title: Action brought on 2 July 1997 by Carmen Jiménez against the Office for Harmonization in the Internal Market (trade marks and designs) (Case T-200/97)

text:
10. 1. 98             EN                 Official Journal of the European Communities                                      C 7/17
precisely in order to avoid the need for any retroactivity              render the grant of sick leave prescribed for the
that that Article provides for six-monthly interim                      purposes of undergoing treatment in the form of a
adjustments, with the possibility of being able to make                 thermal cure subject to further conditions for which
additional interim adjustments in the event of an                       no provision is made in Article 59 of the Staff
appreciable variation in the cost of living. The                        Regulations. On the basis of the presumption that a
Commission's failure to make six-monthly adjustments to                 medical certificate is to be presumed to be regular, and
the weightings during more than two years cannot                        of the principle of its credibility, that provision
therefore justify, a posteriori, the recovery of a so-called            automatically gives rise to entitlement to sick leave for
overpayment of remuneration.                                            the whole of the period covered,
(1) OJ L 83, 2. 4. 1996, pp. 1, 4 and 7.                            Ð breach of the principles of legal certainty, of the
                                                                        protection of legitimate expectations, of respect for
                                                                        acquired rights and of non-retroactivity, and
                                                                        infringement of the second paragraph of Article 25 of
                                                                        the Staff Regulations. The applicant considers in that
                                                                        regard that, although the appointing authority
Action brought on 30 June 1997 by Donato Continolo                      referred, in its decision rejecting his complaint, to the
   against the Commission of the European Communities                   criteria for granting sick leave covering the whole of
                        (Case T-196/97)                                 the period when he was absent for the purposes of
                                                                        undergoing medical treatment in the form of a thermal
                           (98/C 7/53)
                                                                        cure, it failed to set out those criteria in a clear
                                                                        manner or to mention the legal basis justifying their
                (Language of the case: French)
                                                                        adoption. Such a statement of reasons is not relevant.
                                                                        Moreover, contrary to the statement made by the
An action against the Commission of the European
                                                                        appointing authority in its reply rejecting his
Communities was brought before the Court of First
                                                                        complaint, the criterion of serious illness is not merely
Instance of the European Communities on 30 June 1997
                                                                        one of the criteria applied for the purposes of granting
by Donato Continolo, residing at Taino (Italy),
                                                                        additional leave; it constitutes the only criterion
represented by Jean-NoeÈl Louis, Thierry Demaseure and
                                                                        currently applied. He considers that, if other criteria
Ariane Tornel, of the Brussels Bar, with an address for
                                                                        had been applied, the appointing authority should
service in Luxembourg at the offices of Fiduciaire Myson
                                                                        have brought them to the attention of the staff in a
SARL, 30, rue de Cessange.
                                                                        clear and exhaustive manner, and should have referred
                                                                        to the provisions establishing them.
The applicant claims that the Court should:
Ð annul the Commission's decision refusing to grant the             Furthermore, although the applicant underwent his
    applicant sick leave in respect of the whole of the             treatment by way of thermal cure in May and September
    period prescribed by his attending medical practitioner         1995, it was not until 1 February 1996 that the Heads of
    for the purposes of undergoing medical treatment in             Administration confirmed the criterion proposed by the
    the form of a thermal cure,                                     Interinstitutional Medical Board for the grant of the
                                                                    second part of the special leave, namely, that it should be
Ð order the defendant to pay the costs.                             granted only in the case of a thermal cure connected with
                                                                    a sickness the expenses in relation to which are
Pleas in law and main arguments adduced in support:                 reimbursable at the rate of 100 %.
The present action concerns the refusal to grant the
applicant sick leave for the whole of his periods of
absence in May and September 1995, during which he
underwent medical treatment in the form of a thermal
cure, as prescribed by his attending medical practitioner           Action brought on 2 July 1997 by Carmen JimeÂnez
and as deemed to be necessary by the medical officer of             against the Office for Harmonization in the Internal
the Joint Sickness Insurance Scheme.                                              Market (trade marks and designs)
                                                                                (Case T-200/97)
In support of his claims, he advances, in particular, the
following pleas:                                                                              (98/C 7/54)
Ð the illegality of conclusion No 207/94 of the Heads of                           (Language of the case: French)
    Administration, of the Commission's internal Directive
    No 8927 of 28 December 1994 and of the conclusion               An action against the Office for Harmonization in the
    of the Heads of Administration of 1 February 1996,              Internal Market (trade marks and designs) was brought
    inasmuch as, by authorizing the administration to               before the Court of First Instance of the European
    leave a medical certificate out of account,                     Communities on 2 July 1997 by Carmen JimeÂnez, residing
    alternatively, by providing that sick leave may be              in Luxembourg, represented by Georges Vandersanden, of
    granted only if the medical treatment is connected              the Brussels Bar, with an address for service in
    with a sickness the expenses in relation to which are           Luxembourg at the offices of the Fiduciaire Myson SARL,
    reimbursable at the rate of 100 %, those documents              30, rue de Cessange.
 ---pagebreak--- C 7/18              EN                  Official Journal of the European Communities                                  10. 1. 98
The applicant claims that the Court should:                        The applicant claims that the Court should:
Ð order the Office to produce the working papers of the            Ð rule that Article 8 of Regulation (EEC/Euratom,
    Selection Board in competition AT/C, in particular the              ECSC) No 3947/92, adopted by the Council on
    assessment forms completed by the members of the                    21 December 1992, is applicable to the applicant,
    Selection Board and the examiners after the interview
    on 27 September 1996, together with the Board's final
    report,                                                        Ð consequently, annul the Commission's decision of
                                                                        21 October 1996 rejecting the applicant's request to
                                                                        be regraded pursuant to Article 32 (3) of the Staff
Ð annul the Selection Board's decision not to include the               Regulations,
    applicant on the list of suitable candidates drawn up
    in the context of that competition,
                                                                   Ð annul, in so far as may be necessary, the decision
                                                                        adopted by the Commission on 2 April 1997 expressly
Ð order the Office to pay all the costs.
                                                                        rejecting the applicant's complaint,
Pleas in law and main arguments adduced in support:
                                                                   Ð order the defendant to pay the costs.
The applicant, a grade C 3 official at the Commission,
challenges the Office's decision of 30 October 1996 not to         Pleas in law and main arguments adduced in support:
include her on the list of suitable members of the
temporary staff in category C for performing office and            The applicant, a former member of the temporary staff
administrative duties, in the context of competition AT/C.         classified in grade A 6, step 4, was appointed an official of
In that respect, she puts forward the following pleas in           the Court of Auditors on 1 July 1982 and classified in
law:                                                               grade A 6, step 3, in accordance with the rules applying at
                                                                   that time. On 1 September 1984 he was transferred to the
Ð first plea: insufficient reasons are given for the               Commission.
    decision,
                                                                   In consequence of the judgment delivered by the Court of
Ð second plea: the competition procedure is vitiated by            First Instance on 6 March 1996 in Case T-93/94 Becker v.
    the fact that the member of the Selection Board                Court of Auditors (1), he requested the appointing
    designated by the Staff Committee did not have the             authority of the Commission to review his classification in
    right to vote,                                                 step. In the aforesaid judgment, the Court of First Instance
                                                                   ruled that Article 32 of the Staff Regulations of officials,
Ð third plea: the decision was adopted in breach of the            as amended by Council Regulation (EEC, Euratom, ECSC)
    principle of non-discrimination,                               No 3947/92 of 21 December 1992 (2), should also apply
                                                                   to members of the temporary staff appointed as officials
Ð fourth plea: the Selection Board committed a manifest            prior to the entry into force of that amendment. The
    error of assessment by refusing to acknowledge that            Commission rejected the request on the ground that it was
    the applicant is capable of performing the tasks               out of time, maintaining that it should have been
    concerned (category C office and administrative                submitted within three months of publication of the
    duties), even though she has been performing similar           amendment to the Staff Regulations.
    tasks in the European Community institutions for
    more than 10 years.                                            The applicant considers that the contested decision
                                                                   disregards Article 90 (1) of the Staff Regulations,
                                                                   inasmuch as that provision lays down no time limit for the
                                                                   submission of a request. He also maintains that the fact
                                                                   that he was appointed an official prior to the entry into
                                                                   force of the amendment to Article 32 of the Staff
Action brought on 4 July 1997 by Louis Koopman against             Regulations cannot preclude the application of the new
       the Commission of the European Communities                  provision in his favour, since any other interpretation
                                                                   would be contrary to the principle of equal treatment, as
                      (Case T-202/97)
                                                                   the Court of First Instance declared in the aforesaid
                         (98/C 7/55)                               judgment. Lastly, he maintains that, by failing to apply the
                                                                   amended provision automatically to him, and by then
               (Language of the case: French)                      claiming that his request for its application in his favour
                                                                   was out of time, the Commission completely failed to
An action against the Commission of the European                   fulfil its duty to have regard for the welfare and interests
Communities was brought before the Court of First                  of officials.
Instance of the European Communities on 4 July 1997 by
Louis Koopman, residing at Keerbergen (Belgium),                   (1) [1996] ECR-SC 91.
represented by Nicolas LhoeÈst, of the Brussels Bar, with an       (2) OJ L 404, 31. 12. 1992, p. 1.
address for service in Luxembourg at the offices of
Fiduciaire Myson SARL, 30, rue de Cessange.


