title: Case T-86/03: Action brought on 6 March 2003 by Holcim against the Commission of the European Communities

text:
10.5.2003              EN                          Official Journal of the European Union                                         C 112/39
Action brought on 6 March 2003 by Holcim against the                       Action brought on 5 March 2003 by Intech EDM AG
          Commission of the European Communities                             against the Commission of the European Communities
                           (Case T-86/03)
                                                                                (Case T-87/03)
                          (2003/C 112/74)
                                                                                (2003/C 112/75)
                    (Language of the case: French)
                                                                                (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 March 2003 by Holcim, a
company established in Paris, represented by Marie-Pia Hutin-
Houillon, lawyer.                                                          An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 5 March 2003 by Intech EDM AG,
The applicant claims that the Court should:                                Losone (Switzerland), represented by M. Karl, Rechtsanwalt.
—     order the Commission to pay EUR 1 488 287,50, corre-
      sponding to the amount of interest to be repaid to
      Holcim, successor to the company Cedest;                             The applicant claims that the Court should:
—     order it to pay, in addition, default interest for the period        —     annul the Commission’s decision of 17 December 2002
      running from 27 July 2000 until judgment is delivered in                   (Case COMP/E-2/37.667 -Special Graphite);
      the present action;
—     declare that both those amounts are to bear interest from            —     in the alternative, reduce the fine imposed by Article 3(h)
      the date judgment is delivered until full payment is made.                 of the decision;
                                                                           —     order the Commission to pay the costs.
Pleas in law and main arguments
The defendant’s decision 94/815/EC imposed on Cedest SA a
fine of ECU 2 522 000 for infringing former Article 85(1) of               Pleas in law and main arguments
the EC Treaty. Following an action for annulment brought by
Cedest (Case T-38/95), the Court, by a judgment of 15 March
2000, annulled the contested decision so far as concerned
Cedest. As a result of that judgment, the defendant repaid to              The applicant distributes isostatically pressed special graphite,
Cedest the principal amount of the fine, but it rejected Cedest’s          but does not itself produce it. Its activity in the European
request concerning payment of interest on that amount in                   special graphite market is based on a cooperation agreement
respect of the period running from 7 May 1995 (payment of                  between itself and Ibiden Co. Ltd., a Japanese producer
the fine by Cedest) to 27 July 2000 (repayment of the fine by              of isostatic special graphite. The Commission accused the
the defendant).                                                            applicant, Intech EMD BV (the former parent company of the
                                                                           applicant), and various producers of isostatic special graphite
                                                                           (including Ibiden) of taking part in a continuing agreement
The applicant has brought the present application asserting                and/or concerted practice on the market for special graphite
that it is the successor to Cedest following a merger. In support          in the European Community and the European Economic
of its application, the applicant claims that the payment of               Area. According to the Commission’s finding, the applicant
default interest on the principal sum of the fine was a measure            participated from February 1994 to May 1997 at European
to implement the judgment annulling the decision which the                 and regional level.
defendant was required to adopt, even in the absence of any
fault on its part. According to the applicant, the defendant’s
failure in this respect enables it, by virtue of the second
paragraph of Article 233 of the EC Treaty, to bring an action              The pleas in law and main arguments are the same as in Case
for compensation in terms of the second paragraph of                       T-74/03 (Intech EMD BV v Commission).
Article 288 of the EC Treaty.


title: Case T-319/16: Action brought on 24 June 2016 — BASF Antwerpen v Commission

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/43

         Action brought on 24 June 2016 — BASF Antwerpen v Commission
   (Case T-319/16)
   (2016/C 305/58)
   Language of the case: English

      Parties

      Applicant: BASF Antwerpen NV (Antwerpen, Belgium) (represented by: H. Gilliams and J. Bocken, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium;

               —

               in the alternative, annul Articles 2-4 of the Decision;

               —

               in any event, annul Articles 2-4 of that Decision in so far as these Articles (a) require recovery from entities other than the entities that have been issued an ‘excess profit ruling’ as defined in the Decision and (b) require the recovery of an amount equal to the beneficiary’s tax savings, without allowing Belgium to take into account an actual upwards adjustment by another tax administration;

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the Commission decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium alleges the existence of an aid scheme.

               2.

               Second plea in law, alleging a violation of Article 107 TFUE and of the duty to state reasons and manifest error of assessment in so far as the contested decision qualifies the purported scheme as a selective measure.

               3.

               Third plea in law, alleging a violation of Article 107 TFUE and manifest error of assessment in so far as the contested decision asserts that the purported scheme gives rise to an advantage.

               4.

               Fourth plea in law, alleging a violation of Article 107 TFUE, infringement of legitimate expectations, manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the contested decision order Belgium to recover aid.


title: Case C-439/11 P: Judgment of the Court (Third Chamber) of 11 July 2013 — Ziegler SA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Article 81 EC and Article 53 of the EEA Agreement — International removal services market in Belgium — Guidelines on the effect on trade between Member States — Legal status — Requirement to define the relevant market — Scope — Right to fair legal process — Principle of good administration — Objective impartiality on the part of the Commission — Guidelines on the method of setting fines (2006) — Proportion of the value of sales — Obligation to state reasons — Fine reduced on grounds of inability to pay or the special circumstances of the case — Equal treatment)

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/8

         Judgment of the Court (Third Chamber) of 11 July 2013 — Ziegler SA v European Commission
   (Case C-439/11 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - International removal services market in Belgium - Guidelines on the effect on trade between Member States - Legal status - Requirement to define the relevant market - Scope - Right to fair legal process - Principle of good administration - Objective impartiality on the part of the Commission - Guidelines on the method of setting fines (2006) - Proportion of the value of sales - Obligation to state reasons - Fine reduced on grounds of inability to pay or the special circumstances of the case - Equal treatment)
   2013/C 252/12
   Language of the case: French

      Parties

      Appellant: Ziegler SA (represented by: J.-F. Bellis, M. Favart and A. Bailleux, avocats)

      Other parties to the proceedings: European Commission (represented by: A. Bouquet and N. von Lingen, Agents)

      Re:

   Appeal brought against the judgment of the General Court (Eighth Chamber) of 16 June 2011 in Case T-199/08 Ziegler v Commission, by which that court dismissed the action for annulment of Commission Decision C(2008) 926 final of 11 March 2008, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International removal services) — Competition — Agreements, decisions and concerted practices — Errors in law — Appreciable effect on trade between Member States — Fine — Infringement of the right to fair legal process and the principle of equality and non-discrimination

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Ziegler SA to pay the costs.

      (1)  OJ C 347, 26.11.2011.


title: Case T-100/13: Action brought on 20 February 2013 — CMT v OHIM — Camomilla (CAMOMILLA)

text:
               18.5.2013

               EN

               Official Journal of the European Union

               C 141/21

         Action brought on 20 February 2013 — CMT v OHIM — Camomilla (CAMOMILLA)
   (Case T-100/13)
   2013/C 141/37
   Language in which the application was lodged: Italian

      Parties

      Applicant: CMT Compagnia manifatture tessili Srl (CMT Srl) (Naples, Italy) (represented by: G. Floridia and R. Floridia, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Camomilla SpA (Buccinasco, Italy)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 November 2012 in Case R 1616/2011-1 by finding that the absolute ground for invalidity under Article 52(1)(b) of Regulation No 207/2009 — based on the bad faith of the proprietor of the Community trade mark at the time when the application was filed — and the relative ground for invalidity under Article 53(1)(a), in conjunction with Articles 8(1)(b) and 8(5) of the regulation, are made out;

               —

               In the alternative, and only in the event that the Court should consider the documents produced at the time of the appeal before the Board of Appeal inadmissible and should consider those documents essential for the purposes of granting the appeal, annul the contested decision on the ground of failure to have regard to the right to be heard and infringement of the rights of the defence and refer the case back to the Cancellation Division for a decision on the substance;

               —

               In any event, call upon OHIM to adopt the measures necessary to comply with the judgment of the General Court;

               —

               Order OHIM to pay the costs of the present proceedings and the trade mark proprietor to pay the costs of the proceedings before the Cancellation Division and the Board of Appeal.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark ‘CAMOMILLA’ for goods in Classes 3, 9, 11, 14, 16, 18, 20, 21, 24, 25, 27, 28, 30 and 33 — Community trade mark No 7 077 55

      Proprietor of the Community trade mark: Camomilla SpA

      Applicant for the declaration of invalidity of the Community trade mark: the applicant

      Grounds for the application for a declaration of invalidity: National figurative mark containing the word element ‘CAMOMILLA’ for goods in Class 25

      Decision of the Cancellation Division: application rejected

      Decision of the Board of Appeal: appeal dismissed

      Pleas in law: Infringement of Article 52(1)(b) and Article 53(1)(a), in conjunction with Article 8(1)(b), of Regulation No 207/2009


title: Case T-217/13: Order of the General Court of 5 June 2014  — Saf-Holland v OHIM (INTEGRAL) (Community trademark — Refusal of registration — Withdrawal of application for registration — No need to adjudicate)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/51

         Order of the General Court of 5 June 2014 — Saf-Holland v OHIM (INTEGRAL)
   (Case T-217/13) (1)

   ((Community trademark - Refusal of registration - Withdrawal of application for registration - No need to adjudicate))
   2014/C 315/86
   Language of the case: German

      Parties

      Applicant: Saf-Holland GmbH (Bessenbach, Germany) (represented by: M.-C. Seiler, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 31 January 2013 (Case R 2087/2011-1) concerning an application for registration of the word mark INTEGRAL as a Community trade mark.

