title: Case C-570/16: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 10 November 2016 — Volker Willmeroth, as owner of TWI Technische Wartung und Instandsetzung Volker Willmeroth e. K. v Martina Broßonn

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/21

         Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 10 November 2016 — Volker Willmeroth, as owner of TWI Technische Wartung und Instandsetzung Volker Willmeroth e. K. v Martina Broßonn
   (Case C-570/16)
   (2017/C 053/28)
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Applicant: Volker Willmeroth, as owner of TWI Technische Wartung und Instandsetzung Volker Willmeroth e. K.

      Defendant: Martina Broßonn

      Questions referred

               1.

               Do Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (1) or Article 31(2) of the Charter of Fundamental Rights of the European Union grant the heir of a worker who died while in an employment relationship a right to financial compensation for the worker’s minimum annual leave prior to his death, which is precluded by Paragraph 7(4) of the Bundesurlaubsgesetz (Federal Law on paid leave), read in conjunction with Paragraph 1922(1) of the Bürgerliches Gesetzbuch (Civil Code)?

               2.

               If the first question is answered in the affirmative:
               Does this also apply where the employment relationship is between two private persons?

      (1)  OJ 2003 L 299, p. 9.


title: Action brought on 8 April 1998 by Compagnie Continentale (France) against the Commission of the European Communities (Case T-61/98)

text:
C 209/40             EN                  Official Journal of the European Communities                                     4.7.98
Ð declare that the applicants are to be admitted to the             Action brought on 8 April 1998 by Compagnie
     tendering procedure in response to an invitation to            Continentale (France) against the Commission of the
     tender by the European Commission for a project                                   European Communities
     financed by the TACIS fund entitled: Russia':                                         (Case T-61/98)
     Promoting Co-operative Ventures by Independent
     Farmers', brief title: Independent Farmers' Co-ops                                     (98/C 209/85)
     (Project No FDRUS 9701).
                                                                                (Language of the case: French)
Ð order the defendant to pay the costs.
                                                                    An action against the Commission of the European
Pleas in law and main arguments adduced in support:                 Communities was brought before the Court of First
                                                                    Instance of the European Communities on 8 April 1998
                                                                    by Compagnie Continentale (France), established at
The applicants are participants in a joint venture under            LabeÁge (France), represented by Patrick Chabrier, of the
Danish law entitled Ecord Consortium for Russian Co-                Paris Bar, with an address for service in Luxembourg at
operation, formed to provide a framework for the                    the Chambers of Ernst Arendt, 8Ð10 Rue Mathias Hardt.
preparation of a tender in response to an invitation to
tender by the European Commission, and, in the event of
a successful tender, to procure technical assistance and            The applicant claims that the Court should:
administration for the project, including certain financial
arrangements.
                                                                    Ð declare that Compagnie Continentale has the requisite
                                                                        legal capacity to bring its action for non-contractual
On 13 March 1998 the applicant Danagro Adviser sent                     liability against the Commission of the European
Ecord's tender by DHL courier to the address given in the               Communities,
Commission's invitation to tender Tacis Procurement
Unit, Rue de la Loi 99, 1040 Brussels'. The tender arrived
                                                                    Ð order the Commission to pay to                  Compagnie
in Brussels on 16 March 1998; the staff of the
                                                                        Continentale the sum of ECU 1 858 987,
Commission signed to acknowledge receipt of it at 8.30
a. m. The deadline for the submission of tenders was
16 March 1998 at 11.00 a. m.                                        Ð order the Commission to pay to Compagnie
                                                                        Continentale interest on those sums at the legal rate,
According to the applicants, by letter of 15 November
1991 DHL had received instructions from the Commission              Ð order the Commission to pay the costs.
to deliver all mail addressed to the Commission to the
central mail office of the European Communities at 1140
Evere, 12 Rue de GeneÁve. The mail office informed DHL              Pleas in law and main arguments adduced in support:
on 16 March after 11.00 a. m. that the consignment from
Danagro had to be delivered directly to Tacis Procurement
Unit. DHL then took the consignment and delivered it                The applicant states that on 27 November 1992 it
directly to Tacis Procurement Unit on 17 March 1998. By             concluded two contracts for the sale of wheat with Vao
letter of 17 March 1998 (contested decision), the                   Exportkhleb, a Russian importer, within the framework of
applicants' tender was rejected on the ground that it was           a medium-term loan granted by the Community to the
submitted late.                                                     Soviet Union and its Republics with a view to financing
                                                                    purchases of supplies of agricultural products. On
                                                                    23 February 1993 the applicant agreed with Exportkhleb
The applicants submit that the contested decision should            new prices for quantities of wheat to be delivered from
be annulled on the grounds of breach of the principles of           28 February 1993. Those agreements, which took the
the protection of legitimate expectations, sound                    form of amendments to the initial contracts, were sent for
administration and the duty of diligence. They argue that           approval to the Commission by the VneshEconomBank of
the Commission acted in breach of the principles of                 Moscow. By letter of 1 April 1993 Mr Steichen, a
natural justice in rejecting their tender. The rules                Member        of    the     Commission,      informed    the
governing the tendering procedure are intended to exclude           VneshEconomBank of the Commission's refusal to
the possibility of collusion between those awarding the             approve the amendments.
contracts and to ensure fair treatment of all candidates.
The rules are not intended to rule out genuine and valid
tenders on the pretext of technical errors which are                The applicant, which has already contested that refusal by
beyond the control of the tenderers. Both the applicants            the Commission in proceedings before the Community
and DHL followed the instructions given to them by the              judicature (1), considers, on the basis of arguments very
Commission. The fact that those instructions did not                similar to those advanced in support of the application for
achieve the desired result is entirely beyond their control.        annulment, that there has been misconduct on the part of
                                                                    the defendant institution. It therefore claims compensation
                                                                    for the damage suffered as a result of the refusal by the
                                                                    Community's financial agent to pay for the supplies of
 ---pagebreak--- 4.7.98                EN                Official Journal of the European Communities                                  C 209/41
wheat delivered by the applicant at the prices agreed in               grounds or by an insufficient statement of grounds. At
February 1993.                                                         no time during the pre-litigation procedure was the
                                                                       applicant informed, either directly or indirectly
(1) Case C-357/93 (subsequently Case T-494/93), OJ C 231,              through her doctor, of the precise medical reasons on
    27.8.1993, p. 10.                                                  which the administrative decision taken with respect
                                                                       to her was based, despite her request for such
                                                                       information, nor, as a consequence, was she in a
                                                                       position to put her point of view on the findings and
                                                                       conclusions of the medical officer and, if necessary, to
                                                                       dispute their substance.
Action brought on 20 April 1998 by Giuliana Gaspari                Ð Infringement of Article 8 of the European Convention
               against the European Parliament                         on Human Rights, in that the applicant never
                        (Case T-66/98)                                 authorised the medical officer of the office responsible
                                                                       for settling claims in Luxembourg to seek the opinion
                         (98/C 209/86)
                                                                       of the doctors expressly mentioned in the explicit
                                                                       decision rejecting her request and, in particular, to
                (Language of the case: French)                         pass on to them any information whatsoever regarding
                                                                       her state of health.
An action against the European Parliament was brought
before the Court of First Instance of the European
Communities on 20 April 1998 by Giuliana Gaspari
residing in Sandweiler (Luxembourg), represented by Jean
NoeÈl Louis, Ariane Tornel and FrancËoise Parmentier, of
the Brussels Bar, with an address for service in                   Action brought on 20 April 1998 by Theodore
Luxembourg at the offices of Fiduciaire Myson SARL, 30,            Giannakopoulos against the Commission of the European
Rue de Cessange.                                                                            Communities
                                                                                (Case T-67/98)
The applicant claims that the Court should:                                                (98/C 209/87)
                                                                                (Language of the case: French)
Ð annul the decision of 26 August 1997 by the office
     responsible for settling claims not to grant to the
     applicant the prior authorisation necessary for               An action against the Commission of the European
     reimbursement of the expenses of the treatment at a           Communities was brought before the Court of First
     spa prescribed by her doctor,                                 Instance of the European Communities on 20 April 1998
                                                                   by Theodore Giannakopoulos, residing in Brussels,
                                                                   represented by Jean NoeÈl Louis, VeÂronique Leclercq,
Ð order the defendant to pay the costs.                            Ariane Tornel and FrancËoise Parmentier, of the Brussels
                                                                   Bar, with an address for service in Luxembourg at the
                                                                   offices of Fiduciaire Myson SARL, 30 Rue de Cessange.
Pleas in law and main arguments adduced in support:
                                                                   The applicant claims that the Court should:
Between 1990 and 1995 the applicant underwent six
courses of treatment at a spa because of her health
problems. On 8 March 1996 she submitted a request for              Ð annul the decision of the Commission not to take
prior authorisation for a further course of treatment at a             account of medical certificates justifying the absence
spa. Although that treatment had been deemed to be                     of the applicant on the grounds of sickness from
necessary and indispensible, her request was refused                   17 July to 30 September 1997,
without any grounds being given. On 5 June 1997 the
applicant submitted a further request for prior
                                                                   Ð annul the decision of 12 May 1997, and, as far as
authorisation on the basis of a medical certificate of 3 June
                                                                       necessary, that of 18 April of that year, granting the
1997 from her rheumatologist. By the contested decision
                                                                       applicant leave on personal grounds from 1 August to
the office responsible for settling claims refused to grant
                                                                       30 September 1997,
the prior authorisation necessary for the reimbursement of
the expenses arising from this.
                                                                   Ð order the Commission to pay      the applicant the salary
                                                                       unlawfully withheld since 1     August 1997 together
She puts forward the following pleas in support of her                 with interest on the amount    in arrears calculated at
claims:                                                                8 % per annum from the         date due until actual
                                                                       payment,
Ð Violation of her right to a fair hearing in that the
     contested decision is vitiated by failure to state any        Ð order the defendant to pay the costs.