title: Case T-654/11: Judgment of the General Court of 13 November 2014  — Kaddour v Council (Common foreign and security policy — Restrictive measures adopted against Syria — Freezing of funds — Action for annulment — Period for bringing proceedings — Partial inadmissibility — Locus standi — Burden of proof — Adjustment of temporal effects of annulment)

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/24

         Judgment of the General Court of 13 November 2014 — Kaddour v Council
   (Case T-654/11) (1)

   ((Common foreign and security policy - Restrictive measures adopted against Syria - Freezing of funds - Action for annulment - Period for bringing proceedings - Partial inadmissibility - Locus standi - Burden of proof - Adjustment of temporal effects of annulment))
   (2015/C 007/29)
   Language of the case: French

      Parties

      Applicant: Khaled Kaddour (Damascus, Syria) (represented by: M. Ponsard, D. Amaudruz and A. Boesch, lawyers)

      Defendant: Council of the European Union (represented by: S. Kyriakopoulou, G. Étienne and B. Driessen, agents)

      Re:

   Application for annulment of Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria (OJ 2011 L 121, p. 11), Council Implementing Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 1), Council Implementing Decision 2011/302/CFSP of 23 May 2011 implementing Decision 2011/273 (OJ 2011 L 136, p. 91), Council Implementing Regulation (EU) No 504/2011 of 23 May 2011 implementing Regulation No 442/2011 (OJ 2011 L 136, p. 45), Council Implementing Decision 2011/367/CFSP of 23 June 2011 implementing Decision 2011/273 (OJ 2011 L 164, p. 14), Council Implementing Regulation (EU) No 611/2011 of 23 June 2011 implementing Regulation No 442/2011 (OJ 2011 L 164, p. 1), Council Implementing Decision 2011/488/CFSP of 1 August 2011 implementing Decision 2011/273 (OJ L 199, p. 74), Council Implementing Regulation (EU) No 755/2011 of 1 August 2011 implementing Regulation No 442/2011 (OJ 2011 L 199, p. 33), Council Implementing Decision 2011/515/CFSP of 23 August 2011 implementing Decision 2011/273 (OJ L 218, p. 20), Council Implementing Regulation (EU) No 843/2011 of 23 August 2011 implementing Regulation No 442/2011 (OJ 2011 L 218, p. 1), Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273 (OJ 2011 L 228, p. 16), Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation No 442/2011 (OJ 2011 L 228, p. 1), Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273 (OJ 2011 L 247, p. 17), Council Regulation (EU) No 950/2011 of 23 September 2011 amending Regulation No 442/2011 (OJ 2011 L 247, p. 3), Council Decision 2011/684/CFSP of 13 October 2011 amending Decision 2011/273 (OJ 2011 L 269, p. 33), Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation No 442/2011 (OJ 2011 L 269, p. 18), Council Decision 2011/735/CFSP of 14 November 2011 amending Decision 2011/273 (OJ 2011 L 296, p. 53), Council Implementing Decision 2011/736/CFSP of 14 November 2011 implementing Decision 2011/273 (OJ 2011 L 296, p. 55), Council Regulation (EU) No 1150/2011 of 14 November 2011 amending Regulation No 442/2011 (OJ 2011 L 296, p. 1), Council Implementing Regulation (EU) No 1151/2011 of 14 November 2011 implementing Regulation No 442/2011 (OJ 2011 L 296, p. 3), Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273 (OJ 2011 L 319, p. 56), Council Implementing Regulation (EU) No 1244/2011 of 1 December 2011 implementing Regulation No 442/2011 (OJ 2011 L 319, p. 8), Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation No 442/2011 (OJ 2012 L 16, p. 1), Council Implementing Decision 2012/37/CFSP of 23 January 2012 implementing Decision 2011/782 (OJ 2012 L 19, p. 33), Council Implementing Regulation (EU) No 55/2012 of 23 January 2012 implementing Article 33(1) of Regulation No 36/2012 (OJ 2012 L 19, p. 6), Council Decision 2012/206/CFSP of 23 April 2012 amending Decision 2011/782 (OJ 2012 L 110, p. 36), Council Implementing Decision 2012/256/CFSP of 14 May 2012 implementing Decision 2011/782 (OJ 2012 L 126, p. 9), Council Implementing Regulation (EU) No 410/2012 of 14 May 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 126, p. 3), Council Regulation (EU) No 509/2012 of 15 June 2012 amending Regulation No 36/2012 (OJ 2012 L 156, p. 10), Council Decision 2012/322/CFSP of 20 June 2012 amending Decision 2011/782 (OJ 2012 L 165, p. 45), Council Implementing Decision 2012/335/CFSP of 25 June 2012 implementing Decision 2011/782 (OJ 2012 L 165, p. 80), Council Regulation (EU) No 545/2012 of 25 June 2012 amending Regulation No 36/2012 (OJ 2012 L 165, p. 23), Council Implementing Regulation (EU) No 544/2012 of 25 June 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 165, p. 20), Council Decision 2012/420/CFSP of 23 July 2012 amending Decision 2011/782 (OJ 2012 L 196, p. 59), Council Implementing Decision 2012/424/CFSP of 23 July 2012 implementing Decision 2011/782 (OJ 2012 L 196, p. 81), Council Implementing Regulation (EU) Noo673/2012 of 23 July 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 196, p. 8), Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782 (OJ 2012 L 330, p. 21), Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739 (OJ 2013 L 111, p. 77), Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012 (OJ 2013 L 111, p. 1), and Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), in so far as those acts concern the applicant.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action as being inadmissible, because out of time, in so far as it seeks the annulment of Council Implementing Decision 2011/367/CFSP of 23 June 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria, and of Council Implementing Regulation (EU) No 611/2011 of 23 June 2011 implementing Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria.

               2)

               Dismisses the action as being inadmissible in so far as it seeks the annulment of Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria, Council Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria, Council Implementing Decision 2011/302/CFSP of 23 May 2011 implementing Decision 2011/273, Council Implementing Regulation (EU) Noo504/2011 of 23 May 2011 implementing Regulation No 442/2011, Council Implementing Decision 2011/488/CFSP of 1 August 2011 implementing Decision 2011/273, Council Implementing Regulation (EU) No 755/2011 of 1 August 2011 implementing Regulation No 442/2011, Council Implementing Decision 2011/515/CFSP of 23 August 2011 implementing Decision 2011/273, Council Implementing Regulation (EU) No 843/2011 of 23 August 2011 implementing Regulation No 442/2011, Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273, Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation No 442/2011, Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273, Council Regulation (EU) No 950/2011 of 23 September 2011 amending Regulation No 442/2011, Council Decision 2011/684/CFSP of 13 October 2011 amending Decision 2011/273, Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation No 442/2011, Council Decision 2011/735/CFSP of 14 November 2011 amending Decision 2011/273, Council Implementing Decision 2011/736/CFSP of 14 November 2011 implementing Decision 2011/273, Council Regulation (EU) No 1150/2011 of 14 November 2011 amending Regulation No 442/2011, Council Implementing Regulation (EU) No 1151/2011 of 14 November 2011 implementing Regulation No 442/2011, Council Implementing Regulation (EU) No 1244/2011 of 1 December 2011 implementing Regulation No 442/2011, Council Implementing Decision 2012/37/CFSP of 23 January 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Regulation (EU) No 55/2012 of 23 January 2012 implementing Article 33(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Decision 2012/206/CFSP of 23 April 2012 amending Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Decision 2012/256/CFSP of 14 May 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Regulation (EU) No 410/2012 of 14 May 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Regulation (EU) No 509/2012 of 15 June 2012 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Decision 2012/322/CFSP of 20 June 2012 amending Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Decision 2012/335/CFSP of 25 June 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Regulation (EU) No 544/2012 of 25 June 2012 implementing Article 32(1) of Regulation (EU) Noo36/2012 concerning restrictive measures in view of the situation in Syria, Council Regulation (EU) No 545/2012 of 25 June 2012 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Implementing Regulation (EU) No 673/2012 of 23 July 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Decision 2012/420/CFSP of 23 July 2012 amending Decision 2011/782/CFSP concerning restrictive measures against Syria, and Council Implementing Decision 2012/424/CFSP of 23 July 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, since those acts do not concern Mr Khaled Kaddour.

