title: Case C-18/11: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 12 January 2011 — The Commissioners for Her Majesty's Revenue & Customs v Philips Electronics UK Ltd

text:
               19.3.2011

               EN

               Official Journal of the European Union

               C 89/11

         Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 12 January 2011 — The Commissioners for Her Majesty's Revenue & Customs v Philips Electronics UK Ltd
   (Case C-18/11)
   2011/C 89/20
   Language of the case: English

      Referring court

   Upper Tribunal (Tax and Chancery Chamber) (United Kingdom)

      Parties to the main proceedings

      Applicant: The Commissioners for Her Majesty's Revenue & Customs

      Defendant: Philips Electronics UK Ltd

      Questions referred

               1.

               Where a Member State (such as the UK) includes in its tax base the profits and losses of a company incorporated and tax resident in another Member State (such as the Netherlands) to the extent that the profits are attributable to a business carried on by the Netherlands company in the UK through a permanent establishment situated in the UK, is it a restriction on the freedom of a national of a Member State to establish in the UK under Article 49 TFEU (ex Article 43 EC) for the UK to prevent the surrender of the UK losses of a permanent establishment situated in the UK of a non-UK resident company to a UK company by way of group relief where any part of those losses or any amount brought into account in computing them ‘corresponds to, or is represented in, any amount which, for the purposes of any foreign tax is (in any period) deductible from or otherwise allowable against non-UK profits of the company or any person’ Le. to permit the surrender of UK losses in the case of a permanent establishment situated in the UK only where it is clear that at the time of the claim there can never be any deduction or allowance in any State outside the UK (including another Member State (such as the Netherlands)), and it being insufficient that relief available overseas has not in fact been claimed, and in circumstances where there is no equivalent condition applicable to the surrender of UK losses of a UK resident company?

               2.

               If so, is that restriction capable of being justified:

                           a)

                           solely on the basis of the need to prevent the double use of losses, or

                           b)

                           solely on the basis of the need to preserve the balanced allocation of taxing powers between Member States, or

                           c)

                           on the basis of the need to preserve the balanced allocation of taxing powers between Member States in conjunction with the need to prevent the double use of losses?

               3.

               If so, is the restriction proportionate to such justification or justifications?

               4.

               If any restriction on the rights of the Netherlands company is not justified or to the extent that it is not proportionate to any justification, does EU Jaw require the UK to provide the UK company with a remedy such as the right to claim group relief against its profits?


title: Case C-50/08: Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v French Republic (Failure by a Member State to fulfil its obligations — Article 43 EC — Freedom of establishment — Notaries — Nationality requirement — Article 45 EC — Connection with the exercise of official authority)

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/2

         Judgment of the Court (Grand Chamber) of 24 May 2011 — European Commission v French Republic
   (Case C-50/08) (1)

   (Failure by a Member State to fulfil its obligations - Article 43 EC - Freedom of establishment - Notaries - Nationality requirement - Article 45 EC - Connection with the exercise of official authority)
   2011/C 204/03
   Language of the case: French

      Parties

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

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

      Defendant: French Republic (represented by: E. Belliard, G. de Bergues and B. Messmer, Agents)

      Interveners in support of the defendant: Republic of Bulgaria (represented by: T. Ivanov and E. Petranova, Agents), Czech Republic (represented by: M. Smolek, Agent), Republic of Latvia (represented by: L. Ostrovska, K. Drēviņa and J. Barbale, Agents), Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė, Agents), Republic of Hungary (represented by: R. Somssich, K. Veres and M. Fehér, Agents), Romania (represented by: C. Osman, A. Gheorghiu, A. Stoia and A. Popescu, Agents), Slovak Republic (represented by: J. Čorba and B. Ricziová, Agents)

      Re:

   Failure by a Member State to fulfil its obligations — Infringement of Articles 43 EC and 45 EC — National legislation making access to the profession of notary and its pursuit subject to a nationality requirement — Restriction on the freedom of establishment — Scope of the exception relating to activities connected with the exercise of official authority — Requirement of direct and specific connection with such exercise

      Operative part of the judgment

   The Court:

               1.

               Declares that, by imposing a nationality requirement for access to the profession of notary, the French Republic failed to fulfil its obligations under Article 43 EC;

               2.

               Orders the French Republic to pay the costs;

               3.