title: Action brought on 5 December 1996 by the Commission of the European Communities against Ireland (Case C-392/96)

text:
No C 40/ 12            1 EN                   Official Journal of the European Communities                                          8 . 2 . 97
      automatically and without the institution of default               The applicant claims that the Court should :
     proceedings, begins to accrue as soon as the statutory
      time-limit for reimbursement has expired ?
                                                                         — declare that, by failing to adopt all the necessary
                                                                               measures to ensure the correct transposition of
(') OJ No L 145 , 13 . 6 . 1977, p . 2 .                                       Council Directive 85/337/EEC (') of 27 June 1985 on
                                                                               the assessment of the effects of certain public and
                                                                               private projects on the environment, Ireland has failed
                                                                               to fulfil its obligations under that Directive and in
                                                                               particular Article 12 thereof and under the Treaty,
Appeal brought on 4 December 1996 by Compagnie
                                                                         — order Ireland to pay the costs .
Continentale (France) against the judgment delivered on
24 September 1996 by the Third Chamber of the Court of
First Instance of the European Communities in Case T                    Pleas in law and main arguments adduced in support:
494/93 between Compagnie Continentale (France ) and the
          Commission of the European Communities
                                                                         Article 4 (2) of the Directive and Annex II
                         ( Case C-391 /96 P
                              ( 97/C 40/24 )                             In establishing criteria/thresholds for determining whether
                                                                         or not an environmental impact assessment ('EIA') is
An appeal against the judgment delivered on 24 September                 required for an individual project in project classes
                                                                         Annex II . 1 ( b ) ('projects for the use of uncultivated land
1996 by the Third Chamber of the Court of First Instance
                                                                         or semi-natural areas for intensive agriculture'), Annex
of the European Communities in Case T-494/93 between
                                                                         II . 2 ( a ) (' extration of peat') and Annex II . 1 ( d ) (' initial
Compagnie Continentale ( France ) and the Commission of
the European Communities was brought before the Court                    afforestation where this may lead to adverse ecological
                                                                         changes and land reclamation for the purposes of
of Justice of the European Communities on 4 December
                                                                         conversion to another type of land use '), there is a
1996 by Compagnie Continentale ( France ), represented by
                                                                         particular need to ensure that areas of importance for
Patrick Chabrier, of 15 Rue Toepffer, Geneva .
                                                                         nature conservation are satisfactorily taken into account .
                                                                         The Commission would contend that, globally considered,
The appellant claims that the Court should :                             the Irish system of thresholds for these project classes does
                                                                         not satisfactorily take such areas into account for a
— set aside the judgment of 24 September 1996 declaring                  number of reasons .
      Compagnie Continentale's action for annullment of
      the Commission's decision of 1 April 1992                          First, the thresholds draw no distinction between areas
      inadmissible ,
                                                                         which have recognized importance and value for nature
                                                                         conservation and areas which do not .
— order the Commission to pay the costs .
                                                                         Second, the thresholds do not take account of the fact that
Pleas in law and main arguments adduced in support:                      areas of importance and value for nature conservation will
                                                                         often be relatively small in relation to the thresholds .
The pleas in law and main arguments are the same as
those in Case C-386/96 P (').
                                                                         Third, the thresholds do not take into account the absence
                                                                         in Ireland of other mechanisms which might obviate the
 (') See p. 10 of this Official Journal .                                need for an EIA .
                                                                         Fourth, the thresholds fail to take any or any adequate
                                                                          account of the fact that, incrementally or cumulatively,
                                                                         projects of these classes may create significant
                                                                         environmental effects .
Action brought on 5 December 1996 by the Commission
         of the European Communities against Ireland
                           ( Case C-392/96 )                              Article 2 (3): Exemptions
                               ( 97/C 40/25 )
                                                                          Irish legislation provides for an exemption formula
                                                                          entitling the Minister with powers under the relevant
 An action against Ireland was brought before the Court of                enactment to dispense with the requirement of an EIA
Justice of the European Communities on 5 December                         where he is satisfied that this is warranted by exceptional
 1996 by the Commission of the European Communities,                      circumstances . This exemption formula does not oblige
 represented by Mr Richard Wainwright, principal legal                    the Minister concerned to consider whether another form
 adviser, acting as Agent, with an address for service in                 of assessment would be appropriate and whether the
 Luxembourg at the office of Mr Carlos Gomez de la Cruz,                  information thus collected should be made available to the
 member of the Legal Service , Centre Wagner.                             public, as stipulated under Article 2 ( 3 ) ( a ) and ( b ) of the
 ---pagebreak--- 8 . 2 . 97               I hN 1                Official Journal of the European Communities                                      No C 40/ 13
Directive . Furthermore , there is no provision which would                          Directive ') (') to dismiss a female employee, at any
require the Minister concerned to inform the Commission                              time during her pregnancy, as a result of absence
( Article 2 ( 3 ) ( c ) of the Directive ).                                          through illness arising from that pregnancy ?
Article 5 : Information to be supplied by the developer                        ( b ) Does it make any difference to the answer given to
                                                                                Question 1 ( a ) that the employee was dismissed in
                                                                                pursuance of a contractual provision entitling the
There is nothing in the Irish legislation that indicates that                        employer to dismiss employees, irrespective of
a decision-maker, before restricting a demand to Article                             gender, after a stipulated number of weeks of
5 ( 2 ), mandatory information only, should consider the                             continued absence ?
relevance or reasonableness of asking for Annex III
optional information . It is the Commission 's contention
that, before so restricting the demand, the decision-maker                2 . ( a ) Is it contrary to Articles 2 ( 1 ) and 5 ( 1 ) of the
should apply the Article 5 ( 1 ) test as to the relevance and/                       Equal Treatment Directive to dismiss a female
or reasonableness of asking for Annex III information and                            employee as a result of absence through illness
should have concluded that either the information was
                                                                                arising from pregnancy who does not qualify for
irrelevant (paragraph ( a ) of Article 5 ( 1 )), or the demand                       the right to absent herself from work on account
unreasonable ( paragraph ( b ) of Article 5 ( 1 )). As it stands ,                   of pregnancy or childbirth for the period specified
the Irish legislation leaves the decision-maker entirely free                        by national law because she has not been
to ignore the optional information as a matter of general                            employed for the period imposed by national law,
practice .                                                                           where dismissal takes place during that period ?
Article 7: Information to the other Member States                              ( b ) Does it make any difference to the answer given to
                                                                                Question 2 ( a ) that the employee was dismissed in
The Irish legislation provides a mechanism whereby local                             pursuance of a contractual provision entitling the
authorities ( the decision-makers ) should notify the Irish                          employer to dismiss employees , irrespective of
Minister for the Environment of an application likely to                             gender, after a stipulated number of weeks of
                                                                                continued absence ?
have significant effects on the environment in another
Member State. It then allows the Minister to require the
local authority to furnish him with such information and                  H OJ No L 39 , 14 . 2 . 1976 , p . 40 .
documents as he may specify. However, this latter power
can only be exercised where the other Member State has
sought to be consulted . Furthermore , there appears to be
no explicit duty on the Minister to furnish information to
the other Member State .
 (') OJ No L 175 , 5 . 7 . 1985 , p . 40 .                                Reference for a preliminary ruling from the Landgericht
                                                                          Trier by order of that court of 29 November 1996 in the
                                                                          case of Caisse de Pension des Employes Prives v. 1. Dieter
                                                                          Korde , 2 . Rainer Kordel and 3 . Frankfurter Alii an z
                                                                                Versicherungs AG
                                                                                ( Case C-397/96 )
Reference for a prelimininary ruling by the House of                                                     ( 97/C 40/27 )
 Lords, by order of that court of 28 November 1996, in
     the case of Mrs Mary Brown against Rentokil Limited
                             ( Case C-394/96 )                            Reference has been made to the Court of Justice of the
                                ( 97/C 40/26 )                            European Communities by an order of the Landgericht
                                                                          Trier ( Trier Regional Court ) of 29 November 1996 , which
                                                                          was received at the Court Registry on 12 December 1996 ,
 Reference has been made to the Court of Justice of the                   for a preliminary ruling in the case of Caisse de Pension
 European Communities by an order of the House of Lords                   des Employes Prives v. 1 . Dieter Kordel , 2 . Rainer Kordel
 of 28 November 1996 , which was received at the Court                    and 3 . Frankfurter Allianz Versicherungs AG on the
 Registry on 9 December 1996, for a preliminary ruling in                  following question :
 the case of Mrs Mary Brown against Rentokil Limited, on
 the following questions :
                                                                           How is Article 93 ( 1 ) ( a ) of Regulation ( EEC ) No 1408/71 (')
                                                                           to be interpreted ? Does recognition by the Member States
  1 . a ) Is it contrary to Articles 2 ( 1 ) and 5 ( 1 ) of Council        extend      also to the definition        of the content of the
           Directive 76/207/EEC of 9 February 1976 on the                  subrogated claim in another Member State ( in this case ,
           implementation of the principle of equal treatment              the second sentence of Article 232 of the Luxembourg
           for men and women as regards access to                          Code des Assurances Sociales in conjunction with the
           employment, vocational training and promotion,                  relevant Grand Ducal Regulation, under which the claim
           and working conditions ('the Equal Treatment                    to which the pension fund is subrogated is to amount to


