G. van der Wal,
residing in Hoeilaart, Belgium, represented by G. van der Wal,               Lawyer, with an address for service in Luxembourg, against
Lawyer, with an address for service in Luxembourg, against                   Commission of the European Communities (Agents: initially
Commission of the European Communities (Agents: initially                    G. Valsesia and C. Van der Hauwaert, subsequently F. Clotuche-
G. Valsesia and C. Van der Hauwaert, subsequently F. Clotuche-               Duvieusart and H.M.H. Speyart) — application for compen-
Duvieusart and H.M.H. Speyart) — application for annulment                   sation of material and psychological damage suffered as a
of the Commission’s competition COM/LA/2/89 or at least                      result of the judgments delivered by the Court of First Instance
annulment of the jury’s decision to omit the applicant from                  on 17 March 1994 in Case T-43/91 Hoyer v Commission
the list of suitable candidates in the competition, notified to              ECR-SC I-A-91 and II-297 and Case T-51/91 Hoyer v Com-
the applicant by letter of the Commission of 15 February 1999                mission ECR-SC I-A-103 and II-341 — the Court of First
— the Court of First Instance (Fourth Chamber), composed of                  Instance (Fourth Chamber), composed of M. Vilaras, President,
M. Vilaras, President, and V. Tiili and P. Mengozzi, Judges;                 and V. Tiili and P. Mengozzi, Judges; J. Palacio González,
J. Palacio González, Principal Administrator, for the Registrar,             Principal Administrator, for the Registrar, gave a judgment on
gave a judgment on 5 December 2002, in which it:                             5 December 2002, in which it:
1.     Dismissed the application;                                            1.     Dismissed the application as inadmissible;
2.     Ordered each of the parties to bear its own costs.                    2.     Ordered each of the parties to bear its own costs.
( 1) OJ C 226 of 7.8.1999.                                                   (1 ) OJ C 352 of 4.12.1999.


               2.4.2005

               EN

               Official Journal of the European Union

               C 82/45

         Removal from the Register of Case T-131/03 (1)

   (2005/C 82/79)
   (Language of the case: German)
   By order of 13 January 2005, the President of the Second Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-131/03, Sinziger Mineralbrunnen GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs).

      (1)  OJ C 158 of 5.7.2003.


title: Joined Cases T-229/11 and T-276/11: Judgment of the General Court of 13 March 2013 — Inglewood and Others v Parliament (Rules governing the payment of expenses and allowances to Members of the European Parliament — Additional pension scheme — Decisions rejecting applications seeking to benefit from the provisions in force before the amendment to the additional pension scheme in 2009 — Plea of illegality — Acquired rights — Legitimate expectations — Proportionality — Equal treatment)

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/16

         Judgment of the General Court of 13 March 2013 — Inglewood and Others v Parliament
   (Joined Cases T-229/11 and T-276/11) (1)

   (Rules governing the payment of expenses and allowances to Members of the European Parliament - Additional pension scheme - Decisions rejecting applications seeking to benefit from the provisions in force before the amendment to the additional pension scheme in 2009 - Plea of illegality - Acquired rights - Legitimate expectations - Proportionality - Equal treatment)
   2013/C 123/27
   Language of the case: French

      Parties

      Applicants: Lord Inglewood (Penrith, United Kingdom), and the other 10 applicants whose names are set out in the Annex to the judgment (Case T-229/11); and Marie-Arlette Carlotti (Marseilles, France) (Case T-276/11) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal and D. Abreu Caldas, lawyers)

      Defendant: European Parliament (represented by: N. Lorenz, M. Windisch and K. Pocheć, acting as Agents)

      Re:

   Applications for annulment of the European Parliament’s decisions refusing to grant the applicants their voluntary additional pension early, at the age of 60 or in part in the form of a lump sum

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Lord Inglewood and the other 10 applicants whose names are set out in the Annex, as well as Ms Marie-Arlette Carlotti, to pay the costs.