      Operative part of the order

               1.

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

               2.

               The applicant is ordered to pay the costs.

      (1)  OJ C 189, 29.6.2013.


title: Case F-75/14: Action brought on 31 July 2014 — ZZ v ECSEL Joint Undertaking

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/48

         Action brought on 31 July 2014 — ZZ v ECSEL Joint Undertaking
   (Case F-75/14)
   (2014/C 431/77)
   Language of the case: Greek

      Parties

      Applicant: ZZ (represented by: V.A. Christianos, lawyer)

      Defendant: ECSEL Joint Undertaking

      Subject-matter and description of the proceedings

   Application for annulment of the applicant’s appraisal report drawn up in respect of 2012.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the contested decision by which ARTEMIS dismissed the applicant’s complaint and annul the contested act adopted on 15 November by the appeal assessor concerning the applicant’s reasoned refusal to accept the content of his appraisal report in respect of 2012;

               —

               order the ECSEL Joint Undertaking to pay the costs.


title: Judgment of the Court (Sixth Chamber) of 13 July 2004 in Case C-277/03: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil its obligations — Environment — Directive 2000/53/EC — Non-transposition within the prescribed period)

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/14

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 13 July 2004
   in Case C-277/03: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

   (Failure of a Member State to fulfil its obligations - Environment - Directive 2000/53/EC - Non-transposition within the prescribed period)
   (2004/C 228/27)
   Language of the case: English
   In Case C-277/03: Commission of the European Communities (Agents: X. Lewis and M. Konstantinidis,) v United Kingdom of Great Britain and Northern Ireland (Agent: C. Jackson — application for a declaration that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles (OJ 2000 L 269, p. 34) or, in any event, by not communicating those provisions to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive, particularly Article 10(1) thereof, and the EC Treaty — the Court (Sixth Chamber), composed of: J.-P. Puissochet, President of the Chamber, F. Macken (Rapporteur), and S. von Bahr, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has given a judgment on 13 July 2004, in which it:

               1.

               Declares that, by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.

               2.

               Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

      (1)  OJ C 200 of 23.8.2003.


title: Case T-327/02: Action brought on 24 October 2002 by Muller Marine Holding BV, Muller Maritime Holding BV and Handel- en Scheepvaartmaatschappĳ Multraschip BV against the Commission of the European Communities

text:
C 323/40                EN                     Official Journal of the European Communities                                  21.12.2002
According to the applicants, the contested decision further               2.    In the alternative, annul Articles 2 and 3 of the Com-
infringes the principle of protection of legitimate expectations                mission’s contested decision in which the Commission
and Article 14 of Regulation No 659/1999. According to the                      requires the Netherlands Government to adopt all necess-
applicants, they were entitled to rely on the legality of the aid               ary measures in order to recover aid from the recipients
since it had been approved by the Commission. Recovery of                       — with the exception of aid paid before 12 September
aid received would run counter to the applicants’ legitimate                    1990;
expectations.
                                                                          3.    Order the Commission to pay the costs.
By altering its approach to fiscal measures for maritime
transport, the Commission, in adopting the contested decision,
also infringed the principle of legal certainty. In the applicants’
view, a change in the approach to aid measures cannot result              Pleas and main arguments
in already approved aid being classified as new rather than
existing aid.
                                                                          The pleas relied on are the same as in Case T-326/02.
The applicants are also claiming infringements of the principles
of equal treatment and proportionality and of the requirement
to provide a statement of reasons.
( 1) Council Regulation (EC) No 659/1999 of 20 March 1999 laying
     down detailed rules for the application of Article 93 of the EC
     Treaty (OJ 1999 L 83, p. 1).
( 2) Community guidelines on State aid for maritime transport (OJ
     1997 C 205, p. 5).
                                                                          Action brought on 24 October 2002 by Smit Harbour
                                                                          Towage Rotterdam BV against the Commission of the
                                                                                European Communities
                                                                                (Case T-328/02)
                                                                                (2002/C 323/66)
Action brought on 24 October 2002 by Muller Marine
Holding BV, Muller Maritime Holding BV and Handel-
en Scheepvaartmaatschappij Multraschip BV against the                                        (Language of the case: Dutch)
          Commission of the European Communities
                          (Case T-327/02)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of Justice of the European
                         (2002/C 323/65)
                                                                          Communities on 24 October 2002 by Smit Harbour Towage
                                                                          Rotterdam BV, established in Rotterdam, represented by
                    (Language of the case: Dutch)                         T.R. Ottervanger, with an address for service in Luxembourg.
                                                                          The applicants claim that the Court of First Instance should:
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European              1.    Primarily, annul Commission Decision C(2002) 2158 of
Communities on 24 October 2002 by Muller Marine Holding                         19 June 2002 concerning State aid by the Netherlands in
BV, Muller Maritime Holding BV and Handel- en Scheepvaart-                      favour of the activities of Netherlands tugboats in sea
maatschappij Multraschip BV established in Rotterdam, rep-                      harbours and on inland waterways of the Community;
resented by T.R. Ottervanger, with an address for service in
Luxembourg.
                                                                          2.    In the alternative, annul Articles 2 and 3 of the Com-
                                                                                mission’s contested decision in which the Commission
The applicants claim that the Court of First Instance should:                   requires the Netherlands Government to adopt all necess-
                                                                                ary measures in order to recover aid from the recipients
                                                                                — with the exception of aid paid before 12 September
1.     Primarily, annul Commission Decision C(2002) 2158 of
                                                                                1990;
       19 June 2002 concerning State aid by the Netherlands in
       favour of the activities of Netherlands tugboats in sea
       harbours and on inland waterways of the Community;                 3.    Order the Commission to pay the costs.


title: Case C-591/15: Reference for a preliminary ruling from High Court of Justice Queen's Bench Division (Administrative Court) (United Kingdom) made on 13 November 2015 — The Gibraltar Betting and Gaming Association Limited v Commissioners for Her Majesty's Revenue and Customs, Her Majesty's Treasury

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/19

         Reference for a preliminary ruling from High Court of Justice Queen's Bench Division (Administrative Court) (United Kingdom) made on 13 November 2015 — The Gibraltar Betting and Gaming Association Limited v Commissioners for Her Majesty's Revenue and Customs, Her Majesty's Treasury
   (Case C-591/15)
   (2016/C 027/22)
   Language of the case: English

      Referring court

   High Court of Justice Queen's Bench Division (Administrative Court)

      Parties to the main proceedings

      Applicant: The Gibraltar Betting and Gaming Association Limited

      Defendant: Commissioners for Her Majesty's Revenue and Customs, Her Majesty's Treasury

      Questions referred

               1.

               For the purposes of Article 56 TFEU and in the light of the constitutional relationship between Gibraltar and the United Kingdom:

                           1.1.

                           Are Gibraltar and the UK to be treated as if they were part of a single Member State for the purposes of EU law and so that Article 56 TFEU does not apply, save to the extent that it can apply to an internal measure? Alternatively,

                           1.2.

                           Having regard to Article 355(3) TFEU, does Gibraltar have the constitutional status of a separate territory to the UK within the EU such that the provision of services between Gibraltar and the UK is to be treated as intra-EU trade for the purposes of Article 56 TFEU? Alternatively,

                           1.3.