title: Case C-14/08: Judgment of the Court (Third Chamber) of 25 June 2009 (reference for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 5, San Javier — Spain) — Roda Golf & Beach Resort SL (Judicial cooperation in civil matters — Preliminary references — Jurisdiction of the Court — Definition of dispute — Regulation (EC) No 1348/2000 — Service of extrajudicial documents in the absence of legal proceedings — Notarial act)

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/7

         Judgment of the Court (Third Chamber) of 25 June 2009 (reference for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 5, San Javier — Spain) — Roda Golf & Beach Resort SL
   (Case C-14/08) (1)

   (Judicial cooperation in civil matters - Preliminary references - Jurisdiction of the Court - Definition of ‘dispute’ - Regulation (EC) No 1348/2000 - Service of extrajudicial documents in the absence of legal proceedings - Notarial act)
   2009/C 205/10
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia e Instrucción No 5, San Javier

      Parties to the main proceedings

   Roda Golf & Beach Resort SL

      Re:

   Reference for a preliminary ruling — Juzgado de Primera Instancia e Instrucción No 5, San Javier — Interpretation of Article 16 of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 2000 L 160, p. 37) — Service of extrajudicial documents exclusively by and to private persons using the physical and personal resources of courts of the European Union outside of any court proceedings

      Operative part of the judgment

   The service of a notarial act, in the absence of legal proceedings, such as that at issue in the main proceedings, falls within the scope of Council Regulation (EC) No 1348/2000 of 29 May 2002 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.

      (1)  OJ C 92, 12.04.2008.


title: Case C-533/16: Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 20 October 2016 — Volkswagen AG v Finančné riaditeľstvo Slovenskej republiky

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/5

         Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 20 October 2016 — Volkswagen AG v Finančné riaditeľstvo Slovenskej republiky
   (Case C-533/16)
   (2017/C 022/08)
   Language of the case: Slovak

      Referring court

   Najvyšší súd Slovenskej republiky

      Parties to the main proceedings

      Applicant: Volkswagen AG

      Defendant: Finančné riaditeľstvo Slovenskej republiky

      Questions referred

               1.

               Must Directive 2008/9 (1) and the right to a tax refund be interpreted to the effect that the cumulative satisfaction of two conditions is required to exercise the right to a VAT refund, namely:

                           (i)

                           the supply of the goods or service and

                           (ii)

                           the inclusion of VAT on the invoice by the supplier?

                     In other words, is it possible for a taxable person who has not been charged VAT on an invoice to claim a tax refund?

               2.

               Is it in accordance with the principle of proportionality or VAT fiscal neutrality for the time-limit for the tax refund to be calculated from a point at which not all the substantive law conditions required to exercise the right to a tax refund were satisfied?

               3.

               Are Articles 167 and 178(a) of the VAT Directive, in the light of the principle of fiscal neutrality, to be interpreted to the effect that, in circumstances such as those of the present case, and assuming that the other substantive law and procedural law conditions required to claim a right to a tax deduction are satisfied, they preclude an approach by the tax authorities which refuses the taxable person the right, claimed within the time-limit under Directive 2008/9, to be refunded VAT which was charged to it by the supplier on the invoice and removed by the supplier before the expiry of the limitation period for relying upon the right under national law?

               4.

               Did the Slovak tax authorities, in the light of the principle of neutrality and the principle of proportionality, which are the fundamental principles of the common system of VAT, exceed the limits of what was necessary for achieving the objective defined by the VAT Directive when they refused the taxable person the right to a refund of the deducted tax on the ground that the limitation period laid down by national law for claiming a tax refund had expired, even though the taxable person could not exercise its right to a tax refund within that period and even though the tax was correctly collected and the risk of tax evasion or non-payment of the tax had been completely excluded?

               5.

               May the principles of legal certainty, legitimate expectations and the right to good administration under Article 41 of the Charter of Fundamental Rights of the European Union be interpreted as precluding an interpretation of the national legislation under which, for the purposes of observance of the time-limit for claiming a tax refund, the time of the decision of the administrative authority on the tax refund is decisive, and not the time at which the tax refund is claimed by the taxable person?

      (1)  Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ 2008 L 44, p. 23).


title: Case T-55/10: Action brought on 10 February 2010 — SP v Commission

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/44

         Action brought on 10 February 2010 — SP v Commission
   (Case T-55/10)
   2010/C 80/70
   Language of the case: Italian

      Parties

      Applicant: SP SpA in liquidazione (Brescia, Italy) (represented by: G. Belotti, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission’s decision of 8 December 2009 amending the earlier decision — C(2009) 7492 final — adopted by the Commission on 30 September 2009;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   By decision of 8 December 2009 (‘the contested decision’), the Commission amended its earlier decision — C(2009) 7492 final of 30 September 2009 — by which it had accused a number of companies, including the applicant, of participating in an alleged cartel. By the contested decision, the Commission acknowledged that the decision of 30 September 2009‘referred to an annex which set out tables illustrating the price movements for concrete reinforcing bars during the time when the cartel was in operation’ and that ‘that annex was not included in the decision adopted on 30 September 2009’, and decided to amend that decision in order to incorporate within it the tables annexed to the contested decision.
   In support of its action, the applicant puts forward the following pleas in law:

               1.