               Orders the Republic of Bulgaria, the Czech Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, Romania, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

      (1)  OJ C 128, 24.5.2008.


title: Case C-142/11: Reference for a preliminary ruling from the Jász-Nagykun-Szolnok County Court (Hungary) lodged on 23 March 2011 — Péter Dávid v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/10

         Reference for a preliminary ruling from the Jász-Nagykun-Szolnok County Court (Hungary) lodged on 23 March 2011 — Péter Dávid v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága
   (Case C-142/11)
   2011/C 179/17
   Language of the case: Hungarian

      Referring court

   Jász-Nagykun-Szolnok County Court

      Parties to the main proceedings

      Applicant: Péter Dávid

      Defendant: Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

      Questions referred

               1.

               Are the provisions relating to VAT deductions in Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2001/115/EC (2) of 20 December 2001 (‘the Sixth Directive’) and, as regards 2007, in Council Directive 2006/112/EC (3) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that the right of deduction of a taxable person may be restricted or prohibited by the tax authority, on the basis of strict liability, if the invoice issuer cannot guarantee that the involvement of further subcontractors complied with the rules?

               2.

               Where the tax authority does not dispute that the economic activity detailed in the invoice actually took place, nor that the form of the invoice complies with the legal provisions, may the authority lawfully prohibit a VAT refund if the identity of the other subcontractors used by the invoice issuer cannot be determined, or invoices have not been issued in accordance with the rules by the latter?

               3.

               Is a tax authority which prohibits the exercise of the right of deduction in accordance with paragraph 2 obliged to ensure during its procedures that the taxable person with the right of deduction was aware of unlawful conduct, possibly engaged in for the purpose of tax avoidance, of the companies behind the subcontracting chain, or even colluded in such conduct?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

      (2)  Council Directive 2001/115/EC of 20 December 2001 amending Directive 77/388/EEC with a view to simplifying, modernising and harmonising the conditions laid down for invoicing in respect of value added tax (OJ 2002 L 15, p. 24).

      (3)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Judgment of the Court (Third Chamber) of  15 December 2005  in Joined Cases C-232/04 and C-233/04, Reference for a preliminary ruling from the Arbeitsgericht Düsseldorf Nurten Güney-Görres, Gul Demir v Securicor Aviation (Germany) Ltd, Kötter Aviation Security GmbH & Co. KG (Directive 2001/23/CE — Article 1 — Transfer of undertaking or business — Safeguarding of employees' rights — Scope)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/6

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 15 December 2005
   in Joined Cases C-232/04 and C-233/04, Reference for a preliminary ruling from the Arbeitsgericht Düsseldorf Nurten Güney-Görres, Gul Demir v Securicor Aviation (Germany) Ltd, Kötter Aviation Security GmbH & Co. KG (1)

   (Directive 2001/23/CE - Article 1 - Transfer of undertaking or business - Safeguarding of employees' rights - Scope)
   (2006/C 48/12)
   Language of the case: German
   In Joined Cases C-232/04 and C-233/04: reference for a preliminary ruling under Article 234 EC from the Arbeitsgericht Düsseldorf (Germany), made by decision of 5 May 2004, received at the Court on 3 June 2004, in the proceedings between Nurten Güney-Görres (C-232/04), Gul Demir (C-233/04) and Securicor Aviation (Germany) Ltd, Kötter Aviation Security GmbH & Co. KG — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr, A. Borg Barthet (Rapporteur) and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 15 December 2005, the operative part of which is as follows:
   Article 1 of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, must be interpreted as meaning that in examining whether there is a transfer of an undertaking or business within the meaning of that article, in the context of a fresh award of a contract and having regard to all the facts, the transfer of the assets for independent commercial use is not an essential criterion for a finding that there was a transfer of those assets from the original contractor to the new contractor.

      (1)  OJ C 228 of 11.09.2004.

      OJ C 201 of 07.08.2004.


               6.5.2006

               EN

               Official Journal of the European Union

               C 108/36

         (2006/C 108/66)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 96, 22.4.2006

   Past publications

      OJ C 86, 8.4.2006

      OJ C 74, 25.3.2006

      OJ C 60, 11.3.2006

      OJ C 48, 25.2.2006

      OJ C 36, 11.2.2006

      OJ C 22, 28.1.2006

   These texts are available on:

               EUR-Lex:http://europa.eu.int/eur-lex

               CELEX:http://europa.eu.int/celex


title: Case C-81/07: Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil its obligations — Environment — Directive 2000/59/EC — Waste reception and handling plans for ship-generated waste)

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/8

         Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Hellenic Republic
   (Case C-81/07) (1)

   (Failure of a Member State to fulfil its obligations - Environment - Directive 2000/59/EC - Waste reception and handling plans for ship-generated waste)
   (2008/C 116/13)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: G. Zavvos and K. Simonsson, Agents)

      Defendant: Hellenic Republic (represented by: S. Chala and I. Pouli, Agents)
   Re:
   Failure of a Member State to fulfil its obligations — Failure to adopt, within the period prescribed, all the provisions necessary to comply with Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues — Commission declaration (OJ 2000 L 332, p. 81)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to develop, implement and approve waste reception and handling plans for ship-generated waste and cargo residues, the Hellenic Republic has failed to fulfil its obligations under Article 5(1) and Article 16(1) of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues.