                           Is Gibraltar to be treated as a third country or territory with the effect that EU law is only engaged in respect of trade between the two in circumstances where EU law has effect between a Member State and a non-Member State? Alternatively,

                           1.4.

                           Is the constitutional relationship between Gibraltar and the UK to be treated in some other way for the purposes of Article 56 TFEU?

               2.

               Do national measures of taxation that have features such as those found in the New Tax Regime constitute a restriction on the right to the free movement of services for the purposes of Article 56 TFEU?

               3.

               If so, are the aims, which the referring Court has found domestic measures (such as the New Tax Regime) to pursue, legitimate aims, which are capable of justifying the restriction on the right to free movement of services under Article 56 TFEU?


title: Corrigendum to the notice to the Official Journal in Case T-475/08 P ( OJ C 69, 21.3.2009, p. 40 )

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/29

         Corrigendum to the notice to the Official Journal in Case T-475/08 P
   (
         Official Journal of the European Union C 69 of 21 March 2009, p. 40
      )
   2009/C 167/57
   The correct text of the OJ notice in Case T-475/08 P Duta v Court of Justice is as follows:

         ‘Appeal brought on 29 October 2008 by Radu Duta against the judgment of the Civil Service Tribunal delivered on 4 September 2008 in Case F-103/07, Duta v Court of Justice
         (Case T-475/08 P)
         2009/C 69/93
         Language of the case: French

            Parties

            Appellant: Radu Duta (Luxembourg, Luxembourg) (represented by F. Krieg, lawyer)

            Other party to the proceedings: Court of Justice of the European Communities

            Form of order sought by the appellant

                     —

                     Admit the present appeal;

                     —

                     declare it well founded;

                     —

                     accordingly, by amendment of the judgment of the European Union Civil Service Tribunal of 4 September 2008, declare the appellant’s appeal admissible and well founded;

                     —

                     accordingly, on the basis of the claims set out above, annul the contested decisions;

                     —

                     so far as necessary, return the matter to the competent authority for a ruling in accordance with the judgment in the appeal;

                     —

                     order the respondent to pay the sum of EUR 1 100 000 (one million one hundred thousand Euros) in respect of damages and interest;

                     —

                     so far as necessary, order an expert to give a report on the extent of the financial loss suffered by the appellant;

                     —

                     order the respondent to pay all the costs and expenses of the case;

                     —

                     authorise the appellant expressly to refer to his pleadings at first instance which are annexed to the present appeal and form an integral part thereof;

                     —

                     as to the remainder, authorise the appellant expressly to reserve all his rights of actions and remedies and in particular the right to bring an action before the European Court of Human Rights.

            Pleas in law and main arguments

         By the present appeal, the appellant seeks the annulment of the judgment of the Civil Service Tribunal (CST) of 4 September 2008, delivered in Case F-103/07 Duta v Court of Justice, dismissing as inadmissible the action by which the appellant sought, on the one hand, annulment of the memorandum informing him that he would not be offered a post as a Legal Secretary and, on the other, damages in compensation for the loss allegedly suffered.
         In support of his appeal, the appellant submits, firstly, that his right to a fair hearing, laid down in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, was infringed because of the structural partiality of the Court of First Instance and because of personal acquaintance between the Members of the Court of First Instance and the authors of the decisions contested before the Civil Service Tribunal. Secondly, the applicant refers to his arguments and pleas advanced at first instance, including breach of the principles of transparency, good faith and equal treatment.
         Furthermore, the appellant states his conviction that he will be able to obtain justice only before a court truly independent of his opponent in the proceedings, the Court of Justice of the European Communities, and that he reserves the right to bring his case before the European Court of Human Rights.’


title: Case C-198/13: Judgment of the Court (Fifth Chamber) of 10 July 2014 (request for a preliminary ruling from the Juzgado de lo Social n °1 de Benidorm — Spain) — Víctor Manuel Julian Hernández and Others v Puntal Arquitectura SL and Others (Protection of employees in the event of the insolvency of their employer — Directive 2008/94/EC — Scope — Employer’s right to compensation from a Member State in respect of the remuneration paid to an employee during proceedings challenging that employee’s dismissal beyond the 60th working day after the action challenging the dismissal was brought — No right to compensation in the case of invalid dismissals — Subrogation of the employee to the right to compensation of his employer in the event of that employer’s provisional insolvency — Discrimination against employees who are the subject of an invalid dismissal — Charter of Fundamental Rights of the European Union — Scope — Article 20)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/13

         Judgment of the Court (Fifth Chamber) of 10 July 2014 (request for a preliminary ruling from the Juzgado de lo Social no1 de Benidorm — Spain) — Víctor Manuel Julian Hernández and Others v Puntal Arquitectura SL and Others
   (Case C-198/13) (1)

   ((Protection of employees in the event of the insolvency of their employer - Directive 2008/94/EC - Scope - Employer’s right to compensation from a Member State in respect of the remuneration paid to an employee during proceedings challenging that employee’s dismissal beyond the 60th working day after the action challenging the dismissal was brought - No right to compensation in the case of invalid dismissals - Subrogation of the employee to the right to compensation of his employer in the event of that employer’s provisional insolvency - Discrimination against employees who are the subject of an invalid dismissal - Charter of Fundamental Rights of the European Union - Scope - Article 20))
   2014/C 315/19
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social no1 de Benidorm

      Parties to the main proceedings

      Applicants: Víctor Manuel Julian Hernández, Chems Eddine Adel, Jaime Morales Ciudad, Bartolomé Madrid Madrid, Martín Selles Orozco, Alberto Martí Juan, Said Debbaj

      Defendants: Puntal Arquitectura SL, Obras Alteamar SL, Altea Diseño y Proyectos SL, Ángel Muñoz Sánchez, Vicente Orozco Miro, Subdelegación del Gobierno de España en Alicante

      Operative part of the judgment

   National legislation, such as that at issue in the main proceedings, according to which an employer can request from the Member State concerned payment of remuneration which has become due during proceedings challenging a dismissal after the 60th working day following the date on which the action was brought and according to which, where the employer has not paid that remuneration and finds itself in a state of provisional insolvency, the employee concerned may, by operation of legal subrogation, claim directly from that State the payment of that remuneration, does not come within the scope of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer and cannot, therefore, be examined in the light of the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union and, in particular, of Article 20 thereof.

      (1)  OJ C 189, 29.6.2013.


title: Case C-49/00: Action brought on 16 February 2000 by the Commission of the European Communities against the Italian Republic