               3)

               Declares that there is no need to adjudicate on the action in so far as it seeks the annulment of Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273, Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782, and Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739, since those acts have been repealed and replaced.

               4)

               Annuls, in so far as the following acts concern Mr Kaddour:

                           —

                           Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation No 442/2011;

                           —

                           Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012;

                           —

                           Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria.

               5)

               Orders the effects of the annulled decisions and regulations to be maintained with respect to Mr Kaddour, until the date of expiry of the period for bringing an appeal or, if an appeal is brought within that period, until any dismissal of that appeal.

               6)

               Orders the Council of the European Union to bear its own costs and to pay one third of the costs incurred by Mr Kaddour.

               7)

               Orders Mr Kaddour to bear two thirds of his own costs.

      (1)  OJ C 58, of 25.2.2012.


title: Notice of an open competition

text:
7.12.2001        EN                       Official Journal of the European Communities                                  C 346/11
                                                                 III
                                                               (Notices)
                                               COURT OF JUSTICE
                                            NOTICE OF AN OPEN COMPETITION
                                                         (2001/C 346/19)
          The Court of Justice of the European Communities is publishing in the Official Journal of the European
          Communities C 346 A of 7 December 2001 the following open competition:
          German edition
          CJ/LA/13 (Lawyer-linguists of German mother-tongue)
          To obtain this Official Journal please contact the Personnel Division of the Court of Justice of the European
          Communities, L-2925 Luxembourg.
          The final date for receipt of applications is 22 January 2002.


title: Case C-81/12: Judgment of the Court (Third Chamber) of 25 April 2013 (request for a preliminary ruling from the Curtea de Apel București — Romania) — Asociația ACCEPT v Consiliul Național pentru Combaterea Discriminării (Social policy — Equal treatment in employment and occupation — Directive 2000/78/EC — Articles 2(2)(a), 10(1) and 17 — Prohibition of discrimination on grounds of sexual orientation — Concept of ‘facts from which it may be presumed that there has been discrimination’ — Modified burden of proof — Effective, proportionate and dissuasive sanctions — Person presenting himself and being perceived by public opinion as playing a leading role in a professional football club — Public statements ruling out the recruitment of a footballer presented as being homosexual)

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/8

         Judgment of the Court (Third Chamber) of 25 April 2013 (request for a preliminary ruling from the Curtea de Apel București — Romania) — Asociația ACCEPT v Consiliul Național pentru Combaterea Discriminării
   (Case C-81/12) (1)

   (Social policy - Equal treatment in employment and occupation - Directive 2000/78/EC - Articles 2(2)(a), 10(1) and 17 - Prohibition of discrimination on grounds of sexual orientation - Concept of ‘facts from which it may be presumed that there has been discrimination’ - Modified burden of proof - Effective, proportionate and dissuasive sanctions - Person presenting himself and being perceived by public opinion as playing a leading role in a professional football club - Public statements ruling out the recruitment of a footballer presented as being homosexual)
   2013/C 171/14
   Language of the case: Romanian

      Referring court

   Curtea de Apel București

      Parties to the main proceedings

      Applicant: Asociația ACCEPT

      Defendant: Consiliul Național pentru Combaterea Discriminării

      Re:

   Request for a preliminary ruling — Curtea de Apel București — Interpretation of Articles 2(2)(a), 10(1) and 17 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Criteria used in the selection of football club staff discriminatory on grounds of sexual orientation — Applicability of the directive when statements are made in the press, in the absence of an actual recruitment procedure — Facts from which it may be presumed that there has been direct or indirect discrimination — Burden of proof — Body of penalties applicable when those provisions are infringed — Whether permissible for national legislation to preclude the imposition of a fine for infringement once the limitation period of six months has expired — Duty to impose effective, proportionate and dissuasive sanctions

      Operative part of the judgment

               1.

               Articles 2(2) and 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that facts such as those from which the dispute in the main proceedings are capable of amounting to ‘facts from which it may be presumed that there has been … discrimination’ as regards a professional football club, even though the statements concerned come from a person presenting himself and being perceived in the media and among the general public as playing a leading role in that club without, however, necessarily having legal capacity to bind it or to represent it in recruitment matters;

               2.

               Article 10(1) of Directive 2000/78 must be interpreted as meaning that, if facts such as those from which the dispute in the main proceedings arises were considered to be ‘facts from which it may be presumed that there has been direct or indirect discrimination’ based on sexual orientation during the recruitment of players by a professional football club, the modified burden of proof laid down in Article 10(1) of Directive 2000/78 would not require evidence impossible to adduce without interfering with the right to privacy;

               3.

               Article 17 of Directive 2000/78 must be interpreted as meaning that it precludes national rules by virtue of which, where there is a finding of discrimination on grounds of sexual orientation within the meaning of that directive, it is possible only to impose a warning such as that at issue in the main proceedings where such a finding is made after the expiry of a limitation period of six months from the date on which the facts occurred where, under those rules, such discrimination is not sanctioned under substantive and procedural conditions that render the sanction effective, proportionate and dissuasive. It is for the national court to ascertain whether such is the case regarding the rules at issue in the main proceedings and, if necessary, to interpret the national law as far as possible in light of the wording and the purpose of that directive in order to achieve the result envisaged by it.

      (1)  OJ C 126, 28.4.2012.


title: Case C-274/02: Action brought on 25 July 2002 by the Commission of the European Communities against the French Republic