               Illegality of the subsequent rectification of a measure vitiated by a grave defect: the Commission is not empowered to remedy after the event a decision which, being clearly incomplete at the time of adoption, is manifestly invalid; that constitutes a particularly grave circumstance which, as such, cannot be remedied.

               2.

               Incorrect legal basis cited: the Commission cited as the legal basis for the contested measure Article 65 CS and Regulation (EC) No 1/2003, (1) which are manifestly inappropriate as legal bases for pursuing the aim which the Commission had set itself (that is to say, for supplementing/amending one of its earlier decisions, the text of which had been incomplete). Accordingly, the second decision, which is contested in these proceedings, must be annulled because of the clear lack of an appropriate legal basis.

         The applicant also alleges breach of the principle of sound administration.

      (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 T-91/16: Action brought on 29 February 2016 — Italy v Commission

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/42

         Action brought on 29 February 2016 — Italy v Commission
   (Case T-91/16)
   (2016/C 136/58)
   Language of the case: Italian

      Parties

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

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should annul, pursuant to Article 264 TFEU, Commission Decision C(2015)9413 of 17 December 2015, notified on 18 December 2015, concerning the reduction of the contribution from the European Social Fund for the Sicily Operational Programme (Programma Operativo Sicilia) which forms part of the Community Support Framework for Community structural assistance in the regions falling under Objective 1 in Italy (POR Sicilia 2000-2006), and, consequently, find that the final request for payment presented by the Italian authorities should be upheld in its entirety by the Commission. It also asks that the Commission be ordered to pay the costs of the present proceedings.

      Pleas in law and main arguments

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

               1.

               The decision was adopted as a result of an unlawful duplication of the controls made pursuant to Article 30 of Council Regulation (EC) No 1260/99 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1), which were re-opened and repeated in the audit of 2008 despite those controls having been undertaken and concluded, at least in so far as all of the expenditure certified on 31 December 2006 is concerned, in the audits of 2005 and 2006.

               2.

               The contested decision is vitiated by an infringement of the principle of proper administration because the Commission communicated the results of the 2008 audit with a delay of 18 months after the task had been completed.

               3.

               The contested decision misrepresents the facts because it ignores the fact that, in the period following the audits of 2005 and 2006, the error rate literally collapsed from 53,13 % to 3,05 % in 2007, and to 1,45 % in 2008 and 2009.

               4.

               The contested decision infringes the principle of proportionality because it fails to take account of the fact that the certified expenditure for the three years 2007 to 2009, affected by a minimal error rate, was equal to approximately half the total value of the programme covered by the ESF.

               5.

               The contested decision is unfounded in fact and in law, because it extends to the following three years the finding of systematic deficiencies which arose and were resolved in the period up to 31 December 2006, without undertaking any specific verification in that regard.

               6.

               The contested decision is also vitiated by a defective statement of reasons. According to the applicant, that decision applies the extrapolation technique, which consists in extending to non-controlled expenditure the error rate found for controlled expenditure, even though that technique is allowed only by regulations relating to the 2007-2013 programme; in any event, for the years 2007-2009, it assumed an error rate of 8,39 %, even though the Italian authorities had explained that the sample referred to in Article 10 of Commission Regulation (EC) No 438/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the management and control systems for assistance granted under the Structural Funds (OJ 2001 L 63, p. 21) lacked balance because it had not been compiled randomly, like a genuine statistical sample, but focussed intentionally on projects that presented risk factors.


title: Case C-175/01 P: Appeal brought on 23 April 2001 by British Coal Corporation against the judgment delivered on 7 February 2001 by the Second Chamber of the Court of First Instance of the European Communities in case T-89/98 between National Association of Licenced Opencast Operators (NALOO) and Commission of the European Communities, supported by British Coal Corporation, International Power plc (formerly National Power plc) and PowerGen (UK) plc (formerly PowerGen plc)

text:
14.7.2001              EN                     Official Journal of the European Communities                                         C 200/43
There was, in any event, no power under Article 63(1) CS                 Pleas in law and main arguments
either to investigate, in or after 1994, an allegation of
discrimination in the pre-1990 period, or to take action in
respect of it.
                                                                         BCC relies on the following grounds of appeal.
If either or both of those pleas in law is correct, it follows that
the 1998 decision was valid and that the judgment of the CFI             (1) The Court of First Instance erred in law in holding that
must be quashed. In the event that both those pleas in law are                 the 1994 Complaint was an expansion of the 1990
rejected, IP submits, in the alternative to its first two pleas:               Complaint and that therefore the Commission must be
                                                                               treated as having received a single Complaint.
that even if the Commission had the power to investigate the             (2) The Court of First Instance erred in law in holding that
1994 complaint, it was under no obligation to do so; and                       NALOO had not failed to avail itself of the legal remedies
that the 1998 decision was in any event adequately reasoned.                   available to it to ensure protection of its rights.
                                                                         (3) The Court of First Instance erred in law in holding that
(1) OJ C 234, 25.7.98, p. 36.
                                                                               an investigation of NALOO’s complaint with regard
                                                                               to the years 1986/87 to 1989/1990 was in no way
                                                                               incompatible with the principle of legal certainty.
                                                                         (4) Whether or not the 1991 Complaint and the 1994
                                                                               Complaint should be treated as a single Complaint, the
                                                                               Court of First Instance erred in law in holding that the
                                                                               matters complained of were existing infringements for
                                                                               the purposes of Article 66(7) ECSC and that the Com-
                                                                               mission was therefore empowered to act in relation to
Appeal brought on 23 April 2001 by British Coal Corpor-                        the position pre-April 1990.
ation against the judgment delivered on 7 February 2001
by the Second Chamber of the Court of First Instance of
                                                                         (5) The Court of First Instance erred in law in holding that
the European Communities in case T-89/98 (1) between                           the effect of the judgment of the Court of Justice in
National Association of Licenced Opencast Operators
                                                                               Hopkins was to empower the Commission to investigate
(NALOO) and Commission of the European Communities,
                                                                               that part of NALOO’s Complaint which alleged against
supported by British Coal Corporation, International                           BCC that it had applied unreasonable levels of royalty in
Power plc (formerly National Power plc) and PowerGen
                                                                               the years 1986/87 to 1989/90.
               (UK) plc (formerly PowerGen plc)
                                                                         (6) The Court of First Instance erred in law in holding
                        (Case C-175/01 P)                                      that since the Commission had the power to consider
                                                                               NALOO’s complaint relating to infringements alleged to
                                                                               have occurred in the years 1986/87 to 1989/90, the
                         (2001/C 200/79)                                       Commission was bound to undertake that examination.
An appeal against the judgment delivered on 7 February 2001              (7) The Court of First Instance erred in law in holding that the
by the Second Chamber of the Court of First Instance of the                    Commission was empowered to adopt recommendations
European Communities in case T-89/98 between National                          under Article 66(7) in respect of alleged infringements
Association of Licensed Opencast Operators (NALOO) and                         occurring in 1986/87 to 1989/1990 and in failing to
Commission of the European Communities, supported by                           hold that, contrary to the contention of NALOO, the
British Coal Corporation, International Power plc (formerly                    Commission had no power to take a decision under
National Power plc) and PowerGen (UK) plc (formerly Power-                     Article 66(7) ECSC.
Gen plc), was brought before the Court of Justice of the
European Communities on 23 April 2001 by British Coal                    (8) The Court of First Instance erred in laws in failing to hold
Corporation, having its registered office in London, represented               that Article 65 ECSC has no application to the alleged
by D. Vaughan QC, D. Lloyd Jones QC and C. Mehta, solicitor.                   conduct of BCC in relation to the level of royalty.
The Appellant claims that the Court should:                              (9) The Court of First Instance erred in law in holding that
                                                                               the 1998 Decision was vitiated by a failure to give
(1) set aside the judgment of the Court of First Instance in                   reasons.
      Case T-89/98 dated 7 February 2001;
(2) dismiss by way of final judgment NALOO’s Application
      registered with the Court of First Instance on 8 June              (1) OJ C 234, 25.7.98, p. 36.
      1998;
(3) order that NALOO and/or the Commission pay BCC’s
      costs of the proceedings in Case T-89/98 and in this case.