text:
C 135/4                EN                      Official Journal of the European Communities                                      13.5.2000
Action brought on 16 February 2000 by the Commission                      Reference for a preliminary ruling by the Oberlandesge-
of the European Communities against the Italian Republic                  richt Innsbruck by order of that court of 15 February
                                                                          2000 in the case of Leopold Hein against Pensions-
                                                                                versicherungsanstalt der Arbeiter
                          (Case C-49/00)
                                                                                (Case C-58/00)
                         (2000/C 135/05)
                                                                                (2000/C 135/06)
An action against the Italian Republic was brought before the             Reference has been made to the Court of Justice of the
Court of Justice on 16 February 2000 by the Commission of                 European Communities by order of the Oberlandesgericht
the European Communities, represented by Enrico Traversa,                 (Higher Regional Court) Innsbruck of 15 February 2000,
Legal Adviser, and Nicola Yerrell, of its Legal Service, acting as        received at the Court Registry on 23 February 2000, for a
Agents, with an address for service in Luxembourg at the office           preliminary ruling in the case of Leopold Hein against
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                    Pensionversicherungsanstalt der Arbeiter (Employees’ Pension
                                                                          Insurance Institution) on the following question:
The applicant claims that the Court should:
                                                                          Is Article 10a of Council Regulation (EEC) No 1408/71 (1) of
                                                                          14 June 1971 on the application of social security schemes to
(a) Declare that:                                                         employed persons, to self-employed persons and to members
                                                                          of their families moving within the Community, as amended
    — by failing to require employers to evaluate all health              and updated by Council Regulation (EEC) No 2001/83 of
         and safety risks existing in the work place,                     2 June 1983, in conjunction with Annex IIa inserted by
                                                                          Council Regulation (EEC) No 1247/92 of 30 April 1992(2), to
    — by allowing employers to decide whether or not to                   be interpreted as meaning that the care allowance under
         enlist external services for the adoption of protective          the Bundespflegegeldgesetz (federal care-allowance law) falls
         and preventive measures when the skills available                within the scope of that provision and is therefore a special
         within the undertaking are insufficient,                         non-contributory benefit within the meaning of Article 4(2a)
                                                                          of that regulation, with the result that the position of a person,
    — by failing to define the capabilities and aptitudes which           such as the applicant, who, after 1 June 1992, satisfied the
         the persons responsible for protective and preventive            conditions for the award of that benefit is governed exclusively
         measures against occupational risks to workers’ health           by the system of coordination established by the said Article
         and safety must possess,                                         10a?
    the Italian Republic has failed to fulfil its obligations under       (1) OJ 1971 L 149, p. 2.
    Article 6(3)(a) and 7(3), (5) and (8) of Council Directive            (2) OJ 1992 L 136, p. 1.
    89/391/EEC (1) of 12 June 1989 on the introduction of
    measures to encourage improvements in the safety and
    health of workers at work;
(b) Order the Italian Republic to pay the costs.
                                                                          Reference for a preliminary ruling by the Bundesverwal-
                                                                          tungsgericht by order of 18 January 2000 in the case of
                                                                          1. Land Baden-Württemberg v Günther Schilling, the
Contentions and principal arguments adduced in support                    Oberbundesanwalt beim Bundesverwaltungsgericht par-
                                                                          ticipating in the proceedings and 2. Bezirksregierung
The Commission considers that the Italian legislation                     Lüneburg v Hans-Otto Nehring, the Oberbundesanwalt
implementing Directive 89/391/EEC is not sufficient to fulfil             beim Bundesverwaltungsgericht participating in the pro-
certain obligations imposed on the Member States by that                                               ceedings
directive. In particular, the Commission criticises the Italian
Republic for failing correctly and fully to give effect to the                                      (Case C-63/00)
following provisions of the directive:
                                                                                (2000/C 135/07)
— Article 6(3)(a);                                                        Reference has been made to the Court of Justice of the
                                                                          European Communities by order of 18 January 2000 by
— Article 7(3);                                                           the Bundesverwaltungsgericht (Federal Administrative Court),
                                                                          which was received at the Court Registry on 28 February
— Article 7(5) and (8).                                                   2000, for a preliminary ruling on the interpretation of Article
                                                                          10(2) of Regulation (EEC) No 3887/92 (1), as amended by
                                                                          Regulation (EEC) No 1648/95 (2): in the case of 1. Land Baden-
(1) OJ L 183 of 29.6.1989, p. 1.                                          Württemberg v Günther Schilling, the Oberbundesanwalt beim
                                                                          Bundesverwaltungsgericht participating in the proceedings and
                                                                          2. Bezirksregierung Lüneburg v Hans-Otto Nehring participat-
                                                                          ing in the proceedings on the following question:


title: Case F-99/12: Order of the Civil Service Tribunal of 8 April 2016 — Chevalier v Committee of the Regions

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/54

         Order of the Civil Service Tribunal of 8 April 2016 — Chevalier v Committee of the Regions
   (Case F-99/12) (1)

   (2016/C 191/79)
   Language of the case: French
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 343, 10/11/2012, p. 24.


title: Case T-238/11 P: Appeal brought on 4 May 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-81/09, Marcuccio v Commission

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/31

         Appeal brought on 4 May 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-81/09, Marcuccio v Commission
   (Case T-238/11 P)
   2011/C 186/57
   Language of the case: Italian

      Parties

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

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

               —

               Set aside the judgment under appeal, in so far as the court at first instance: (a) rejected the action brought before it by the appellant; (b) ordered the appellant to bear three quarters of the costs incurred by him in the proceedings at first instance; and

               (B.1.1.)

               grant all the appellant’s claims in the proceedings at first instance, except for those relating to the payment of costs;

               (B.2.2.)

               order the Commission to pay to the appellant three quarters of the costs incurred by him, which the appellant was ordered to bear in the proceedings at first instance;

         or, in the alternative
      :

               (B.2)

               refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision on each of the claims referred to at (B.1.1.) and (B.2.2.).

      Pleas in law and main arguments

   The present appeal is brought against the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-81/09. That judgment dismissed an action for, first, annulment of the decision of the Commission of the European Communities rejecting in part the appellant's request for payment of default interest on arrears of the invalidity allowance paid to him by that institution and, second, an order that the Commission pay to him a sum corresponding to the difference between the total amount of default interest calculated in accordance with rules which, in his view, should have been applied and that actually paid.

               1.

               First plea in law, alleging total failure to state the reasons for the decision referred to in paragraph 32 of the judgment under appeal, and infringement of the obligation to state reasons incumbent upon every institution of the European Union (paragraphs 41 to 47 of the judgment under appeal).

               2.

               Second plea in law, alleging incorrect and unreasonable interpretation and application of the content of the communication of 8 March 2003, referred to at paragraph 53 of the judgment under appeal.

               3.

               Third plea in law, alleging incorrect and unreasonable interpretation and application of the notion that a rule may be applied by analogy and of the related rules of law and case-law (paragraphs 57 and 58 of the judgment under appeal).

               4.

               Fourth plea in law, alleging infringement of the legal principle patere legem quam ipse fecisti, the effect of which is to vitiate irredeemably the judgment under appeal, and total failure to state reasons in rejecting the argument concerning infringement of the principle patere legem quam ipse fecisti (in particular, paragraph 59 of the judgment under appeal).

               5.

               Fifth plea in law, alleging that the rejection (paragraphs 69 and 70 of the judgment under appeal) of the ‘order for costs’ sought was unlawful, if only on account of the failure to rule on a claim made by the appellant for compensatory interest.

               6.

               Sixth plea in law, alleging that the rejection (paragraphs 73 and 76 of the judgment under appeal) of the claim for compensation for damage was unlawful.

               7.

               Seventh plea in law, alleging that the order requiring the appellant to bear three quarters of the cost of the proceedings was unlawful.