text:
C 233/16                EN                    Official Journal of the European Communities                                      28.9.2002
Action brought on 25 July 2002 by the Commission of                      make good that failure. A Member State may not rely on
 the European Communities against the French Republic                    provisions, practices or circumstances existing in its internal
                                                                         legal order to justify its failure to comply with obligations laid
                                                                         down by Community law. Under no circumstances may it
                          (Case C-274/02)                                make its compliance with the judgment subject to any
                                                                         conditions whatsoever. The task given to the AFSSA by the
                                                                         French Government’s new referral, namely a study whether
                          (2002/C 233/25)                                ‘DBES’ products and French products are comparable, amounts
                                                                         to casting doubt on the primacy of Community law. The
                                                                         argument based on the alleged complexity of the judgment of
                                                                         13 December 2001 cannot in any circumstance justify any
An action against the French Republic was brought before the             delay in compliance; moreover, the operative part of the
Court of Justice of the European Communities on 25 July                  judgment is very clear, namely that the French Republic is
2002 by the Commission of the European Communities,                      required to permit the marketing of correctly marked or
represented by D. Booss and G. Berscheid, acting as Agents,              labelled ‘DBES’ products in its territory.
with an address for service in Luxembourg.
                                                                         In the alternative: it is not open to a Member State to rely
                                                                         upon the illegality of decisions addressed to it as a defence to
The Commission of the European Communities claims that
                                                                         an action for failure to fulfil its obligations based on its failure
the Court should:
                                                                         to comply with those decisions, either in proceedings under
                                                                         Article 226 EC, or, a fortiori, in proceedings under Article 228
—     declare that, by failing to take the necessary measures to         EC.
      comply with the judgment of the Court of Justice of the
      European Communities of 13 December 2001 in Case
      C-1/00 (1), that the French Republic, by refusing to adopt         So far as the amount of the penalty payment is concerned, the
      the measures necessary to comply with Council Decision             Commission refers to its information notices of 21 August
      98/256/EC of 16 March 1998 concerning emergency                    1996 (5) and 28 February 1997 ( 6) and applies to the basic
      measures to protect against bovine spongiform encepha-             amount of EUR 500 a factor of 15 (maximum possible: 20)
      lopathy, amending Decision 94/474/EC and repealing                 for the seriousness of the infringement, a factor of 1 (maximum
      Decision 96/239/EC ( 2), in the version resulting from             possible: 3) for its duration, and a factor of 21,1 for France’s
      Commission Decision 98/692/EC of 25 November                       ability to pay.
      1998 ( 3), in particular with Article 6 and Annex III, and
      Commission Decision 1999/514/EC of 23 July 1999 (4)
      setting the date on which dispatch from the United                 (1 ) [2001] ECR I-9989.
      Kingdom of bovine products under the date-based export             (2 ) OJ L 113, 15.4.1998, p. 33.
      scheme may commence by virtue of Article 6(5) of                   (3 ) OJ L 328, 4.12.1998, p. 35.
      Decision 98/256, in particular with Article 1, in particu-         (4 ) OJ L 195, 28.7.1999, p. 42.
      lar, by refusing to permit the marketing in its territory          (5 ) OJ C 242, p. 6.
      after 30 December 1999 of products subject to that                 (6 ) OJ C 63, p. 2.
      scheme which are correctly marked or labelled, was in
      breach of its obligations under those two decisions, in
      particular their provisions referred to above, the French
      Republic has failed to fulfil its obligations under
      Article 228 of the Treaty establishing the European
      Community,
—     order the French Republic to pay into the Commission’s             Reference for a preliminary ruling by the Court of Appeal
      ‘own resources of the EC’ account, a penalty payment of            (England & Wales) (Civil Division), by order of that court
      EUR 158 250 per day, for each day’s delay in taking the            dated 5 July 2002, in the case of Andrew Owusu against
      measures necessary to comply with the judgment given               1) N. B. Jackson (trading as Villa Holidays Bal-Inn Villas),
      by the Court of Justice in Case C-1/00, calculated from            2) Mammee Bay Resorts Ltd, 3) Mammee Bay Club Ltd,
      the date of delivery of that judgment,                             4) The Enchanted Garden Resorts & Spa Ltd, 5) Consulting
                                                                                Services Ltd, 6) Town & Country Resorts Ltd
—     order the French Republic to pay the costs.
                                                                                (Case C-281/02)
                                                                                (2002/C 233/26)
Pleas in law and main arguments
The simple fact that the Court has found that a Member State             Reference has been made to the Court of Justice of the
has failed to fulfil its obligations obliges the Member State to         European Communities by an order of the Court of Appeal


title: Case T-185/06: Action brought on 17 July 2006 — L'Air Liquide v Commission

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/37

         Action brought on 17 July 2006 — L'Air Liquide v Commission
   (Case T-185/06)
   (2006/C 212/66)
   Language of the case: French
   Parties

      Applicant: L'Air Liquide SA (Paris, France) (represented by: R. Saint Esteben and M. Pittie, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought by the applicant
   The applicant claims that the Court should:

               —

               declare the action admissible;

               —

               annul Article 1(i) of Commission Decision C (2006) 1766 final of 3 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) in so far as it decided that L'Air Liquide infringed Article 81 EC and Article 53 EEA between 12 May 1995 and 31 December 1997;

               —

               consequently, annul Articles 2(f) and 4 of Commission Decision C (2006) 1766 final of 3 May 2006, as regards L'Air Liquide;

               —

               order the Commission to pay all the costs incurred by the applicant in connection with this action.

         Pleas in law and main arguments
   By this action, the applicant seeks the partial annulment of Commission Decision C (2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and perborate, by which the Commission found that the undertakings to which the decision was addressed, including the applicant, infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a number of agreements and concerted practices consisting in exchanges of information between competitors and agreements on prices and production capacities as well as monitoring the implementation of those agreements in the hydrogen peroxide and sodium perborate sector.
   In support of its claims, the applicant relies on four pleas in law.
   By its first plea in law, the applicant claims that the Commission made a manifest error of assessment in deciding that the matters which it put forward in order to presume L'Air Liquide jointly and severally liable because of the conduct of its subsidiary were sufficient having regard to the criteria established by the case-law and that the Commission therefore misapplied the rules governing the attribution to a parent company of the conduct of its subsidiary and thus infringed Article 81 EC.
   By its second plea in law, the applicant claims that by wrongly invoking the presumption of attribution with regard to L'Air Liquide, the Commission also improperly reversed the burden of proof and thus infringed the applicant's right to a fair hearing.
   By its third plea in law, the applicant argues that, even if the Court of First Instance considers that the Commission was justified in presuming the attribution to L'Air Liquide of the conduct of its subsidiary Chemoxal, the Commission failed to fulfil its obligation to state its reasons in that it did not discuss any of the evidence put forward by L'Air Liquide to demonstrate Chemoxal's independence and thus reversed that presumption of joint and several liability, which is only a rebuttable presumption.
   By its fourth plea in law, the applicant maintains that the Commission has not shown sufficiently in law and fact its legitimate interest in bringing proceedings against the applicant in the present proceedings by adopting, in spite of the time-bar on its power to penalise L'Air Liquide, a decision establishing L'Air Liquide's commission of an infringement of Article 81(1) EC and Article 53 of the EEA Agreement and that in default of such a legitimate interest, the Commission therefore had no power to adopt such a decision against the applicant.


title: Action brought on 26 November 1998 by the Commission of the European Communities against the Hellenic Republic (Case C-426/98)