title: Action brought on 6 February 1997 by the Hellenic Republic against the Commission of the European Communities (Case C-46/97)

text:
No C 142/8            EN                   Official Journal of the European Communities                                    10 . 5 . 97
                  ORDER OF THE COURT                                       the clearance of the accounts presented by the
                        ( First Chamber)                                   Member States in respect of the expenditure for 1992
                                                                           of the Guarantee Section of the European Agricultural
                       of 6 March 1997                                     Guidance and Guarantee Fund ( EAGGF ) and in
in Case C-303/96 P: Giorgio Bernardi v. European                           respect of certain expenditure for 1993 ('), so far as
                          Parliament (M                                    concerns the chapters which relate to financial
                                                                           corrections chargeable to the Hellenic Republic for
(Appeal — European Ombudsman — Nominations —                               olive oil, wine, cotton and tobacco,
Appointment procedure — Action for annulment —
      Appeal manifestly inadmissible and unfounded)
                          ( 97/C 142/ 16 )
                                                                      — order the Commission to remove the qualification
                                                                           made by it in respect of the clearance of accounts for
                                                                           1990 and to refund to the applicant the deducted sum
                (Language of the case: French)                             of Dr 4 500 000 000 .
  (Provisional translation; the definitive translation will be        Pleas in law and main arguments adduced in support:
         published in the European Court Reports)
In Case C-303/96 P: Giorgio Bernardi ( Lawyer: Giancarlo              In its application, the Hellenic Republic alleges numerous
Lattanzi ) — appeal against the judgment of the Court of              errors of fact in relation to each of the products, olive oil,
First Instance of 11 July 1996 in Case T-146/95 Bernardi              wine, cotton and tobacco, and misinterpretation of the
v. Parliament, not yet published in the European Court                regulations . It also alleges that the Commission misused
Reports, seeking to have that judgment set aside, the other           its powers or exceeded the limits of its discretion.
party to the proceedings being the European Parliament
( Agent: Ezio Perillo, assisted by Denis Waelbroeck ) — the
Court ( First Chamber), composed of: L. Sevon, President              As regards the qualification made by the Commission, the
of the Chamber, D. A. O. Edward and M. Wathelet                       applicant alleges that the Commission was obliged to
( Rapporteur ), Judges; D. Ruiz-Jarabo Colomer, Advocate             make immediate final payment of the corresponding
                                                                      financial correction with the clearance of the accounts for
General; R. Grass, Registrar, has made an order on
                                                                      1992 .
6 March 1997, in which it:
1 . dismisses the appeal;                                             H OJ No L 323 , 13 . 12 . 1996 , p . 26 .
2 . orders Mr Bernardi to pay the costs.
H OJ No C 40, 8 . 2 . 1997.
                                                                      Action brought on 11 February 1997 by the Italian
                                                                      Republic against the Commission of the European
                                                                                Communities
                                                                                ( Case C-59/97 )
Action brought on 6 February 1997 by the Hellenic
                                                                                ( 97/C 142/18
Republic against the Commission of the European
                           Communities
                        ( Case C-46/97 )
                                                                      An action against the Commission of the European
                          ( 97/C 142/17)                              Communities was brought before the Court of Justice of
                                                                      the European Communities on 11 February 1997 by the
                                                                      Italian Republic, represented by Gianni De Bellis, Avvoca
An action against the Commission of the European                      to dello Stato, with an address for service in Luxembourg
Communities was brought before the Court of Justice of                at the Italian Embassy, 5 Rue Marie-Adelaide .
the European Communities on 6 February 1997 by the
Hellenic Republic, represented by Ioannis-Konstantinos
Khalkias, Member of the State Legal Service, and                      The applicant claims that the Court should:
Panagiotis Milonopoulos, Legal Adviser in the Special
Department for Community Legal Affairs, with an address
for service in Luxembourg at the Greek Embassy, 117 Val               — annul the decision of the Commission of 20 November
Sainte-Croix.                                                              1996 No C(96)3274 final in so far as it refuses to
                                                                           allow charging to the EAGGF of Lit 11 934 331 913
The applicant claims that the Court should:                                in the clearance of accounts submitted by the Italian
                                                                           Republic in respect of expenditure in 1992,
— annul Commission Decision E ( 96 ) 3274 of
    20 November 1996 amending Decision 96/31 1/EC on                  — order the defendant to pay the costs of proceedings .


title: Case F-98/07: Judgment of the Civil Service Tribunal (Second Chamber) of 29 January 2009 — Petrilli v Commission (Staff cases — Auxiliary contract staff — Admissibility — Act causing adverse effect — Article 3c and Article 88 of the Conditions of employment of other servants — Duration of the contract — Article 3(1) of the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services — Legality)

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/37

         Judgment of the Civil Service Tribunal (Second Chamber) of 29 January 2009 — Petrilli v Commission
   (Case F-98/07) (1)

   (Staff cases - Auxiliary contract staff - Admissibility - Act causing adverse effect - Article 3c and Article 88 of the Conditions of employment of other servants - Duration of the contract - Article 3(1) of the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services - Legality)
   2009/C 102/54
   Language of the case: French

      Parties

      Applicant: Nicole Petrilli (Woluwé-Saint-Étienne,Belgium) (represented by: J.-L. Lodomez, lawyer)

      Defendant: Commission of the European Communities (represented by: D. Martin and B. Eggers, Agents)

      Re:

   First, annulment of the decision of the appointing authority rejecting, pursuant to the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services, the applicant's request for renewal of her contract as a member of contract staff and, second, an action for damages

      Operative part of the judgment

   The Tribunal:

               1.

               annuls the decision of the Commission of the European Communities of 20 July 2007 rejecting Ms Petrilli's request for an extension of her contract as an auxiliary member of contract staff;

               2.

               orders the parties to transmit to the Tribunal, within three months of delivery of the present interim judgment, either the amount of the monetary compensation agreed between the parties in respect of the illegality of the decision of 20 July 2007 or their conclusions, with supporting figures, as to that amount;

               3.

               reserves the costs.

      (1)  OJ C 297 of 8.12.2008, p. 48.


title: Case T-448/14: Action brought on 17 June 2014 — Hitachi Metals v Commission

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/48

         Action brought on 17 June 2014 — Hitachi Metals v Commission
   (Case T-448/14)
   2014/C 282/62
   Language of the case: English

      Parties

      Applicant: Hitachi Metals Ltd (Tokyo, Japon) (represented by: P. Crowther and C. Drew, Solicitors)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the Commission Decision C(2014) 2139 of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 EEA in case AT.39610 — Power Cables (the ‘Decision’);

               —

               In the alternative, partially annul the Decision and substantially reduce the amount of the fine imposed on J-Power Systems and the applicant; and

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Decision must be annulled because the Commission has failed to prove a single complex continuous infringement involving an agreement between Asian and European producers to stay out of each other’s home territories and an agreement to allocate among European companies projects within the European Economic Area (EEA).

               2.

               Second plea in law, alleging that the Commission has committed errors in fact and in law in the application of Article 101 TFEU, in so far as the Decision fails to prove to the required legal standard the involvement of J-Power Systems Corporation over the entire duration of the infringement.

               3.

               Third plea in law, alleging that the Commission has committed errors of law and assessment in calculating the fine imposed on J-Power Systems Corporation, as such fine does not reflect the gravity of the infringement and J-Power Systems Corporation’s substantially limited role for a significant duration thereof.

               4.