title: Case C-498/01 P: Appeal brought on 24 December 2001 (fax: 20.12.2001) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 3 October 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-140/00 between Zapf Creation AG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 56/8                 EN                    Official Journal of the European Communities                                        2.3.2002
f)    The Commission also considers that, by reason of its              of the dried fodder. According to the Commission, it must also
      failure to respect the requirements of Article 9 and 10 of        be considered that there is a supply for consideration within
      the Directive regarding permits, Ireland is not respecting        the meaning of the Sixth Directive, because the recipient of aid
      Article 13 of the Directive, which requires establishments        is a fodder-processing undertaking which sells fodder to third
      or undertakings carrying waste operations to be subject           parties. In Finland, however, value added tax is not charged on
      to periodic inspection by the authorities, or Article 14 of       such aid.
      the Directive, which requires such establishments or
      undertakings to keep records and to make this infor-
      mation available on request by the competent authorities.         (1) On the harmonisation of the laws of the Member States relating
                                                                            to turnover taxes — Common system of value added tax: uniform
                                                                            basis of assessment, (OJ L 145 of 13.06.1977, p. 1).
(1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ           (2) (OJ L 63 of 21.03.1995, p. 1).
    L 194, 25.07.1975, p. 39).
(2) OJ L 078, 26.03.1991, p. 32.
                                                                        Appeal brought on 24 December 2001 (fax: 20.12.2001)
                                                                        by the Office for Harmonisation in the Internal Market
Action brought on 21 December 2001 by the Commission                    (Trade Marks and Designs) against the judgment delivered
of the European Communities against the Republic of                     on 3 October 2001 by the Fourth Chamber of the Court
                              Finland                                   of First Instance of the European Communities in Case
                                                                        T-140/00 between Zapf Creation AG and the Office for
                                                                        Harmonisation in the Internal Market (Trade Marks and
                         (Case C-495/01)                                                              Designs)
                          (2002/C 56/15)                                                         (Case C-498/01 P)
                                                                                (2002/C 56/16)
An action against the Republic of Finland was brought
before the Court of Justice of the European Communities on
21 December 2001 by the Commission of the European
Communities, represented by E. Traversa and I. Koskinen, with           An appeal against the judgment delivered on 3 October 2001
an address for service in Luxembourg.                                   by the Fourth Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-140/00 between Zapf
                                                                        Creation AG and the Office for Harmonisation in the Internal
The Commission claims that the Court should:                            Market (Trade Marks and Designs) was brought before the
                                                                        Court of Justice of the European Communities on 24 December
                                                                        2001 (fax: 20.12.2001) by the Office for Harmonisation in
1.    Declare that the Republic of Finland is in breach of              the Internal Market (Trade Marks and Designs), represented by
      Article 11 of the Sixth Council Directive 77/388/EEC of           Detlev Schennen, Head of Unit in the Legal Department, and
      17 May 1977 on value added tax (1) by failing to charge           Carina Røhl Søberg, administrator in the Legal Department of
      value added tax on aid paid under Council Regulation              the Office for Harmonisation in the Internal Market (Trade
      (EC) No 603/95 of 21 February 1995 on the common                  Marks and Designs).
      organisation of the market in dried fodder (2);
2.    Order the Republic of Finland to pay the costs.                   The appellant claims that the Court should:
                                                                        (1) dismiss the application of Zapf Creation AG;
Pleas in law and main arguments
                                                                        (2) order Zapf Creation AG (as applicant in the proceedings
                                                                              before the Court of First Instance) to pay the costs of the
                                                                              proceedings before the Court of First Instance;
According to Article 11A(1)(a) of the Sixth VAT Directive, the
taxable amount is the consideration payable for the supply,
which is to include ‘subsidies directly linked to the price’ of the     (3) set aside the judgment of the Court of First Instance of
supply. Since the Community aid granted for the processing                    3 October 2001 in Case T-140/00 ‘New Born Baby’ (1);
and sale of dried fodder is paid on the basis of the amount of
dried fodder sold and treated, the aid must, in the Commission’s        (4) order Zapf Creation AG to pay the costs of the proceed-
opinion, be considered to have a direct influence on the price                ings before the Court of Justice.
 ---pagebreak--- 2.3.2002                 EN                    Official Journal of the European Communities                                           C 56/9
Pleas in law and main arguments                                           Action brought on 21 December 2001 by the Commission
                                                                          of the European Communities against the Kingdom of
                                                                                Spain
—     Infringement of Article 7(1)(c) of Council Regulation No
      40/94 in respect of goods classed as ‘dolls to play with’:
      the contested judgment does not take sufficient account                                         (Case C-500/01)
      of the difference between indications of origin (valid
      marks) and those of a purely informative nature (indi-
      cations falling within Article 7(1)(c)). The Court of                                            (2002/C 56/17)
      First Instance erred in law by reducing the scope of
      Article 7(1)(c) to the descriptive indication of the product
      itself (‘that the sign in question is descriptive of the dolls
      themselves’) and by excluding from the scope of that
      provision the description of the dolls’ characteristics             An action against the Kingdom of Spain was brought before the
      (‘descriptive of that which the dolls represent’). In               Court of Justice of the European Communities on 21 December
      addition, the Court of First Instance erred in law in               2001 by the Commission of the European Communities,
      finding that ‘the persons targeted, when making their               represented by Stefan Rating, of its Legal Service, with an
      purchasing decision, [must] conflate the toy and what it            address for service in Luxembourg at the office of Luis Escobar
      represents’; this requires a certain causality between the          Guerrero, of its Legal Service, Wagner Centre, Kirchberg.
      descriptive indication and the purchasing decision which
      has nothing to do with Article 7(1)(c). The Court of First
      Instance disregarded the fact that numerous descriptive
      indications describe not the kind of product but what it            The applicant claims that the Court should:
      represents or its content; that is the general position as
      regards toys, but it also applies in respect of books and
      magazines, video games, etc.                                        (1) declare that, by failing to comply with the provisions of
                                                                                Article 4c of Directive 90/388/EEC (1), as amended by
                                                                                Directive 96/19/EC (2), the Kingdom of Spain has failed
—     Infringement of Article 7(1)(c) of Council Regulation No                   to fulfil its obligations under Article 249 EC;
      40/94, in so far as concerns ‘accessories for dolls in the
      form of playthings’: the Court of First Instance misapplied
      the principle of trade-mark law — in itself correct — that          (2) order the Kingdom of Spain to pay the costs.
      the protectability of a mark is to be considered by
      reference to the goods in respect of which the application
      is made, inasmuch as it wrongly analysed the goods
      ‘accessories for dolls in the form of playthings’ separately
      from the rest of the classification. The indication ‘access-        Pleas in law and main arguments
      ories for dolls in the form of playthings’ is so manifestly
      related to the principal goods — ‘dolls to play with’ —
      that it must inevitably share the same fate, in terms of
      trade-mark law, as that meted out to those principal                The Commission considers that it will not be possible, at least
      goods.                                                              as regards Telefónica, for subscription charges to be aligned
                                                                          with costs prior to the beginning of 2003. This results from
                                                                          the practical limitations imposed by the Spanish system of
—     Infringement of Article 12 of Council Regulation No                 maximum price limits, which prevent Telefónica from making
      40/94 and of the judgment in BMW v Deenik (2), in so                more rapid changes to the amount of the subscription charge.
      far as concerns ‘accessories for dolls in the form of               The Commission further maintains that it can hardly be argued
      playthings’.                                                        that a re-balancing spread over a period of some seven years
                                                                          meets the criterion of maximum possible rapidity laid down
—     Infringement of Article 7(1)(b) of Council Regulation No            by the directive, and that the re-balancing has proceeded in
      40/94: since, in the present case, the refusal pursuant to          parallel with the opening-up to competition of the Spanish
      Article 7(1)(b) on the ground of insufficient distinctive           telecommunications market.
      character was based on the same arguments as those
      applying in respect of Article 7(1)(c), it is logical that the
      outcome of the present case can only be uniform, i.e. the
      opposite of that contained in the contested judgment.               (1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
                                                                              tition in the markets for telecommunications services (OJ L 192
                                                                              of 24.7.1990, p. 10).
                                                                          (2) Commission Directive 96/19/EC of 13 March 1996 amending
(1) Not yet published in the European Court Reports.                          Directive 90/388/EEC with regard to the implementation of
(2) Judgment of the Court of Justice of 23 February 1999 in Case              full competition in telecommunications markets (OJ L 74 of
    C-63/1997, [1999] ECR I-925.                                              13.3.1996, p. 13).


title: Case C-391/12: Judgment of the Court (Third Chamber) of 17 October 2013 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — RLvS Verlagsgesellschaft mbH v Stuttgarter Wochenblatt GmbH (Directive 2005/29/EC — Unfair commercial practices — Scope ratione personae — Misleading omissions in advertorials — Legislation of a Member State prohibiting any publication for remuneration not identified by the term ‘advertisement’ ( ‘Anzeige’ ) — Complete harmonisation — Stricter measures — Freedom of the press)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/18

         Judgment of the Court (Third Chamber) of 17 October 2013 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — RLvS Verlagsgesellschaft mbH v Stuttgarter Wochenblatt GmbH
   (Case C-391/12) (1)

   (Directive 2005/29/EC - Unfair commercial practices - Scope ratione personae - Misleading omissions in advertorials - Legislation of a Member State prohibiting any publication for remuneration not identified by the term ‘advertisement’ (‘Anzeige’) - Complete harmonisation - Stricter measures - Freedom of the press)
   2013/C 367/31
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: RLvS Verlagsgesellschaft mbH

      Defendant: Stuttgarter Wochenblatt GmbH

      Re:

   Request for a preliminary ruling — Bundesgerichtshof — Interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22), and in particular Articles 3(5), 4 and 7(2) thereof and point 11 of Annex I thereto — Misleading omissions in editorial-style advertising — Legislation of a Member State prohibiting a publication for remuneration which does not mention that it is an ‘advertisement’ (‘Anzeige’)

      Operative part of the judgment

   In circumstances such as those of the main proceedings, Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘the Unfair Commercial Practices Directive’) may not be relied on as against newspaper publishers, with the result that, in those circumstances, that directive must be interpreted as not precluding the application of a national provision under which those publishers are required to identify specifically, in this case through the use of the term ‘advertisement’ (‘Anzeige’), any publication in their periodicals for which they receive remuneration, unless it is already evident from the arrangement and layout of the publication that it is an advertisement.