text:
23.1.1999               EN                  Official Journal of the European Communities                                    C 20/21
additional training required in order to obtain the                    Reference for a preliminary ruling from the Hoge Raad
corresponding title in the host Member State, Article 16               der Nederlanden by judgment of that court of 6 November
provides that that State may require the migrant architect             1998 in the case of Marca Mode CV against 1. Adidas AG
to use the title employed in his Member State of origin or                               and 2. Adidas Benelux BV
the Member State from which he comes in a suitable
form' to be specified by the host Member State. The                                           (Case C-425/98)
Directive does not authorise the host Member State to                                          (1999/C 20/35)
adopt other measures, such as the imposition of an
obligation requiring the architect in question to work in
collaboration with a professional person who is qualified
in the host Member State to pursue to the activities for
                                                                       Reference has been made to the Court of Justice of the
which the migrant architect has not received the
                                                                       European Communities by judgment of the Hoge Raad
prescribed training. Such measures constitute a
                                                                       der Nederlanden (Supreme Court of the Netherlands) of
disproportionate restriction on the architect's freedom of
                                                                       6 November 1998, received at the Court Registry on
establishment and, a fortiori, on freedom to provide
                                                                       26 November 1998, for a preliminary ruling in the case of
services.
                                                                       Marca Mode CV against 1. Adidas AG and 2. Adidas
                                                                       Benelux BV on the following question:
(1) Boletin Oficial del Estado No 214 of 7 September 1989.
(2) OJ L 223, 21.8.1985, p. 15.
                                                                       Where:
                                                                       (a) a trade mark has a particularly distinctive character,
                                                                            either per se or because of the reputation it enjoys
                                                                            with the public; and
Reference for a preliminary ruling by the Tribunal de
PremieÁre Instance de Bruxelles (Sixth Chamber) by
judgment of that court of 10 November 1998 in the case
of Colonia Versicherung Aktiengesellschaft, Zweignieder-               (b) a third party, without the consent of the proprietor of
lassung München and 17 others against the Belgian State,                    the mark, uses, in the course of trade in goods or
  Minister of Finance, Customs and Excise Administration                    services which are identical with, or similar to, those
                                                                            for which the trade mark is registered, a sign which
                         (Case C-422/98)                                    so closely corresponds to the mark as to create a
                                                                            likelihood of its being associated with that mark,
                          (1999/C 20/34)
                                                                       must Article 5(1)(b) of Directive 89/104/EEC (1) be
Reference has been made to the Court of Justice of the                 interpreted as meaning that the exclusive right enjoyed by
European Communities by judgment of the Sixth                          the proprietor entitles him to prevent the use of the sign
Chamber of the Tribunal de PremieÁre Instance de                       by that third party if the distinctive character of the mark
Bruxelles (Court of First Instance, Brussels) of                       is such that the possibility of such association giving rise
10 November 1998, received at the Court Registry on                    to confusion cannot be ruled out?
26 November 1998, for a preliminary ruling in the case of
Colonia Versicherung Aktiengesellschaft, Zweigniederlas-
sung München and 17 others v. Belgian State, Minister of               (1) OJ L 40, 11.2.1989, p. 1.
Finance, Customs and Excise Administration on the
following question:
Does not Paragraph 210 of the Ministerial Decree of
22 January 1948, by requiring an importer into Belgium
of manufactured tobacco products to which tax bands are                Action brought on 26 November 1998 by the Commission
affixed, where those products are not fit for consumption,             of the European Communities against the Hellenic
to destroy them in Belgium under the supervision of the                                            Republic
Belgian customs authorities and by not according
probative value to documents drawn up by the customs                                          (Case C-426/98)
authorities of another Member State as proof of such
                                                                                (1999/C 20/36)
destruction constitute a measure having effects equivalent
to a quantitative restriction?'
                                                                       An action against the Hellenic Republic was brought
                                                                       before the Court of Justice of the European Communities
 ---pagebreak--- C 20/22                EN                     Official Journal of the European Communities                                 23.1.1999
on 26 November 1998 by the Commission of the                             Action brought on 26 November 1998 by the Commission
European Communities, represented by Dimitrios                           of the European Communities against the Federal
Gouloussis, Commission Legal Adviser, with an address                                         Republic of Germany
for service in Luxembourg at the Office of Carlos Gómez
                                                                                (Case C-427/98)
de la Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                                (1999/C 20/37)
The Commission claims that the Court should:
                                                                         An action against the Federal Republic of Germany was
Ð declare that, by imposing for the benefit of the                       brought before the Court of Justice of the European
    Lawyers' Fund and the Lawyers' Social Fund                           Communities on 26 November 1998 by the Commission
    additional charges on the formation of public limited                of the European Communities, represented by Enrico
    companies and limited liability companies, on the                    Traversa, a Member of the Commission's Legal Service
    promulgation and alteration of their memoranda and                   and Dr Andreas Buschmann, a national expert seconded
    articles of association and on the increase of their                 to the Commission's Legal Service, acting as Agents, with
    capital, the Hellenic Republic has failed to fulfil its              an address for service in Luxembourg at the Office of
    obligations under the EC Treaty and in particular                    Carlos Gómez de la Cruz, a member of the Commission's
    under Articles 7 and 10 of Directive 69/335/EEC (1), as              Legal Service, Wagner Centre C-254, Luxembourg.
    amended by Council Directive 85/303/EEC (2) of
    10 June 1985;
                                                                         The applicant claims that the Court should:
Ð order the Hellenic Republic to pay the costs.
                                                                         (1) Find that the Federal Republic of Germany failed to
Pleas in law and main arguments adduced in support:                            fulfil its obligations under Article 11 of the Sixth
                                                                               Council Directive 77/388/EEC (1) of 17 May 1977 on
                                                                               the harmonisation of the laws of the Member States
Since the total indirect tax burden in Greece on the                           relating to turnover taxes Ð Common system of
formation of a company, on the promulgation and                                value added tax; uniform basis of assessment, in that
alteration of its memorandum and articles of association                       it failed to adopt any provisions enabling the basis of
and on an increase in its capital exceeds by far the upper                     taxation to be adjusted where price reduction
limit laid down in Article 7 of Directive 69/335/EEC, as                       coupons have been granted.
amended by Directive 85/303/EEC, the provisions of
Greek law which impose the duties at issue are
inconsistent with Community law.
                                                                         (2) Order the Federal Republic of Germany to pay the
                                                                               costs.
Contrary to the assertions of the Hellenic Republic, the
pertinent charges:
                                                                         Pleas in law and main arguments adduced in support:
(1) cannot be described as employers' contributions,
     because there is no link of an insurance nature
     between the persons liable to pay them and the                      In the Commission's view, German law infringes the
     insurance bodies entitled to the payments;                          principle of neutrality of turnover tax as expressed in
                                                                         Article 11 Part A 1(a) and Part C 1 of the Sixth Directive,
                                                                         in that it does not permit a taxpayer (such as a
(2) do not cease to be indirect duties because (a) they are              manufacturer) who, upon presentation of a coupon,
     not paid as income into the State budget in its                     reimburses a part of the final sale price of products, which
     narrow sense but into the budget of public legal                    he does not deliver to his purchasers direct, to reduce his
     persons, (b) the purpose for which they are levied is               basis of taxation accordingly. The German Government's
     fixed by law and (c) they are imposed irrespective of               administrative notice of 15 April 1998, following the
     the tax-paying capacity of the persons liable to pay                judgment of the Court of Justice in Elida Gibbs (2),
     them;                                                               distinguishes between reimbursements to the end user (in
                                                                         exchange for a price reimbursement coupon') and
                                                                         reimbursements to the retailer (in exchange for a price
(3) are not in the nature of consideration or fees for the               reduction coupon'). However, ultimately neither the
     services provided by the lawyers.                                   recipient of the reimbursement nor the specific name given
                                                                         to the coupon is material since, in the Commission's view
                                                                         (based on the Elida Gibbs judgment), the law should treat
(1) OJ, English Special Edition 1969 (II), p. 412.
(2) OJ L 156, 15.6.1985, p. 23.                                          both variants alike. The basis of taxation applied to a
                                                                         taxpayer (such as a manufacturer) who grants
                                                                         reimbursements on the final price of his products to
                                                                         stimulate sales should be reduced by the amount


title: Case T-66/00: Action brought on 20 March 2000 by "B" against the Commission of the European Communities