      (1)  OJ C 211, 16.7.2011.


title: Case T-366/06: Action brought on 4 December 2006 — Calebus v Commission

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/29

         Action brought on 4 December 2006 — Calebus v Commission
   (Case T-366/06)
   (2007/C 20/44)
   Language of the case: Spanish
   Parties

      Applicant: Calebus, S.A. (Almería, Spain) (represented by: R. Bocanegra Sierra, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Decision 2006/613/EC of 19 July 2006 (OJ 2006 L 259, p.1) approving the list of sites of Community importance for the Mediterranean biogeographical region, in relation to the inclusion of the farm ‘Las Cuerdas’ as a SCI ‘ES6110006 Ramblas de Gergal, Tabernas y Sur de Sierra Alhamilla’, appearing on that list, and order the Commission to change the delimitation of that SCI so as to exclude the farm referred to.

         Pleas in law and main arguments
   In support of its claims, the applicant submits that the contested decision is:

               —

               contrary to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, (1) in so far as it includes some areas of the appellant's property in SCI ES 6110006 which lack the necessary environmental requirements; and

               —

               arbitrary, in that it has excluded, in that same zone, areas which have the required environmental values which call for classification as a SCI.

      (1)  OJ L 206, 22.7.1992, p. 7


title: Case C-113/07 P: Appeal brought on 27 February 2007 by Selex Sistemi Integrati S.p.A. against the judgment delivered on 12 December 2006 in Case T-155/04 Selex Sistemi Integrati S.p.A. v Commission of the European Communities

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/5

         Appeal brought on 27 February 2007 by Selex Sistemi Integrati S.p.A. against the judgment delivered on 12 December 2006 in Case T-155/04 Selex Sistemi Integrati S.p.A. v Commission of the European Communities
   (Case C-113/07 P)
   (2007/C 117/08)
   Language of the case: Italian
   Parties

      Appellant: Selex Sistemi Integrati S.p.A. (represented by: F. Sciaudone, R. Sciaudone and D. Fioretti, avvocati)

      Other parties to the proceedings: Commission of the European Communities, Eurocontrol — European Organisation for the Safety of Air Navigation
   Forms of order sought
   The appellant claims that the Court should:

               —

               set aside the judgment of the Court of First Instance of the European Communities of 12 December 2006 in Case T-155/04 and refer the case back to that Court for a ruling on the merits in the light of guidance provided by the Court of Justice;

               —

               order the Commission to pay the costs of the present proceedings, and those of the proceedings in Case T-155/04.

         Pleas in law and main arguments
   In support of the forms of order sought, the appellant alleges a number of errors in law in relation both to the procedure and to the merits.
   Errors in law in relation to the procedure
   By way of errors in law on the part of the Court of First Instance in relation to the procedure, the appellant alleges:

               —

               infringement of Article 116(6) of the Rules of Procedure of the Court of First Instance, in so far as that Court authorised communication of the pleadings to Eurocontrol and permitted the latter to lodge written pleadings;

               —

               infringement of Article 48(2) of the Rules of Procedure of the Court of First Instance, in so far as the facts on the basis of which the new pleas adduced by the appellant were ruled inadmissible were distorted;

               —

               infringement of Article 48(2) of the Rules of Procedure of the Court of First Instance, in so far as the Commission's conduct vis-à-vis the facts on the basis of which the new pleas adduced by the appellant were ruled inadmissible was not taken into consideration;

               —

               infringement of Article 66(1) of the Rules of Procedure of the Court of First Instance, in so far as no order was made in relation to the request for measures of inquiry.