               Fourth plea in law, alleging that the Decision must be annulled in its entirety to the extent that it relies to a decisive extent on evidence that the Commission illegally seized during inspections at the premises of Nexans. Such evidence is essential to the Commission’s findings and in particular to the establishment of a single and continuous nature of the infringement as well as to the establishment of an allocation between European companies of projects within the European Economic Area (EEA).


title: Joined Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01: Judgment of the Court of First Instance of 9 September 2009 — Diputación Foral de Álava and Others v Commission (State aid — Tax advantages granted by a territorial entity within a Member State — Tax credit of 45 % of the amount of investments — Decisions declaring aid schemes incompatible with the common market and requiring recovery of aid paid out — Trade association — Admissibility — Classification as new aid or as existing aid — Principle of the protection of legitimate expectations — Principle of legal certainty — Principle of proportionality)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/19

         Judgment of the Court of First Instance of 9 September 2009 — Diputación Foral de Álava and Others v Commission
   (Joined Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01) (1)

   (State aid - Tax advantages granted by a territorial entity within a Member State - Tax credit of 45 % of the amount of investments - Decisions declaring aid schemes incompatible with the common market and requiring recovery of aid paid out - Trade association - Admissibility - Classification as new aid or as existing aid - Principle of the protection of legitimate expectations - Principle of legal certainty - Principle of proportionality)
   2009/C 256/33
   Language of the case: Spanish

      Parties

      Applicants in Case T-227/01: Territorio Histórico de Álava — Diputación Foral de Álava (Spain); and Comunidad Autónoma del País Vasco — Gobierno Vasco (Spain) (represented initially by: R. Falcón Tella, and subsequently by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers)

      Applicants in Case T-228/01: Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (Spain); and Comunidad autónoma del País Vasco — Gobierno Vasco (represented initially by: R. Falcón Tella, and subsequently by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers)

      Applicants in Case T-229/01: Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (Spain); and Comunidad autónoma del País Vasco — Gobierno Vasco (represented initially by: R. Falcón Tella, and subsequently by M. Morales Isasi and I. Sáenz-Cortabarría Fernández, lawyers)

      Applicant in Cases T-265/01, T-266/01 and T-270/01: Confederación Empresarial Vasca (Confebask) (Bilbao, Spain) (represented initially by: M. Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers)

      Defendant: Commission of the European Communities (represented initially by: J. Buendía Sierra, and subsequently by F. Castillo de la Torre and C. Urraca Caviedes, acting as Agents)

      Interveners in support of the applicants in Case T-227/01: Cámara Oficial de Comercio e Industria de Álava (Spain) (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers); and Confederación Empresarial Vasca (Confebask) (Bilbao) (represented initially by: M. Araujo Boyd and R. Sanz, and subsequently by Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers)

      Interveners in support of the applicants in Case T-228/01: Cámara Oficial de Comercio, Industria y Navegación de Vizcaya (Spain) (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers); and Confederación Empresarial Vasca (Confebask) (Bilbao) (represented initially by: M. Araujo Boyd and R. Sanz, and subsequently by Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers)

      Interveners in support of the applicants in Case T-229/01: Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa (Spain) (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers); and Confederación Empresarial Vasca (Confebask) (Bilbao) (represented initially by: M. Araujo Boyd and R. Sanz, and subsequently by Araujo Boyd, L. Ortiz Blanco and V. Sopeña Blanco, lawyers)

      Intervener in support of the defendant: Comunidad Autónoma de la Rioja (Spain) (represented initially by: A. Bretón Rodríguez, J. Criado Gámez and I. Serrano Blanco, lawyers)

      Re:

   Application in Cases T-227/01 and T-265/01 for annulment of Commission Decision 2002/820/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 296, p. 1); application in Cases T-228/01 and T-266/01 for annulment of Commission Decision 2003/27/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Vizcaya in the form of a tax credit amounting to 45 % of investments (OJ 2003 L 17, p. 1), and application in Cases T-229/01 and T-270/01 for annulment of the Commission decision 2002/894/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Guipúzcoa in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 314, p. 26).

      Operative part of the judgment

   The Court:

               1.

               Joins Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 for the purposes of judgment.

               2.

               Dismisses the actions.

               3.

               In Cases T-227/01 to T-229/01:

                           —

                           Orders the Territorio Histórico de Álava — Diputación Foral de Álava, the Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, the Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa and the Comunidad autónoma del País Vasco — Gobierno Vasco to each bear their own costs and to pay the costs of the Commission and the Comunidad autónoma de La Rioja;

                           —

                           Orders the Confederación Empresarial Vasca (Confebask), the Cámara Oficial de Comercio e Industria de Álava, the Cámara Oficial de Comercio, Industria y Navegación de Vizcaya and the Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa to each bear their own costs.

               4.

               In Cases T-265/01, T-266/01 and T-270/01 orders Confebask to bear its own costs and to pay the costs of the Commission and the Comunidad autónoma de La Rioja.

      (1)  OJ C 331, 24.11.2001.


title: Case T-163/07: Action brought on 8 May 2007 — SC Gerovital Cosmetics v OHIM — SC Farmec (GEROVITAL H3 Prof. Dr. A. Aslan)

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/33

         Action brought on 8 May 2007 — SC Gerovital Cosmetics v OHIM — SC Farmec (GEROVITAL H3 Prof. Dr. A. Aslan)
   (Case T-163/07)
   (2007/C 183/65)
   Language in which the application was lodged: English
   Parties

      Applicant: SC Gerovital Cosmetics S.A. (Bucharest, Romania) (represented by: D. Boştinşă, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Farmec S.A. (Cluj-Napoca, Romania)
   Form of order sought

               —

               The invalidation of Decision of 27 February 2007 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trademarks and Designs) in Case R 271/2006-2 — GEROVITAL H3; and subsequently

               —

               the invalidation of Cancellation Division decision of 23 December 2005 in the proceedings for a declaration of invalidity of OHIM reference number 872C 0000986 034, CTM 986034 GEROVITAL H3;

               —

               order that the costs of the proceedings be paid by the defendant.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The Community figurative mark containing word elements ‘GEROVITAL H3 Prof. Dr. A. Aslan’ for goods and services in Class 3 and 42 — application No 986 034

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: Farmec S.A.

      Trade mark right of the party requesting the declaration of invalidity: The figurative national trade mark ‘Gerovital H3 PROF. DR. ANA ASLAN’ for certain goods in Class 3

      Decision of the Cancellation Division: Declared the trade mark invalid in its entirety

      Decision of the Board of Appeal: Dismissed the appeal.

      Pleas in law: Infringement of Articles 52 and 53(2) of Council Regulation No 40/94.
   The applicant considers that the Romanian figurative mark it was partially assigned — with respect to specific products provided in the assignment contract — by the holder of the international and national trade mark registrations is an earlier well known mark enjoying such reputation in more than one Member State. Hence, it claims to be entitled to priority and exclusivity for registration purposes.
   Also, contrary to the rights of the other party to the cancellation and appeal proceedings (hereinafter, ‘Farmec’), the applicant claims to have broader rights over the trade mark, both with regards to the range of cosmetic products it is entitled to produce as to their composition. Based on the assumption that the two companies enjoy equal and distinctive rights over the trademark GEROVITAL H3 Prof. Dr. A. Aslan related to the intensity of protection, the anteriority/precedence aspect referred to by Farmec should have no bearing according to the applicant.
   Finally, the applicant submits that its ownership rights would be seriously affected if faced to the impossibility to acquire international recognition and protection of the rights deriving from the assignment contract, even if it claims to enjoy full rights and protection in Romania.


title: Case T-196/13: Action brought on 5 April 2013 — Nanu-Nana Joachim Hoepp/OHIM — Stal-Florez Botero (la nana)

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/31

         Action brought on 5 April 2013 — Nanu-Nana Joachim Hoepp/OHIM — Stal-Florez Botero (la nana)
   (Case T-196/13)
   2013/C 171/59
   Language in which the application was lodged: English

      Parties

      Applicant: Nanu-Nana Joachim Hoepp GmbH & Co. KG (Bremen, Germany) (represented by: T. Boddien, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Lina M. Stal-Florez Botero (Maarssen, Netherlands)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the Decision of the First Board of Appeal of the Office of Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 January 2013 in case R 300/2012-1, relating to cancellation proceedings No. 000005025 C (Community trademark No. 005205125) between Nanu-Nana Joachim Hoepp GmbH & Co. KG and Lina M. Stal-Florez Botero h.o.d.n. La Nana;

               —

               Order the Defendant to bear the costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘la nana’ for goods of classes 16, 20 and 24 — Community trade mark registration No 5 205 125

      Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

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

      Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Article 8(1)(b), in conjunction with Article 53(1)(a) of Council Regulation No 207/2009

      Decision of the Cancellation Division: Rejected the request for invalidity in its entirety based on Article 57(2) and (3) of Council Regulation No 207/2009

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b), Article 57(2) and (3) and Article 78 (1)(f) of Council Regulation No 207/2009.


title: Case C-165/16: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 21 March 2016 — Toufik Lounes v Secretary of State for the Home Department

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/17

         Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 21 March 2016 — Toufik Lounes v Secretary of State for the Home Department
   (Case C-165/16)
   (2016/C 191/21)
   Language of the case: English

      Referring court

   High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

      Parties to the main proceedings

      Applicant: Toufik Lounes

      Defendant: Secretary of State for the Home Department

      Question referred

   Where a Spanish national and Union citizen:

               i.

               moves to the United Kingdom, in the exercise of her right to free movement under Directive 2004/38/EC (1); and

               ii.

               resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive 2004/38/EC; and

               iii.

               subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and

               iv.

               several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom;

         are she and her spouse both beneficiaries of Directive 2004/38/EC, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?