text:
13.5.2000              EN                     Official Journal of the European Communities                                      C 135/29
— breach of the principle of subsidiarity, in so far as the              Action brought on 20 March 2000 by ‘B’ against the
    possibility for the applicant to be entitled to such leave                    Commission of the European Communities
    requires an amendment to the Danish legislation on the
    matter.                                                                                (Case T-66/00)
                                                                                (2000/C 135/51)
                                                                                (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 20 March 2000 by ‘B’, of Tervue-
Action brought on 20 March 2000 by Angeliki Ioannou                      ren, Belgium, represented by Jean-Noël Louis, Greta-Françoise
          against the Council of the European Union                      Parmentier and Véronique Peere, of the Brussels Bar.
                         (Case T-65/00)                                  The applicant claims that the Court should:
                                                                         — rule that the purported decision of 4 March 1999 is not in
                        (2000/C 135/50)                                      fact a decision, and consequently restore the applicant’s
                                                                             rights;
                                                                         — in the alternative, annul the decision to withdraw the
                   (Language of the case: French)
                                                                             dependent child allowance awarded to the applicant for
                                                                             her son, and the decision to reduce her expatriation
An action against the Council of the European Union was                      allowance with effect from 1 September 1997; and
brought before the Court of First Instance of the European
Communities on 20 March 2000 by Angeliki Ioannou, resid-                 — in the alternative, annul the decision to withdraw the
ing in Brussels, represented by Jean van Rossum, of the Brussels             education allowance awarded to the applicant for her son
Bar.                                                                         with effect from 1 September 1997;
                                                                         — order the Commission to pay the costs.
The applicant claims that the Court should:
                                                                         Pleas in law and main arguments
— annul the Council’s decision of 21 May 1999 refusing
    to appoint the applicant a probationary official of the              The applicant challenges the decision to withdraw her depen-
    institution;                                                         dent child allowance and education allowance, and the
                                                                         appointing authority’s decision to recover part of the allow-
— order the defendant to pay the costs.                                  ances paid. The withdrawal of the allowances arose from the
                                                                         Opinion of the Heads of Administration No 188/89, of
                                                                         30 January 1990, of which the applicant was only able to take
                                                                         cognizance in February 1999, and which fixes an upper
Pleas in law and main arguments                                          income limit beyond which a child of a servant of the
                                                                         Communities may no longer be deemed to be a dependent
                                                                         child.
The applicant, a former employee of the Benelux Economic
Union assigned to the Secretariat responsible for implementing           In support of her claims, the applicants alleges:
the Schengen agreement, contests the appointing authority’s
refusal to appoint her a probationary official upon the                  — Infringement of the decision of 21 January 1998 concern-
integration of the Schengen Secretariat into the General                     ing the exercise of authority granted under the Staff
Secretariat of the Council.                                                  Regulations to the appointing authority, in so far as
                                                                             decisions to grant and withdraw the awards at issue were
                                                                             not taken by the same authority as that which applies
In support of her claims, the applicant pleads:                              Article 85 of the Staff Regulations;
— infringement of Article 25(2) of the Staff Regulations and             — Infringement of Article 2 of Annex VII to the Staff
    of the rights of the defence;                                            Regulations;
                                                                         — The inapplicability, or alternatively the illegality of the
— in the present case, a manifest error of assessment.                       Opinion of the Heads of Administration No 188/89;
                                                                         — Infringement of Article 85 of the Staff Regulations;
                                                                         — Failure to fulfil the obligation to state reasons, and
 ---pagebreak--- C 135/30               EN                    Official Journal of the European Communities                                      13.5.2000
— Manifest error of assessment.                                             out their own investigation whilst recognising that the
                                                                            EFTA Surveillance Authority was exclusively competent in
                                                                            this matter, contrary to Article 56 of the EEA Agreement.
                                                                            The documentary evidence obtained on the basis of an
                                                                            illegal decision should have been removed from the
                                                                            proceedings. Second, the Commission should not have
Action brought on 23 March 2000 by Nippon Steel                             used the documentary evidence upon which it relies as it
Corporation against the Commission of the European                          was obtained on behalf of the EFTA Surveillance Authority
                          Communities                                       which conducted an investigation, the purpose of which
                                                                            was different from that of the Commission proceeding;
                         (Case T-68/00)
                                                                        — in the alternative, the fine should be annulled or, at the
                        (2000/C 135/52)                                     very least, substantially reduced, inter alia, on the ground
                                                                            that the Commission made a factual error in computing
                                                                            the duration of the alleged infringement. The Commission
                                                                            claims that, in view of the EC-Japan voluntary restraint
                  (Language of the case: English)                           agreements, it takes account of the existence of an
                                                                            infringement only from 1990 onwards. The Commission,
An action against the Commission of the European Communi-                   however, made a factual error in that the voluntary
ties was brought before the Court of First Instance of the                  restraint agreements expired only on 31 December 1990
European Communities on 23 March 2000 by Nippon Steel                       and thus covered the whole year of 1990.
Corporation (Tokyo), represented by Jean-François Bellis and
Kris Van Hove.
The applicant claims that the Court should:
— annul the Commission decision of 8 December 1999
    relating to a proceeding under Article 81 of the EC Treaty
    (Case IV/E-1/35.860-B Seamless steel tubes) in so far as it
    concerns the applicant;                                             Action brought on 23 March 2000 by Fiamm SpA and
                                                                        Fiamm Technologies Inc. against the Commission and the
— annul or, at the very least, reduce the amount of the fine                       Council of the European Communities
    imposed on the applicant; and
                                                                                (Case T-69/00)
— order the Commission to bear the costs.
                                                                                (2000/C 135/53)
Pleas in law and main arguments
                                                                                (Language of the case: Italian)
In the decision of 8 December 1999, the Commission imposed
a fine upon the applicant for its alleged participation in an
alleged agreement to refrain from selling seamless standard             An action against the Commission and the Council of the
OCTG and line pipe into Germany, Italy, France and the United           European Communities was brought before the Court of First
Kingdom, contrary to Article 81(1) of the EC Treaty. The                Instance of the European Communities on 23 March 2000 by
applicant puts forward the following three submissions:                 Fiamm SpA and Fiamm Technologies Inc., represented by Ivo
                                                                        Van Bael of the Brussels Bar, Andrea Cevese of the Vicenza Bar
— the Commission has failed to establish the existence of the           and Fabrizio di Gianni of the Rome Bar.
    alleged infringement as far as the applicant is concerned.
    The Commission’s analysis is flawed in that it did not take
    account of the vigorous competition from the applicant in           The applicants claim that the Court should:
    the UK offshore market and the high barriers to entry for
    Japanese supplies of the relevant products to the European          — award them: (i) damages against the Community of LIT
    onshore markets. Furthermore, the documentary evidence                  20835811027.16, or such other sum as the Court may
    relied upon by the Commission fails to support its finding              consider reasonable, final determination to be reserved for
    that the agreement existed and even less that the applicant             as long as the payment obligation lasts; (ii) interest at the
    was a party to it;                                                      Italian statutory rate on 96.5 % of the increased duties paid
                                                                            by the applicants to the US customs administration,
— the challenged decision is illegal as the Commission relied               from the date of actual payment by the applicants until
    on documentary evidence illegally obtained and used. First,             satisfaction; and (iii) interest at 8 % per annum, in accord-
    the decision of 25 November 1994, which authorised the                  ance with Community case-law, in the event of delay in
    on-site investigations of 1 and 2 December 1994, was                    payment of the sum demanded after the judgment award-
    illegal because it empowered Commission officials to carry              ing compensation;


title: Judgment of the Court of 6 December 2013 in Case E-18/13 — EFTA Surveillance Authority v Iceland (Failure by a Contracting Party to fulfil its obligations — Directive 2001/81/EC — Failure to implement)

text:
               27.3.2014

               EN

               Official Journal of the European Union

               C 88/17

      JUDGMENT OF THE COURT

   of 6 December 2013
   in Case E-18/13
   EFTA Surveillance Authority v Iceland
   (Failure by a Contracting Party to fulfil its obligations — Directive 2001/81/EC — Failure to implement)
   2014/C 88/14
   In Case E-18/13, EFTA Surveillance Authority v Iceland — APPLICATION for a declaration that by failing, within the time prescribed to adopt or to notify the EFTA Surveillance Authority forthwith of all measures necessary to implement the Act referred to at point 21 ar of Annex XX to the Agreement on the European Economic Area, that is Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, as adapted to the Agreement by way of Protocol 1 thereto, Iceland has failed to fulfil its obligations under the Act and under Article 7 EEA, the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Páll Hreinsson, Judges, gave judgment on 6 December 2013, the operative part of which is as follows:
   The Court hereby:

               1.

               Declares that Iceland has failed to fulfil its obligations under the Act referred to at point 21ar of Annex XX to the Agreement on the European Economic Area (Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants), as adapted to the Agreement by way of Protocol 1 thereto, and under Article 7 of the Agreement, by failing to adopt all the measures necessary to implement the Act within the time prescribed.

               2.

               Orders Iceland to bear the costs of the proceedings.


title: Case T-324/12: Action brought on 19 July 2012 — Knauf Insulation Technology v OHIM — Saint Gobain Cristaleria (ECOSE TECHNOLOGY)

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/26

         Action brought on 19 July 2012 — Knauf Insulation Technology v OHIM — Saint Gobain Cristaleria (ECOSE TECHNOLOGY)
   (Case T-324/12)
   2012/C 295/47
   Language in which the application was lodged: English

      Parties

      Applicant: Knauf Insulation Technology (Visé, Belgium) (represented by: K. Manhaeve, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Saint Gobain Cristaleria, SL (Madrid, Spain)

      Form of order sought

               —

               Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2012 in joined cases R 1193/2011-5 and R 1426/2011-5 insofar as it has declared the opponent’s opposition successful against the CTM application for part of the goods and services applied for;

               —

               Order the defendant and — if applicable — the Opponent to jointly and severally pay all the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘ECOSE TECHNOLOGY’, for goods and services in classes 1, 2, 3, 16, 17, 19, 20 and 40 — Community trade mark application No W 998610

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Spanish trade mark registration No 2556409 of the word mark ‘ECOSEC FACHADAS’, for goods in classes 17 and 19

      Decision of the Opposition Division: Upheld the opposition for part of the contested goods

      Decision of the Board of Appeal: Partially annulled the contested decision and dismissed the appeal and confirmed the contested decision for the remainder