      (1)  OJ C 343, 10.11.2012.


title: Judgment of the Court (First Chamber) of 26 May 2005 in Case C-409/03: Reference for a preliminary ruling from the Bundesfinanzhof in Société d'exportation de produits agricoles SA (SEPA) v Hauptzollamt Hamburg-Jonas (Export refunds — Beef — Special emergency slaughtering — Regulation (EEC) No 3665/87 — Article 13 — Sound and fair marketable quality — Marketability in normal conditions)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/10

      JUDGMENT OF THE COURT

   (First Chamber)
   of 26 May 2005
   in Case C-409/03: Reference for a preliminary ruling from the Bundesfinanzhof in Société d'exportation de produits agricoles SA (SEPA) v Hauptzollamt Hamburg-Jonas (1)

   (Export refunds - Beef - Special emergency slaughtering - Regulation (EEC) No 3665/87 - Article 13 - Sound and fair marketable quality - Marketability in normal conditions)
   (2005/C 182/18)
   Language of the case: German
   In Case C-409/03: reference for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany), made by decision of 15 July 2003, received at the Court on 1 October 2003, in the proceedings between Société d'exportation de produits agricoles SA (SEPA) and Hauptzollamt Hamburg-Jonas — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, N. Colneric, K. Schiemann and E. Juhász (Rapporteur), Judges; P. Léger, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 26 May 2005, in which it ruled:
   Article 13 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products must be interpreted as meaning that meat fulfilling the hygiene criteria, the marketing of which for human consumption within the European Community is restricted by Community rules to the local market because it comes from animals which have undergone special emergency slaughtering, cannot be regarded as being of ‘sound and fair marketable quality’, as required for the grant of export refunds.

      (1)  OJ C 275 of 15.11.2003.


title: Case T-390/14: Action brought on 3 June 2014 — Établissement Amra/OHIM (KJ KANGOO JUMPS XR)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/64

         Action brought on 3 June 2014 — Établissement Amra/OHIM
   (KJ KANGOO JUMPS XR)
   (Case T-390/14)
   2014/C 315/108
   Language of the case: English

      Parties

      Applicant: Établissement Amra (Vaduz, Liechtenstein) (represented by: S. Rizzo, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 March 2014 in Case R 1511/2013-2 in its entirety;

               —

               Order the defendant to pay the costs

      Pleas in law and main arguments

      Community trade mark concerned: The position mark, consisting of the lower spring portion of a sporting and exercising device and containing the word elements ‘KJ KANGOO JUMPS XR’ for goods in Class 28 — Community trade mark application No 1 1 7 26  494

      Decision of the Examiner: The application was rejected

      Decision of the Board of Appeal: The appeal was dismissed

      Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009.


title: Case T-133/07: Action brought on 18 April 2007 — Mitsubishi Electric v Commission

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/37

         Action brought on 18 April 2007 — Mitsubishi Electric v Commission
   (Case T-133/07)
   (2007/C 140/62)
   Language of the case: English
   Parties

      Applicant: Mitsubishi Electric Corp. (Tokyo, Japan) (represented by: R. Denton, Solicitor and K. Haegeman, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant respectfully requests:

               —

               the annulment of the decision, in particular Articles 1 to 4 thereof, to the extent that it applies to Melco and to TMT&D for the period which Melco shares joint and several liability with Toshiba for the activities of TMT&D; or

               —

               the annulment of Article 2(g) of the decision and Article 2(h) insofar as it pertains to Melco; or

               —

               the modification of Article 2 of the decision as it pertains to Melco, so as to annul or in the alternative substantially reduce the fine imposed on Melco therein; and, in any event;

               —

               an order that the Commission pay its own costs and Melco's costs in connection with these proceedings.

         Pleas in law and main arguments
   The applicant, Mitsubishi Electric Corporation (hereinafter ‘Melco’) lodged an action for annulment, under Articles 230 and 229 EC against Commission decision of 24 January 2007 (Case COMP/F/38.899 — Gas insulated switchgear — C(2006) 6762 final), on the basis of which the Commission found the applicant, among other undertakings, liable to have infringed Article 81(1) EC and from 1 January 1994 also Article 53 EEA in the gas insulated switchgear sector (hereinafter ‘GIS’), through a set of agreements and concerted practices consisting of (a) market sharing, (b) the allocation of quotas and maintenance of the respective market shares, (c) the allocation of individual GIS projects (bid-rigging) to designated producers and the manipulation of the bidding procedure for those projects, (d) price fixing, (e) agreements to cease licence agreements with non-cartel members and (f) exchanges of sensitive market information. In the alternative, the applicant applies for a cancellation or reduction of the fine imposed.
   The grounds relied upon by Melco in its application are the following:
   The Commission has allegedly failed to prove to the requisite standard that the applicant has infringed Article 81 EC by participating in a cartel that had as its object or effect the restriction of competition in the EEA.
   The applicant claims that the Commission has failed to establish the existence of an agreement to which Melco was a party which infringed Article 81 EC.
   The applicant further submits that the Commission has committed an error of assessment in disregarding the technical and economic evidence explaining Melco's lack of presence on, and proving its difficulty entering, the European market.
   The applicant contends that the Commission has infringed the rules of evidence in unjustifiably reversing the burden of proof and has violated the principle of the presumption of innocence.
   Moreover, the Commission has breached, according to the applicant, the principles of equal treatment and proportionality on various accounts: in calculating the starting point of the fine imposed on Melco on the basis of its 2001, not 2003, turnover; in calculating the multiplier applicable to Melco and in erroneously defining the worldwide GIS market and Melco's share of it. Furthermore, the Commission has breached the principle of proportionality, according to the applicant, in assessing the fine on Melco for its involvement in the GQ (1) agreement in the same way as it did for the European producers involved in both GQ and EQ (2) agreements.
   The applicant claims that the Commission has infringed the duty to state reasons in finding that Melco's fine should be calculated on the basis of its 2001 turnover and that Melco has 15-20 % of worldwide GIS turnover.
   Moreover, the Commission has allegedly breached the principle of sound administration in estimating the global GIS market value.
   The applicant claims that the Commission has erred in failing to take into account economic and technical evidence when assessing the impact of Melco's behaviour and in calculating Melco's fine. The Commission also erred, according to the applicant, in determining the duration of the alleged cartel.
   Furthermore, the applicant sustains that the Commission has breached the applicant's rights of defence and right to a fair hearing in failing to provide Melco with crucial exculpatory and inculpatory evidence contained in its fine. Finally, the Commission allegedly failed to put to Melco during the administrative procedure its conclusions concerning the theory of compensation, thereby infringing the rights of defence.

      (1)  ‘G’ stands for ‘gear’ and ‘Q’ stands for ‘quota’.

      (2)  ‘E’ stands for ‘European’ and ‘Q’ for ‘quota’. The EQ Agreement is otherwise referred to in the contested decision as ‘E-Group Operation Agreement for GQ-Agreement’.


title: Case F-133/11: Judgment of the Civil Service Tribunal (1 st Chamber) of 12 December 2013 — BV v Commission (Civil service — Appointment — Candidates entered on reserve lists for competitions the notice for which was published prior to the entry into force of the new Staff Regulations — Classification in grade — Principle of equal treatment — Discrimination on grounds of age — Freedom of movement for persons)

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/27

         Judgment of the Civil Service Tribunal (1st Chamber) of 12 December 2013 — BV v Commission
   (Case F-133/11) (1)

   (Civil service - Appointment - Candidates entered on reserve lists for competitions the notice for which was published prior to the entry into force of the new Staff Regulations - Classification in grade - Principle of equal treatment - Discrimination on grounds of age - Freedom of movement for persons)
   2014/C 39/48
   Language of the case: German

      Parties

      Applicant: BV (Berlin, Germany) (represented by: P. Goergen, lawyer)

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

      Intervener: Council of the European Union (represented by: J. Herrmann and A.F. Jensen, Agents)

      Re:

   Annulment of the Commission’s decision classifying the applicant — entered on the reserve list for competition EPSO/A/17/04, the notice for which was published prior to the entry into force of the new Staff Regulations — at Grade AD 6, step 2, pursuant to less advantageous provisions.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders BV to bear his own costs and to pay the costs incurred by the European Commission;

               3.

               Orders the Council of the European Union to bear its own costs.