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

      OJ L 158, p. 77


title: Case C-315/11: Order of the President of the Court of 17 January 2013 (request for a preliminary ruling from the Rechtbank Breda — Netherlands) — Adrianus Theodorus Gerardus Martines van de Ven, Michaele Anna Harriet Tiny can de Ven-Janssen v Koninklijke Luchtvaart Maatschappij NV

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/18

         Order of the President of the Court of 17 January 2013 (request for a preliminary ruling from the Rechtbank Breda — Netherlands) — Adrianus Theodorus Gerardus Martines van de Ven, Michaele Anna Harriet Tiny can de Ven-Janssen v Koninklijke Luchtvaart Maatschappij NV
   (Case C-315/11) (1)

   2013/C 108/37
   Language of the case: Dutch
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 269, 10.9.2011.


title: Action brought on 7 December 1995 by Luigi Ronchi against the Commission of the European Communities (Case T-223/95)

text:
No C 46/ 16           EN                  Official Journal of the European Communities                                      17 . 2 . 96
Instance of the European Communities on 27 November                  Instance of the European Communities on 7 December
1995 by Telecom Italia SpA, whose registered office is in            1995 by Luigi Ronchi, residing in Luxembourg, represented
Turin, represented by Mario Sanino, Mario Siragusa, and              by Jean-Noel Louis, Thierry Demaseure and Ariane Tornel ,
Antonio Lirosi, of the Rome Bar, and Giulio Cesare Rizza of          of the Brussels Bar, with an address for service in
the Siracusa Bar, with an address for service in Luxembourg          Luxembourg at the offices of Fiduciaire Myson Sari, 1 Rue
at the Chambers of Elvinger, Hoss & Prussen .                        Glesener.
The applicant claims that the Court should :
                                                                     The applicant claims that the Court should :
— annul Commission Decision 95/489/EC of 4 October
     1995 concerning the conditions imposed on the second            — annul the decision of the Commission rejecting the
    operator of GSM radiotelephony services in Italy,                     applicant's request for assistance of 30 January 1995 ,
— order the Commission to pay the costs.                             — order the defendant to pay to the applicant the token
                                                                          sum of ECU 1 by way of compensation for the
Pleas in law and main arguments                                           non-material damage suffered as a result of the
                                                                          dereliction of duty committed by it in relation to
In the view of the applicant, the contested decision should be            him,
annulled inasmuch as it infringes the right to a fair hearing of
the applicant, it applies erroneously or wrongly Articles 86
and 90 of the Treaty, it infringes Article 190 of the Treaty         — order the defendant to pay the costs .
and the statement of reasons is manifestly defective with
regard to the operative part of the provision . Moreover, the        Pleas in law and main arguments
corrective measures imposed are unlawful and manifestly
illogical.
                                                                     The applicant states that on 30 January 1 995 he submitted a
In particular, as regards Article 86 of the Treaty, the              request, pursuant to Article 24 of the Staff Regulations of
applicant criticizes the erroneous application of the concept        officials, for the assistance of the Commission in restoring
of 'single economic entity', the illogical definition of the         his reputation and good name in consequence of the
relevant market and the erroneous reference by the                   publication of a book containing certain statements about
 Commission to the alleged indications revealing the                 him which he regards as libellous and defamatory . By note
dominant position of Telecom/Telecom Italia Mobile ( TIM )           of 27 February 1995 the appointing authority informed the
in the context of the analysis of the alleged abusive                applicant that, before deciding on the measures to be
conduct.                                                              adopted, if any, it proposed to carry out an investigation
                                                                     aimed at verifying whether or not the allegations contained
 As regards Articles 86, 90 and 190 of the Treaty, the                in the book were well-founded . On 17 July 1995 , having
 applicant criticizes the erroneous conclusion that there            received no response to his request, the applicant lodged a
 existed both special rights in respect of Telecom/TIM and a          complaint against the implied decision rejecting his request.
 national measure for determining the hypothetical                    That complaint was likewise rejected by an implied
 distortion of competition and the relevant harmful effect on         decision .
 trade between the Member States . If such a national
 measure does exist, the applicant argues that it is not              In contesting that decision, the applicant pleads, first of all ,
 contrary to Article 86 of the Treaty. Finally, Telecom               the complete absence of any statement of reasons . He
 maintains that the abuse alleged by the Commission is of no          maintains, moreover, that the decision was taken in breach
 significance either logically or economically and is in any          of the duty to provide assistance as laid down in Article 24 of
 event unsubstantiated .                                              the Staff Regulations, inasmuch as, first, the institution
                                                                      provided no information enabling the applicant to verify
 Finally, the applicant claims that Article 190 of the Treaty         whether the investigation had actually been carried out and,
 has been infringed inasmuch as the grounds for the decision          second, it took no steps to defend? in public and by name its
 are inconsistent with the corrective measures imposed on             official .
 the Italian Government .
                                                                      As regards the claim for damages, the applicant asserts that
                                                                      the defendant failed to fulfil its duty to provide assistance by
                                                                       omitting to adopt, on its own initiative, such measures as
                                                                      would restore his honour and dignity; that dereliction of
 Action brought on 7 December 1995 by Luigi Ronchi                     duty was aggravated by the rejection of his formal request
   against the Commission of the European Communities                  for the adoption of such measures . He considers, moreover,
                        ( Case T-223/95 )                              that, while his professional reputation has already been
                                                                       compromised by the publication of the book in question, the
                           ( 96/C 46/31 )                              Commission's failure to take the appropriate measures has
                                                                       aggravated the non-material damage which he has
                (Language of the case: French)                         suffered .
  An action against the Commission of the European
  Communities was brought before the Court of First


title: Case C-499/99: Action brought on 22 December 1999 by the Commission of the European Communities against the Kingdom of Spain