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


title: Case C-227/99: Action brought on 11 June 1999 by the Commission of the European Communities against the Portuguese Republic

text:
C 226/26               EN                    Official Journal of the European Communities                                        7.8.1999
    Council Directive 76/207/EEC ... ’. The French Govern-              — in the alternative, by failing to inform the Commission
    ment’s argument that it had not been possible to initiate               forthwith of such measures the Portuguese Republic failed
    consultations with labour and employers with a view to                  to fulfil its obligations under those same provisions;
    submitting legislation to Parliament on nightwork is
    wholly without foundation. It is settled case-law that a            — order the Portuguese Republic to pay the costs.
    Member State cannot rely on provisions, practices or
    situations in its national legal system to justify a failure to
    comply with obligations under Community law.                        Pleas in law and main arguments
— The Commission refers to its communications published in              — The mandatory nature of the provisions of the third
    the Official Journal on 21 August 1996 (2) and 28 February              paragraph of Article 249 and the first paragraph of Article
    1997 (3). It considers that the circumstances in which a                10 of the EC Treaty requires Member States to adopt the
    financial penalty may be waived do not pertain. Based on                measures necessary to transpose directives addressed to
    the principle set out in those communications, it has                   them into their domestic law before the expiry of the
    calculated the amount of the fine by attributing a coef-                period prescribed for doing so. That period expired on
    ficient of 9/20 to the seriousness of the breach (being the             25 October 1997 without Portugal having brought into
    sum of a coefficient of 6/10, based on the importance of                force the necessary provisions.
    the Community provisions breached, and a coefficient of
    3/10, based on the effects of the breach on the public
                                                                        (1) OJ 1996 L 272, p. 36.
    interest and the interests of individuals) and a multipli-
    cation coefficient of 1.5/3 to the length of time.
(1) Case C-197/96 (1997) ECR I-1489.
(2) OJ 1996 C 242, p. 6.
(3) OJ 1997 C 63, p. 2.
                                                                        Action brought on 15 June 1999 by the Commission of
                                                                         the European Communities against the French Republic
                                                                                (Case C-229/99)
                                                                                (1999/C 226/45)
                                                                        An action against the French Republic was brought before the
Action brought on 11 June 1999 by the Commission                        Court of Justice of the European Communities on 15 June
of the European Communities against the Portuguese                      1999 by the Commission of the European Communities,
                            Republic                                    represented by Peter Oliver, Legal Adviser, acting as Agent,
                                                                        with an address for service in Luxembourg at the office of
                                                                        Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,
                         (Case C-227/99)                                Kirchberg.
                         (1999/C 226/44)                                The applicant claims that the Court should:
                                                                        — Declare that, by failing to adopt the laws, regulations
An action against the Portuguese Republic was brought before                and administrative provisions necessary to comply with
the Court of Justice of the European Communities on 11 June                 Council Directive 95/29/EC of 29 June 1995 amending
1999 by the Commission of the European Communities,                         Directive 90/628/EEC concerning the protection of ani-
represented by Frank Benyon, Legal Adviser, and António                    mals during transport (1), the French Republic has failed to
Caeiros, of its Legal Service, acting as Agents, with an address            fulfil its obligations under that directive and the EC Treaty;
for service in Luxembourg at the office of Carlos Gómez de la              and
Cruz of its Legal Service, Wagner Centre, Kirchberg.
                                                                        — Order the French Republic to pay the costs.
The applicant claims that the Court should:
                                                                        Pleas in law and main arguments
— Declare that, by failing to bring into force the laws,
    regulations and administrative provisions necessary to              The pleas in law and main arguments are analogous to those
    comply with Council Directive 96/67/EC (1) of 15 October            in Case C-227/99; the time-limit laid down in Article 2 of the
    1996 on access to the groundhandling market at Com-                 directive expired on 31 December 1996.
    munity airports, within the period prescribed by the first
    subparagraph of Article 23(1) thereof, the Portuguese
    Republic has failed to fulfil its obligations under the first       (1) OJ 1995 L 148, p. 52.
    paragraph of Article 10 and the third paragraph of Article
    249 of the EC Treaty as well as under the first subparagraph
    of Article 23(1) of Directive 96/67/EC; and


title: Case T-9/16: Order of the General Court of 6 September 2016 — Skechers USA France v EUIPO — IM Production (Shoes)

text:
               7.11.2016

               EN

               Official Journal of the European Union

               C 410/36

         Order of the General Court of 6 September 2016 — Skechers USA France v EUIPO — IM Production (Shoes)
   (Case T-9/16) (1)

   (2016/C 410/66)
   Language of the case: French
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 98, 14.3.2016.


title: Case C-239/06: Action brought on  29 May 2006  — Commission of the European Communities v Italian Republic

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/24

         Action brought on 29 May 2006 — Commission of the European Communities v Italian Republic
   (Case C-239/06)
   (2006/C 178/38)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: G. Wilms, C. Cattabriga, L. Visaggio, agents)

      Defendant: Italian Republic
   Form of order sought

               —

               Declare that the Italian Republic, by refusing to calculate and pay the own resources which were improperly not collected as a result of the exemption from import duties unilaterally applied to material used for military purposes and the default interest due by reason of the failure to make those own resources available to the Commission in good time, the Italian Republic has failed to fulfil its obligations under Articles 2, 9, 10 and 11 of Regulation (EEC, Euratom) No 1552/89 and the corresponding provisions of Regulation (EC, Euratom) No 1150/2000.

               —

               Order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   In the view of the Commission, the exemption from customs duties unilaterally granted by Italy during the period preceding the application of Council Regulation (EC) No 150/2003 (1) amounted to an unlawful derogation from Article 26 EC and from Community customs legislation, resulting in an unjustifiable reduction in customs revenue, which constitutes the Community's own resources. Despite the applicant's repeated requests, the Italian Government has refused to calculate and pay to the Community the amounts corresponding to the own resources consequently evaded during the period between 1 January 1998 and 31 December 2002, and to pay default interest on the said amounts, as laid down by the legislation in force in this area.

      (1)  OJ L 25, p. 1.


title: Case C-501/11 P: Appeal brought on 28 September 2011 by Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV and Schindler Deutschland Holding GmbH against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-138/07 Schindler Holding Ltd and Others v European Commission, supported by the Council of the European Union

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/19

         Appeal brought on 28 September 2011 by Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV and Schindler Deutschland Holding GmbH against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-138/07 Schindler Holding Ltd and Others v European Commission, supported by the Council of the European Union
   (Case C-501/11 P)
   2011/C 347/29
   Language of the case: German

      Parties

      Appellants: Schindler Holding Ltd, Schindler Management AG, Schindler SA, Schindler Sàrl, Schindler Liften BV, Schindler Deutschland Holding GmbH (represented by: R. Bechtold and W. Bosch, Rechtsanwälte, and Professor Dr J. Schwarze)

      Other parties to the proceedings: European Commission, Council of the European Union

      Form of order sought

               1.

               set aside the judgment of the General Court (Eighth Chamber) of 13 July 2011 in Case T-138/07;

               2.

               annul the decision of the Commission of 21 February 2007 (COMP/E-1/38.823 — lifts and escalators),
               in the alternative, annul or reduce the fine imposed on the appellants in that decision;

               3.

               in the alternative to points 1 and 2 above, refer the matter back to the General Court for judgment in accordance with the legal appraisal in the judgment of the Court of Justice;

               4.

               in any event, order the Commission to pay the appellants’ costs of the proceedings before the General Court and the Court of Justice.

      Pleas in law and main arguments

   The appellants raise a total of 13 pleas in law in support of their appeal:

               —

               First, the General Court has infringed the principle of separation of powers and the requirement for proceedings governed by the rule of law, in that it takes the view that the Commission has the power to impose fines, without the General Court itself having examined the decision of the Commission in its entirety.

               —

               Second, the General Court has infringed the principle of the direct adduction of evidence, in that it regarded evidence from cooperative witnesses as admissible, in accordance with the practice of the Commission at that time.

               —

               Third, the General Court has infringed the principle of legality (Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; ‘the ECHR’), in that it has regarded Article 23(2) of Regulation No 1/2003 (1) as being a sufficiently precise legal basis for the imposition of fines.

               —

               Fourth, the General Court has disregarded the fact that the Commission’s 1998 Guidelines for fines are ineffective due to the Commission’s lack of competence.

               —

               Fifth, the General Court has wrongly denied that the Commission’s 1998 Guidelines for fines infringe the principles of non-retroactivity and protection of legitimate expectations.

               —

               Sixth, the General Court has infringed the principle of fault and the presumption of innocence (Article 27(2) of Regulation No 1/2003; Article 48(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’); Article 6(2) of the ECHR), in that it has failed to consider that attribution to the undertakings concerned of the infringement through employees was necessary or did not investigate that issue.