         Errors in law in relation to the merits
   By way of errors in law in relation to the applicability of Article 82 EC to the assistance given by Eurocontrol to national administrations, the appellant alleges:

               —

               distortion of the content of the contested decision;

               —

               the contradictory nature of the reasons given for not annulling the contested decision despite the fact that the first plea in law adduced by the applicant was upheld;

               —

               the contradictory nature of the reasoning, in so far as the Court of First Instance substituted its own reasoning for that used by the Commission in the contested decision;

               —

               failure to comply with established Community case-law concerning the limits of judicial review;

               —

               manifest error of assessment as regards the infringement of Article 82 EC.

         As regards the errors in law in relation to the applicability of Article 82 EC to Eurocontrol's standardisation activities, the appellant alleges:

               —

               distortion of the content of the contested decision;

               —

               adoption of a notion of economic activity incompatible with that developed by the Community case-law;

               —

               misinterpretation and misapplication of the Community case-law concerning social welfare benefits;

               —

               breach of the obligation to provide a sufficient statement of reasons.

         As regards the errors in law in relation to the applicability of Article 82 EC to Eurocontrol's research and development activities (in particular, the acquisition of prototypes and the regime of intellectual property rights), the appellant alleges:

               —

               manifest distortion of the contested decision;

               —

               adoption of a notion of economic activity incompatible with that developed by the Community case-law;

               —

               misrepresentation and distortion of the evidence adduced by the appellant concerning the economic nature of Eurocontrol's management of the regime of intellectual property rights.


title: Case T-347/09: Judgment of the General Court of 12 September 2013 — Germany v Commission (State aid — Transfer free of charge of certain areas of natural national heritage — Measures for the financial support of large-scale environmental protection projects — Decision declaring aid compatible with the common market — Concept of undertaking — Obligation to state reasons)

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/20

         Judgment of the General Court of 12 September 2013 — Germany v Commission
   (Case T-347/09) (1)

   (State aid - Transfer free of charge of certain areas of natural national heritage - Measures for the financial support of large-scale environmental protection projects - Decision declaring aid compatible with the common market - Concept of undertaking - Obligation to state reasons)
   2013/C 313/36
   Language of the case: German

      Parties

      Applicant: Federal Republic of Germany (represented: initially by M. Lumma and B. Klein, then A. Wiedmann and T. Henze, acting as Agents)

      Defendant: European Commission (represented: initially by K. Gross, then F. Erlbacher, A. Stobiecka-Kuik and P. Loewenthal, acting as Agents)

      Interveners in support of the applicant: French Republic (represented by: G. de Bergues and J. Gstalter, acting as Agents); Kingdom of the Netherlands (represented: initally by C. Wissels, Y. de Vries and M. de Ree, then C. Wissels, M. de Ree, J. Langer and M. Noort, acting as Agents); and Republic of Finland (represented by: J. Heliskoski, acting as Agent)

      Re:

   Application for the annulment of Commission Decision C(2009) 5080 final of 2 July 2009 relating to State aid NN 8/2009 granted by the Federal Republic of Germany and concerning the State aid scheme consisting of the transfer, free of charge, of certain areas of natural national heritage, and of measures for the financial support of large-scale environmental protection projects (OJ 2009 C 230, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Federal Republic of Germany to bear its own costs and to pay those of the European Commission;

               3.

               Orders the French Republic, the Kingdom of the Netherlands and the Republic of Finland to bear their own costs.

      (1)  OJ C 267, 7.11.2009.


title: Case T-329/15: Order of the General Court of 17 November 2015 — Certuss Dampfautomaten v OHIM — Universal for Engineering Industries (Universal 1800 TC) (Community trade mark — Opposition proceeding — Withdrawal of the opposition — No need to adjudicate)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/61

         Order of the General Court of 17 November 2015 — Certuss Dampfautomaten v OHIM — Universal for Engineering Industries (Universal 1800 TC)
   (Case T-329/15) (1)

   ((Community trade mark - Opposition proceeding - Withdrawal of the opposition - No need to adjudicate))
   (2016/C 038/82)
   Language of the case: English

      Parties

      Applicant: Certuss Dampfautomaten GmbH & Co. KG (Krefeld, Germany) (represented by: J. Sroka, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Universal for Engineering Industries SAE (Giza, Egypt)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 9 April 2015 (Case R 1303/2014-2) relating to opposition proceedings between Universal for Engineering Industries SAE and Certuss Dampfautomaten GmbH & Co. KG.