text:
C 79/8                 EN                  Official Journal of the European Communities                                     18.3.2000
Appeal brought on 21 December 1999 by the Com-                        being that the Court of First Instance asserted that the
mission of the European Communities against the judg-                 Commission may not alter the terms of payment, and yet at
ment delivered on 14 October 1999 by the Second                       the same time stated that the Commission ought to have
Chamber of the Court of First Instance of the European                issued a new invitation to tender, which would have meant
Communities in Joined Cases T-191/96 and T-106/97 in                  changing the terms of payment of the successful tenderers
so far as it relates to Case T-191/96 between C.A.S. Succhi           which had already fulfilled their contractual obligations).
di Frutta SpA, established in Borgonovo, Castagnaro di
Verona, and the Commission of the European Communi-                   The third ground of challenge is that the Court of First Instance
                               ties                                   misinterpreted Community law relating to the concept of
                                                                      individual concern when it held that C.A.S. Succhi di Frutta
                        (Case C-496/99 P)                             SpA was individually concerned by the contested decision.
                                                                      The fourth plea is that the Court of First Instance misinter-
                          (2000/C 79/15)
                                                                      preted the concept of an interest in bringing proceedings and
                                                                      in particular the scope of Article 176 of the Treaty (now
An appeal against the judgment delivered on 14 October 1999           Article 233 EC) and consequently found that C.A.S. Succhi di
by the Second Chamber of the Court of First Instance of               Frutta had such an interest.
the European Communities in Joined Cases T-191/96 and
T-106/97 in so far as it relates to Case T-191/96 between             The fifth plea concerns misinterpretation of the rules relating
C.A.S. Succhi di Frutta SpA and the Commission of the                 to the withdrawal of fruit provided for by the common
European Communities was brought before the Court of                  organisation of the markets in the fruit and vegetable sector
Justice of the European Communities on 21 December 1999               which led the Court of First Instance to treat as available fruit
by the Commission of the European Communities, represented            withdrawn on dates prior to that on which payment was
by Francesco P. Ruggeri Laderchi, of its Legal Service, acting as     possible.
Agent, assisted by Alberto Dal Ferro of the Vicenza Bar, with
an address for service in Luxembourg at the office of Carlos
Gómez de la Cruz, Wagner Centre, Kirchberg.                          (1) Judgment of 14 October 1999 in Joined Cases T-191/96 and
                                                                          T-196/97.
                                                                      (2) C.A.S. Succhi di Frutta SpA.
The appellant claims that the Court should:
— set aside the judgment under appeal and declare the
    application brought by C.A.S. Succhi di Frutta SpA in Case
    T-191/96 (1) inadmissible;
— in the alternative, set aside the judgment under appeal on
                                                                      Action brought on 22 December 1999 by the Commission
    substantive grounds and declare the application brought by
                                                                      of the European Communities against the Kingdom of
    C.A.S. Succhi di Frutta SpA in Case T-191/96 unfounded;
                                                                                Spain
— in the further alternative, set aside the judgment under
                                                                                (Case C-499/99)
    appeal and remit the case to the Court of First Instance so
    that it may give a ruling on the merits in the light of such
    information as the Court may wish to provide;                                                (2000/C 79/16)
— order the applicant (2) to pay the costs of the present             An action against the Kingdom of Spain was brought before
    proceedings and of the proceedings at first instance relating     the Court of Justice of the European Communities on
    to Case T-191/96.                                                 22 December 1999 by the Commission of the European
                                                                      Communities, represented by Gérard Rozet et Ramón Vidal
                                                                      Puig, acting as Agents, with an address for service in Luxem-
                                                                      bourg at the office of Carlos Gómez de la Cruz, of its Legal
Pleas in law and main arguments                                       Service, Wagner Centre, Kirchberg.
The first and second pleas are that the Court of First Instance       The applicant claims that the Court should:
erred in law when it applied the principle of equal treatment
between tenderers with reference to the differing positions of        — Declare that, by failing to adopt and bring into force
the unsuccessful and the successful tenderers after the award              within the prescribed period the laws, regulations and
of the contract. The incorrect application of that principle               administrative provisions necessary to comply with Com-
invalidates the judgment as regards both admissibility (the first          mission Decision of 20 December 1989 (91/1/EEC) (1) and
plea being that the situation of C.A.S. Succhi di Frutta                   of 14 October 1998 declaring certain aid to undertakings
SpA does not distinguish it from any other third parties;                  belonging to the Magefesa group to have been granted
consequently, it does not as such have standing to challenge               unlawfully and to be incompatible with the common
the decision on equivalence) and substance (the second plea                market, the Kingdom of Spain has failed to fulfil its
 ---pagebreak--- 18.3.2000              EN                   Official Journal of the European Communities                                         C 79/9
     obligations under the fourth paragraph of Article 249 EC          Appeal brought on 22 December 1999 by Conserve Italia
     and Articles 2 and 3 of the aforementioned decisions; and         Soc. Coop. arl, established at St Lazzaro di Savena, against
                                                                       the judgment delivered on 12 October 1999 by the Third
— Order the Kingdom of Spain to pay the costs.                         Chamber of the Court of First Instance of the European
                                                                       Communities in Case T-216/96 between Conserve Italia
                                                                       Soc. Coop. arl and Commission of the European Com-
Pleas in law and main arguments                                                                     munities
Pursuant to Article 249 EC, the 1989 and 1998 decisions are                                    (Case C-500/99 P)
binding in every respect upon the Member State to which they
were addressed, in this case the Kingdom of Spain, by virtue
                                                                                (2000/C 79/17)
of their having been notified on 5 March 1990 and 29 October
1998 respectively.
                                                                       An appeal against the judgment delivered on 12 October 1999
On 28 December 1998 the Kingdom of Spain brought an                    by the Third Chamber of the Court of First Instance of the
action for annulment under Article 173 of the EC Treaty                European Communities in Case T-216/96 between Conserve
(230 EC). That action brought before the Court against the             Italia Soc. Coop. arl and Commission of the European
1998 decision under Case Number C-480/98 has no suspen-                Communities was brought before the Court of Justice of the
sory effect (Article 242 EC).                                          European Communities on 22 December 1999 by Conserve
                                                                       Italia Soc. Coop. arl, formerly known as Massalombarda
                                                                       Colombani SpA, represented by Marina Averani and Andrea
The Commission considers that the Kingdom of Spain has                 Pisaneschi, of the Siena Bar, Paolo De Caterini, of the Rome
failed to fulfil its obligations under the fourth paragraph of         Bar, and Stefano Zunarelli, of the Bologna Bar, with an address
Article 249 EC and under Articles 2 and 3 of the 1989 and              for service in Luxembourg at the Chambers of Charles Turk,
1998 decisions, by failing to adopt all the measures necessary         13B Avenue Guillaume, Luxembourg.
to recover the aid. Moreover, even supposing that the measures
adopted to date by the Kingdom of Spain were to be deemed
sufficient to comply with Article 2 of the 1989 and 1998               The appellant claims that the Court should:
decisions, such measures were not adopted within the
two-month period following notification, so that the Kingdom
                                                                       — set aside or vary the contested judgment;
of Spain has nonetheless failed to fulfil its obligation under
Article 3 of each decision.
                                                                       — accordingly, annul Commission Decision C (96) 2760;
In order to comply with the 1989 decision, the Governments
of the Basque Country, Cantabria and Andalusia should have             — order the respondent to pay the costs.
sought the repayment of the aid by the actual beneficiaries,
namely Indosa, Cunosa, Gursa and Migsa, either directly or
through the intermediary companies Ficodesa, Gemacasa and
Damna, through which the aid had been channelled. However,             Pleas and main arguments
up to the initiation of these proceedings, the aforementioned
regional governments have at best done no more than ask for            1. According to the Court of First Instance, the irregularities
the return of the aid from the intermediary companies, which                relating to the project stem from the fact that it should be
have no assets of their own, so that the requests for repayment             regarded as having started when the contracts for machin-
have met with no success.                                                   ery were concluded — albeit subject to conditions —
                                                                            rather than when payment is made, invoices issued or even
                                                                            when they are actually performed.
So far as concerns the 1998 decision, the TSS and the Hacienda
Foral de Vizcaya account, together with the remaining public
creditors of Indosa, for 82.65 % of the amount of admitted                  That conclusion has no support in law but appears to be
debts and have therefore a large majority in the Indosa’s                   in conflict with the applicable legislation.
Committee of Inspection. However, the TSS has not adopted
any of the measures open to it, such as requesting the courts          2. In the appellant’s view, the Court of First Instance was
to call a creditors’ meeting or dismiss the receivers. In any               wrong to hold that the first subparagraph of Article 15(2)
event, the fact that it was not possible to reach an agreement              Regulation 4253/88 did not apply to the instant case,
among the creditors as a result of not being able to find a                 since all the expenditure was incurred during the six
buyer interested in acquiring the assets does not make it                   months preceding the beginning of the action.
‘absolutely impossible’ to comply with the 1998 decision,
since it would still be possible to wind up Indosa.
                                                                       3. The infringements complained of constituted only 28 % of
                                                                            the amount of the investment. In such circumstances, the
(1) OJ 1991 L 5, p. 18.                                                     legislation should possibly have provided for the reduction
                                                                            of the contribution rather than its withdrawal. The appel-
                                                                            lant is of the view that the legislation in force does not
                                                                            allow for the contribution to be withdrawn totally.