      (1)  OJ C 133, 5.5.2013, p. 29.


title: Case C-282/02: Action brought on 31 July 2002 by the Commission of the European Communities against Ireland

text:
C 261/2                EN                    Official Journal of the European Communities                                  26.10.2002
3.     For each case assigned to a large Chamber, namely the            Sixth Chamber
Fifth and Sixth Chambers, to each of which seven judges are
attached, the five judges who are to sit shall be determined on         (President: Judge Puissochet)
the basis of a list drawn up for the judicial year comprising all       Judge Gulmann, Judge Macken, Judge da Cunha Rodrigues,
the judges of the Chamber, except the President, in the                 Judge Schintgen, Judge Skouris and Judge Colneric.
following order:
(a)   the judges of the small Chamber to which four judges are          Appointment of the First Advocate General
      attached, in order of seniority;
                                                                        At its meeting held on 1 October 2002, in accordance with
(b)   the judges of the other small Chamber, in the same order.         Article 10(1) of the Rules of Procedure, the Court of Justice
                                                                        appointed Advocate General J. Mischo as First Advocate
                                                                        General for a period of one year starting on 7 October 2002.
For each case, the large Chamber shall be composed of:
—     the President,
—     the Judge-Rapporteur,                                             Reference for a preliminary ruling by the Verwaltungsge-
                                                                        richt Stuttgart by order of that Court of 11 July 2002 in
—     three judges appointed in order from the list; the starting-       the case of Engin Ayaz against Land Baden-Württemberg
      point on that list shall be moved down one name at each
      general meeting.                                                                          (Case C-275/02)
                                                                                (2002/C 261/02)
Any judges prevented from sitting shall be replaced in order
from the list. However, should the President of the large
Chamber be prevented from sitting, he must be replaced if
possible by the President of the small Chamber.                         Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Verwaltungsgericht
                                                                        Stuttgart (Stuttgart Administrative Court) of 11 July 2002,
If the Court, or a Chamber, deems it appropriate to hear and            received at the Court Registry on 26 July 2002, for a
determine two or more cases together (whether or not they               preliminary ruling in the case of Engin Ayaz against Land
are formally joined), the composition of the bench shall be             Baden-Württemberg on the following question:
that determined for the first of the cases discussed at a general
meeting.                                                                Is a stepson aged under 21 years of a Turkish worker who is
                                                                        duly registered as belonging to the labour force of a Member
                                                                        State a member of the family within the meaning of the first
4.     For the period ending on 6 October 2003, the lists               paragraph of Article 7 of Decision No 1/80 of the Association
referred to above are as follows:                                       Council of 19 September 1980 on the development of the
                                                                        Association?
Third Chamber
(President: Judge Puissochet)
Judge Gulmann, Judge Macken and Judge de Cunha Rodrigues.
                                                                        Action brought on 31 July 2002 by the Commission of
Fourth Chamber                                                                   the European Communities against Ireland
(President: Judge Timmermans)                                                                   (Case C-282/02)
Judge Edward, Judge La Pergola and Judge von Bahr.                                              (2002/C 261/03)
Fifth Chamber
                                                                        An action against Ireland was brought before the Court of
(President: Judge Wathelet)                                             Justice of the European Communities on 31 July 2002 by the
                                                                        Commission of the European Communities, represented by
Judge Edward, Judge La Pergola, Judge von Bahr, Judge                   Michael Shotter, acting as agent, with an address for service in
Timmermans, Judge Jann and Judge Rosas.                                 Luxembourg.
 ---pagebreak--- 26.10.2002             EN                      Official Journal of the European Communities                                        C 261/3
The Applicant claims that the Court should:                               Reference for a preliminary ruling by the Bundesarbeits-
                                                                          gericht by order of that Court of 21 March 2002 in the
                                                                               case of the Land of Brandenburg against Ursula Sass
—     declare that, in failing to take all the measures necessary                                 (Case C-284/02)
      to ensure a correct transposition and application of
      Council Directive 76/464/EEC (1) of 4 May 1976 on                                           (2002/C 261/04)
      pollution caused by certain dangerous substances dis-
      charged into the aquatic environment of the Community,
      Ireland has failed to comply with Directive 76/464/EEC              Reference has been made to the Court of Justice of the
      and in particular Articles 7 and 9 thereof and with its             European Communities by order of the Bundesarbeitsgericht
      obligations under the EC Treaty;                                    of 21 March 2002, received at the Court Registry on 2 August
                                                                          2002, for a preliminary ruling in the case of the Land of
                                                                          Brandenburg against Ursula Sass on the following question:
—     order Ireland to pay the costs.
                                                                          Do Article 119 of the EC Treaty (now Article 141 EC) and
                                                                          Directive 76/207/EEC ( 1) prohibit, in a provision of a collective
                                                                          agreement under which periods during which an employment
                                                                          relationship is in abeyance do not count towards the qualifying
                                                                          period, the exclusion of the period during which the employ-
                                                                          ment relationship was in abeyance because the employee
                                                                          concerned, on the expiry of the eligible eight-week period of
                                                                          protection pursuant to Paragraph 6 of the Mutterschutzgesetz
                                                                          (Maternity Protection Law), claimed maternity leave pursuant
Pleas in law and main arguments                                           to Paragraph 244(1) of the Labour Code of the German
                                                                          Democratic Republic (AGB-DDR) of 16 June 1977 (GBl. I,
                                                                          p. 185) until the end of the 20th week after confinement?
                                                                          (1 ) OJ L 39, p. 40.
The Commission submits that, contrary to Articles 7 and 9 of
the Directive, Ireland has generally failed to reduce pollution
caused by phosphorus where this was already evident at the
time of adoption of the Directive and to prevent its emergence
and increase elsewhere. Furthermore, in the Commission’s
view, Ireland’s quality objectives for phosphorus, introduced             Reference for a preliminary ruling by the Oberlandesge-
in 1998, and Irish measures with regard to authorisation of               richt München by order of that Court of 25 July 2002 in
discharges do not comply with the requirements of Articles 7              the case of A.M.O.K. Verlags GmbH against A & R
and 9 of the Directive. In addition, the Commission considers                                   Gastronomie GmbH
that Ireland’s adopted programmes for the reduction of
phosphorous pollution suffer from significant shortcomings.                                       (Case C-289/02)
                                                                                (2002/C 261/05)
                                                                          Reference has been made to the Court of Justice of the
The Commission also submits that Ireland has failed to finalise           European Communities by order of the Oberlandesgericht
and adequately implement pollution reduction programmes                   München (Munich Higher Regional Court) of 25 July 2002,
for List II substances other than phosphorus and/or to                    received at the Court Registry on 9 August 2002, for a
communicate programme summary results for these sub-                      preliminary ruling in the case of A.M.O.K. Verlags GmbH
stances.                                                                  against A & R Gastronomie GmbH on the following question:
                                                                          Are Articles 49 and 12 EC to be interpreted as precluding a
                                                                          decision of a national court in accordance with which, in a
                                                                          Member State (domestic territory), the maximum amount of a
( 1) OJ L 129, 18.5.1976, p. 23.                                          claim for reimbursement of the costs of the services of a lawyer
                                                                          of a different Member State in domestic proceedings and of an
                                                                          Einvernehmensanwalt (domestic lawyer acting in conjunction
                                                                          with the foreign lawyer) is the sum of the costs including VAT
                                                                          which would have been incurred in the case of representation
                                                                          by a domestic lawyer?


title: Case T-242/15: Action brought on 18 May 2015 — ACDA and Others v Commission

text:
               20.7.2015

               EN

               Official Journal of the European Union

               C 236/45

         Action brought on 18 May 2015 — ACDA and Others v Commission
   (Case T-242/15)
   (2015/C 236/61)
   Language of the case: French

      Parties

      Applicants: Automobile Club des Avocats — ACDA (Paris, France); Organisation des Transporteurs Routiers Européens — OTRE (Bordeaux, France); Fédération française des motards en colère — FFMC (Paris); Fédération française de motocyclisme (Paris); and Union nationale des automobile clubs (Paris) (represented by: M. Lesage, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare their action admissible;

               —

               annul Commission Notice SA.38271 of 28 October 2014 on State Aid SA.2014/N 38271, linked to the Plan for Investment in Motorways in France, published on 20 February 2015 in the Official Journal of the European Union (OJEU).

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the French motorway investment plan (‘MIP’) would have the effect of granting a benefit specifically to concession-holding companies operating motorways, with the assistance of public funds.

               2.

               Second plea in law, alleging that the MIP would affect competition.

               3.