               —

               Seventh, the General Court has wrongly found that Schindler Holding was jointly liable. In that connection, the principles on joint liability of the parent company that were applied fall within the powers of the Member States. Furthermore, the General Court has also exceeded the limits laid down in case-law of the Court of Justice and infringed the principle of the presumption of innocence (Article 48(1) of the Charter and Article 6(2) of the ECHR).

               —

               Eighth, the General Court has unlawfully regarded the ceilings in Article 23(2) of Regulation No 1/2003 as not having been exceeded.

               —

               Ninth, the right to property of Schindler Holding has been infringed, since the fixing of the fine has the effect of an expropriation (Article 17(1) of the Charter; Article 1 of the First Additional Protocol to the ECHR).

               —

               Tenth, the General Court has erred in law by regarding the excessive basic amounts adopted by the Commission as justified.

               —

               Eleventh, the General Court has wrongly approved the non-acceptance by the Commission of certain circumstances as mitigating factors. In so doing, the General Court disregarded in particular the voluntary termination of the cartel in Germany and the appellants’ compliance measures.

               —

               Twelfth, the General Court has regarded the discounts for cooperation, applied at too low a rate or wrongly not included by the Commission, as justified. In so doing, it disregards the contributions of the appellants. It also disregards the fact that the Commission unlawfully allowed reductions for cooperation outside the leniency notice which were too low.

               —

               Thirteenth, the General Court has infringed the principle of proportionality, in that it has regarded the amount of the fines as acceptable.

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


title: Case C-70/14: Order of the Court of 11 December 2014 (request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Viseu — Portugal) — Agrocaramulo — Empreendimentos Agro-Pecuários do Caramulo SA v Instituto de Financiamento da Agficultura e Pescas, IP (IFAP) (Reference for a preliminary ruling — Regulation (EEC) No 3846/87 — Agriculture — Common organisation of the markets — Export refunds — Poultrymeat — ‘Cull hens’  — Agricultural product nomenclature for export refunds — Classification)

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/16

         Order of the Court of 11 December 2014 (request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Viseu — Portugal) — Agrocaramulo — Empreendimentos Agro-Pecuários do Caramulo SA v Instituto de Financiamento da Agficultura e Pescas, IP (IFAP)
   (Case C-70/14) (1)

   ((Reference for a preliminary ruling - Regulation (EEC) No 3846/87 - Agriculture - Common organisation of the markets - Export refunds - Poultrymeat - ‘Cull hens’ - Agricultural product nomenclature for export refunds - Classification))
   (2015/C 065/23)
   Language of the case: Portuguese

      Referring court

   Tribunal Administrativo e Fiscal de Viseu

      Parties to the main proceedings

      Applicant: Agrocaramulo — Empreendimentos Agro-Pecuários do Caramulo SA

      Defendant: Instituto de Financiamento da Agricultura e Pescas, IP (IFAP)

      Operative part of the order

   Annex I to Commission Regulation (EEC) No 3846/87 of 17 December 1987 establishing an agricultural product nomenclature for export refunds, as most recently amended by Commission Regulation (EC) No 2091/2005 of 15 December 2005, must be interpreted as meaning that laying hens put down at the end of their laying period, when their skeleton is completely ossified, known as ‘cull hens’, do not fall within the description ‘others’ under product headings 0207 12 10 9900 and 0207 12 90 9190 set out in that annex.

      (1)  OJ C 135, 5.5.2014.


title: Case C-32/07: Judgment of the Court (Fifth Chamber) of 31 January 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2001/84/EC — Copyright — Resale right for the benefit of the author of an original work of art)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/6

         Judgment of the Court (Fifth Chamber) of 31 January 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-32/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2001/84/EC - Copyright - Resale right for the benefit of the author of an original work of art)
   (2008/C 79/10)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: R. Vidal Puig and W. Wils, acting as Agent(s))

      Defendant: Kingdom of Spain (represented by: F. Díez Moreno, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt within the period prescribed all the measures necessary to comply with Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ 2001 L 272, p. 32)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 82, 14.4.2007.


title: Case T-279/11: Judgment of the General Court of 6 June 2013 — T&L Sugars and Sidul Açúcares v Commission (Agriculture — Exceptional measures concerning the release of out-of-quota sugar on the Union market and opening a tariff quota — Action for annulment — Regulatory act entailing implementing measures — Lack of individual concern — Inadmissibility — Action for damages)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/70

         Judgment of the General Court of 6 June 2013 — T&L Sugars and Sidul Açúcares v Commission
   (Case T-279/11) (1)

   (Agriculture - Exceptional measures concerning the release of out-of-quota sugar on the Union market and opening a tariff quota - Action for annulment - Regulatory act entailing implementing measures - Lack of individual concern - Inadmissibility - Action for damages)
   2013/C 225/155
   Language of the case: English

      Parties

      Applicants: T&L Sugars Ltd (London, United Kingdom); and Sidul Açúcares, Unipessoal Lda (Santa Iria de Azóia, Portugal) (represented by: D. Waelbroeck, lawyer, and D. Slater, Solicitor)

      Defendant: European Commission (represented: initially by P. Rossi and A. Demeneix, subsequently by P. Rossi, A. Demeneix and N. Donnelly, and lastly by P. Rossi and P. Ondrůšek, acting as Agents)

      Interveners in support of the defendant: Council of the European Union (represented by: E. Sitbon and A. Westerhof Löfflerová, acting as Agents); and French Republic, (represented by: G. de Bergues and C. Candat, acting as Agents)

      Re:

   Application for the annulment of Commission Regulation (EU) No 222/2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2010/2011 (OJ 2011 L 60, p. 6), Commission Implementing Regulation (EU) No 293/2011 of 23 March 2011 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy (OJ 2011 L 79, p. 8), Commission Implementing Regulation No 302/2011 of 28 March 2011 opening an exceptional import tariff quota for certain quantities of sugar in the 2010/11 marketing year (OJ 2011 L 81, p. 8), and Commission Implementing Regulation (EU) No 393/2011 of 19 April 2011 fixing the allocation coefficient for the issuing of import licences applied for from 1 to 7 April 2011 for sugar products under certain tariff quotas and suspending submission of applications for such licences (OJ 2011 L 104, p. 39), and claim for compensation for the damage suffered

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action as inadmissible in so far as it seeks the annulment of Commission Regulation (EU) No 222/2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2010/2011, Commission Implementing Regulation (EU) No 293/2011 of 23 March 2011 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy, Commission Implementing Regulation No 302/2011 of 28 March 2011 opening an exceptional import tariff quota for certain quantities of sugar in the 2010/11 marketing year, and Commission Implementing Regulation (EU) No 393/2011 of 19 April 2011 fixing the allocation coefficient for the issuing of import licences applied for from 1 to 7 April 2011 for sugar products under certain tariff quotas and suspending submission of applications for such licences;

               2.

               Dismisses the plea of inadmissibility as regards the claim for compensation for the damage suffered;

               3.

               Reserves the costs.

      (1)  OJ C 232, 6.8.2011.


title: Case C-166/04: Action brought on 2 April 2004 by the Commission of the European Communities against the Hellenic Republic

text:
               12.6.2004

               EN

               Official Journal of the European Union

               C 156/3

         Action brought on 2 April 2004 by the Commission of the European Communities against the Hellenic Republic
   (Case C-166/04)
   (2004/C 156/06)
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 2 April 2004 by the Commission of the European Communities, represented by Maria Patakia and Michel Van Beek, Legal Advisers in its Legal Service.
   The Commission claims that the Court should:

               —

               declare that, by failing to take all the measures necessary for laying down and implementing a cohesive, specific and integrated legal regime capable of ensuring sustainable management and effective protection of Special Protection Area GR2310001 ‘Acheloos Delta, Messolonghi/Aitolikon Lagoon and the estuary of the River Evinos and Echinades Islands’, in the light of the conservation objectives of Directive 79/409/EEC on the conservation of wild birds, (1) the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of that directive;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   In accordance with settled case-law of the Court of Justice of the European Communities, a Member State cannot plead internal circumstances or difficulties to justify its failure to comply with obligations and time-limits flowing from Community law.

      (1)  OJ L 103, 25.4.1979, p. 1.