      Operative part of the order

               1.

               There is no need to adjudicate on the appeal.

               2.

               Certuss Dampfautomaten GmbH & Co. KG is ordered to bear its own costs and those incurred by the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 279, 24.8.2015.


title: Case T-766/14: Order of the General Court of 23 November 2015 — Actega Terra v OHIM — Heidelberger Druckmaschinen (FoodSafe) (Community trade mark — Invalidity proceedings — Community word mark FoodSafe — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/55

         Order of the General Court of 23 November 2015 — Actega Terra v OHIM — Heidelberger Druckmaschinen (FoodSafe)
   (Case T-766/14) (1)

   ((Community trade mark - Invalidity proceedings - Community word mark FoodSafe - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Action manifestly lacking any foundation in law))
   (2016/C 038/73)
   Language of the case: German

      Parties

      Applicant: Actega Terra GmbH (Lehrte, Germany) (represented by: C. Onken, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Heidelberger Druckmaschinen AG (Heidelberg, Germany) (represented by: I. Lins, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 September 2014 (Case R 2440/2013-4) concerning invalidity proceedings between Heidelberger Druckmaschinen AG and Actega Terra GmbH.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Actega Terra GmbH shall pay the costs.

      (1)  OJ C 46, 9.2.2015.


title: Case T-362/11: Action brought on 7 July 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/46

         Action brought on 7 July 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission
   (Case T-362/11)
   2011/C 252/97
   Language of the case: English

      Parties

      Applicants: Stichting Greenpeace Nederland (Amsterdam, Netherlands) and Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Declare that the Commission’s decision of 6 May 2011 is in violation of Regulation (EC) No 1049/2001 (1);

               —

               Declare that the Commission’s decision of 6 May 2011 is in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Regulation (EC) No 1049/2001 and Regulation (EC) No 1367/2006 (2);

               —

               Annul the Commission’s decision of 6 May 2011; and

               —

               Order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the contested decision violates Article 8(1) and (2) of Regulation (EC) No 1049/2001 for not deciding within the prescribed time-limits on the applicants’ confirmatory application and not providing detailed reasons for doing so.

               2.

               Second plea in law, alleging that the contested decision violates Article 4 of the Aarhus Convention, Article 4(2) and (5) of Regulation (EC) No 1049/2001 and Article 6(1) of Regulation (EC) No 1367/2006 for failure to assess, as:

                           —

                           the ground for refusal is not compliant with the Aarhus Convention;

                           —

                           the information requested qualifies as information relating to emissions into the environment; and

                           —

                           there is an overriding public interest in disclosure of the information requested by the applicants.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)

      (2)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13)


title: Case T-105/06: Action brought on  7 April 2006  — InterVideo v OHIM

text:
               20.5.2006

               EN

               Official Journal of the European Union

               C 121/17

         Action brought on 7 April 2006 — InterVideo v OHIM
   (Case T-105/06)
   (2006/C 121/31)
   Language of the case: English
   Parties

      Applicant: InterVideo, Inc. (California, USA) (represented by: K. Manhaeve, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the decision of the Board of Appeal of 31 January 2006;

               —

               order the defendant to pay all the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The figurative mark ‘WinDVD Creator’ for goods in class 9 — application No 4 106 936

      Decision of the examiner: Refusal of the application
   Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Violation of Articles 4 and 7(1)(b) and (c) of Council Regulation No 40/94 as the Board of Appeal has defined the relevant public incorrectly. The relevant public is, according to the applicant, the average consumer and not PC users familiar with specific computer language.