               Third plea in law, alleging overcompensation for the expenditure incurred by concession-holding companies operating motorways, which is inconsistent with the task of general economic interest with which they are entrusted.

               4.

               Fourth plea in law, alleging a barrier to trade between the Member States.

               5.

               Fifth plea in law, alleging that the amendments made to the MIP without a new notification having been made to the Commission since Notice SA.38271 are unlawful.


title: Case C-307/05: Judgment of the Court (Second Chamber) of 13 September 2007 (reference for a preliminary ruling from the Juzgado de lo Social de San Sebastián, Spain) — Yolanda Del Cerro Alonso v Osakidetsa (Servicio Vasco de Salud) (Directive 1999/70/EC — Clause 4 of the framework agreement on fixed-term work — Principle of non-discrimination — Concept of employment conditions — Length-of-service allowance — Inclusion — Objective grounds justifying a difference in treatment — None)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/7

         Judgment of the Court (Second Chamber) of 13 September 2007 (reference for a preliminary ruling from the Juzgado de lo Social de San Sebastián, Spain) — Yolanda Del Cerro Alonso v Osakidetsa (Servicio Vasco de Salud)
   (Case C-307/05) (1)

   (Directive 1999/70/EC - Clause 4 of the framework agreement on fixed-term work - Principle of non-discrimination - Concept of ‘employment conditions’ - Length-of-service allowance - Inclusion - Objective grounds justifying a difference in treatment - None)
   (2007/C 269/14)
   Language of the case: Spanish
   Referring court
   Juzgado de lo Social de San Sebastian
   Parties to the main proceedings

      Applicant: Yolanda Del Cerro Alonso

      Defendant: Osakidetsa (Servicio Vasco de Salud)
   Re:
   Reference for a preliminary ruling — Juzgado de lo Social San Sebastian — Interpretation of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Whether working conditions include financial conditions — Length of service allowance — Non-payment due to agreements between the staff trade union and the administration — Adequate and objective reasons
   Operative part of the judgment

               1.

               The concept of ‘employment conditions’ referred to in clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, and which is set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as meaning that it can act as a basis for a claim such as that at issue in the main proceedings, which seeks the grant to a fixed-term worker of a length-of-service allowance which is reserved under national law solely to permanent staff.

               2.

               Clause 4(1) of the framework agreement must be interpreted as meaning that it precludes the introduction of a difference in treatment between fixed-term workers and permanent workers which is justified solely on the basis that it is provided for by a provision of statute or secondary legislation of a Member State or by a collective agreement concluded between the staff union representatives and the relevant employer.

      (1)  OJ C 257, 15.12.2005.


title: Case T-256/06: Action brought on 18 September 2006 — Neoperl Servisys v OHIM (HONEYCOMB)

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/29

         Action brought on 18 September 2006 — Neoperl Servisys v OHIM (HONEYCOMB)
   (Case T-256/06)
   (2006/C 261/55)
   Language in which the application was lodged: German
   Parties

      Applicant: Neoperl Servisys AG (Reinach, Switzerland) (represented by: H. Börjes-Pestalozza, lawyer)

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

               —

               annul contested decision R1388/2005-4 and order the Office for Harmonisation in the Internal Market to publish Community trade mark application No 2 906 139 for the purpose of its registration;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘HONEYCOMB’ for goods in Class 11 — Application No 2 906 139.

      Decision of the Examiner: Refusal of the application.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), because the sign applied for was assessed incorrectly both as a whole and in relation to its individual elements and the assessment of the relevant public was made subject to a clearly exaggerated perception of the public.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Judgment of the Court of First Instance of 2 June 2005 in Case T-177/03 Andreas Strohm v Commission of the European Communities (Officials — Refusal of promotion to Grade A4 — Consideration of comparative merits — Duty to state grounds — Additional statement of grounds — Action for annulment and compensation — Admissibility)

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/24

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 2 June 2005
   in Case T-177/03 Andreas Strohm v Commission of the European Communities (1)

   (Officials - Refusal of promotion to Grade A4 - Consideration of comparative merits - Duty to state grounds - Additional statement of grounds - Action for annulment and compensation - Admissibility)
   (2005/C 193/39)
   Language of the case: German
   In Case T-177/03: Andreas Strohm, an official of the Commission of the European Communities, residing in Brussels (Belgium), represented by C. Illig, lawyer, against Commission of the European Communities (Agents: C. Berardis-Kayser, assisted by B. Wägenbaur, lawyer, with an address for service in Luxembourg) — application for annulment of the Commission's decision dated 14 August 2002, not to promote the applicant to Grade A4 in the 2002 procedure, and for compensation — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges; C. Kristensen, Administrator, for the Registrar, gave a judgment on 2 June 2005, in which it:

               1.

               Annuls the Commission's decision, dated 14 August 2002, not to promote the applicant to Grade A4 in the 2002 promotion procedure;

               2.

               Dismisses the application as inadmissible in so far as it seeks compensation for the applicant;

               3.

               Orders the defendant to bear all the costs.

      (1)  OJ C 200 of 20.8.2003.


title: Case C-684/13: Request for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 23 December 2013 — Johannes Demmer v Fødevareministeriets Klagecenter

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/14

         Request for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 23 December 2013 — Johannes Demmer v Fødevareministeriets Klagecenter
   (Case C-684/13)
   2014/C 85/27
   Language of the case: Danish

      Referring court

   Vestre Landsret

      Parties to the main proceedings

      Applicant: Johannes Demmer

      Defendant: Fødevareministeriets Klagecenter

      Questions referred

               1.

               Must the requirement that an agricultural area not be used for ‘non-agricultural activities’ within the meaning of Article 44(2) of Regulation No 1782/2003 (1) and the requirement that an agricultural area be used for ‘an agricultural activity or … predominantly used for agricultural activities’ within the meaning of Article 34(2)(a) of Regulation No 73/2009 (2) be interpreted as meaning that it is a condition for aid that the primary purpose of an area’s use be agricultural?

                           (a)

                           If so, the Court of Justice is requested to specify what parameters must be taken into account in deciding what purpose of use is the ‘primary’ use where an area is used for several different purposes at the same time.

                           (b)

                           If so, the Court of Justice is further requested to state whether, where applicable, that means that safety areas surrounding runways and taxi and stop-ways at airports, which are part of the airport and are subject to special rules and restrictions, such those at issue, relating to the use of the land, but at the same time are also used to harvest grass for the production of feed pellets, are by their nature and use eligible for aid under the above provisions.

               2.

               Must the requirement that the agricultural land form part of the farmer’s ‘holding’ within the meaning of Article 44(2) of Regulation No 1782/2003 and Article 34(2)(a) of Regulation No 73/2009 be interpreted as meaning that safety areas surrounding runways and taxi and stop-ways at airports, which are part of the airport and are subject to special rules and restrictions, such those at issue, relating to the use of the land, but at the same time are also used to harvest grass for the production of feed pellets, are eligible for aid under the above provisions?

               3.

               If the answer to Question 1(b) and/or Question 2 is in the negative, will there then be, because the parcels of land in addition to being used to cultivate permanent pasture for the production of feed pellets are also safety areas surrounding runways and taxi and stop-ways,

                           (a)

                           an error which could reasonably have been detected by the farmer within the meaning of Article 137 of Regulation No 73/2009 where payment entitlements for the areas are nevertheless allocated?

                           (b)

                           an error which could reasonably have been detected by the farmer within the meaning of Article 73(4) of Commission implementing Regulation No 796/2004, (3) where aid for the areas is nevertheless paid?

                           (c)

                           an undue payment in relation to which the beneficiary cannot be regarded as having acted in good faith within the meaning of Article 73(5) of Commission implementing Regulation No 796/2004, where aid for the areas is nevertheless paid?

               4.

               What time is material in assessing whether

                           (a)

                           there is an error which could reasonably have been detected by the farmer within the meaning of Article 137 of Regulation No 73/2009,

                           (b)

                           there is an error which could reasonably have been detected by the farmer within the meaning of Article 73(4) of Commission implementing Regulation No 796/2004,

                           (c)

                           the beneficiary can be regarded as having acted in good faith within the meaning of Article 73(5) of Commission implementing Regulation No 796/2004?

               5.

               Must the assessment referred to in Question 4(a) to (c) be carried out in respect of each individual aid year or for the payments as a whole?

      (1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

      (2)  Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16).

      (3)  Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18).