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 69, 24.3.2007.


title: Case T-255/14: Action brought on 23 April 2014 — Aalto-korkeakoulusäätiö v OHIM (APPCAMPUS)

text:
               21.7.2014

               EN

               Official Journal of the European Union

               C 235/24

         Action brought on 23 April 2014 — Aalto-korkeakoulusäätiö v OHIM (APPCAMPUS)
   (Case T-255/14)
   2014/C 235/33
   Language of the case: English

      Parties

      Applicant: Aalto-korkeakoulusäätiö (Helsinki, Finland) (represented by: C. Tomás Pedro, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Partially annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 January 2014 given in Case R 713/2013-2 in the part that it confirmed the decision of rejection of protection in the European Union to the International Registration 1 1 34  485‘APPCAMPUS’ (word) regarding computer software, magnetic data carriers, recording discs, compact discs, DVD’s and other digital recording media in class 9 and technological services and research and design relating thereto, design and development of computer software in class 42;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: International Registration designating the European Union No 1 1 34  485 of the word mark ‘APPCAMPUS’ for goods and services in Classes 9, 35, 38, 41 and 42

      Decision of the Examiner: Found the trade mark applied for partially not eligible for registration

      Decision of the Board of Appeal: Partially annulled the contested decision

      Pleas in law: Infringement of Articles 7(1)(c), (b) and 7(2) of the Regulation No 207/2009


title: Case C-462/01: Reference for a preliminary ruling by the Halmstads Tingsrätt (Sweden) by order of that court of 8 November 2001 in the case of Åklagaren v Ulf Hammarsten

text:
6.4.2002               EN                   Official Journal of the European Communities                                     C 84/43
      should proceed to enter the customs debt in question in          (1) Does Article 28 of the Treaty of Rome permit a Member
      the accounts. By virtue of Article 221(1) of the CCC, the             State to prohibit cultivation or other processing of
      Member State is required to take immediate steps,                     ‘industrial hemp’ allowed under EC regulations?
      following the entry in the accounts, to recover the debt
      by communicating the amount thereof to the debtor. The
      Netherlands is incorrect in its view that it may take as         (2) If that is not the case, can an exception nevertheless be
      much time as it wishes to carry out a careful assessment,             made under Article 30 of the Treaty of Rome with the
      ‘having regard to the quantity and complexity of the                  result that such a prohibition does not conflict with EC
      evidence produced in a given case’. The argument                      law?
      advanced by the Netherlands can only be regarded as
      seeking the application of Article 219 of the CCC.
      However, Articles 218 and 219 of the CCC are provisions          (3) If that is not the case, can the Swedish prohibition be
      designed to safeguard the financial interests of the                  accepted on some other ground?
      Community, for which customs receipts constitute a
      form of own resources, and which thus has an interest in
      the rapid determination of those receipts. Consequently,
      it is not open to the Member States to invoke, at will,
      extensions under Article 219 of the CCC as against the
      Commission. On the contrary, the Member States must
      always show why the reasons invoked by them render it
      necessary to extend the time-limit for entry in the
      accounts.
—     Infringement of Articles 9 and 10 of Regulation
      No 1552/89.                                                      Action brought on 4 December 2001 by the Commission
                                                                       of the European Communities against the Republic of
—     Infringement of Article 11 of Regulation No 1552/89:                                         Austria
      the infringements complained of in the last two pleas are
      necessary consequences of the infringement described in
      the first plea. During the period in question, the Nether-
      lands failed to make the principal sum available. In                                    (Case C-465/01)
      addition, it has hitherto constantly refused to pay the
      corresponding default interest. Since the end of 1996
      the Commission has been requesting the Netherlands
                                                                                (2002/C 84/75)
      authorities to pay to it the sum of NLG 5 323 395,06 by
      way of default interest.
( 1) OJ 1987 L 107, p. 1.
( 2) OJ 1992 L 132, p. 1.
( 3) OJ 1993 L 253, p. 1.                                              An action against the Republic of Austria was brought
( 4) OJ 1989 L 155, p. 1.                                              before the Court of Justice of the European Communities on
( 5) OJ 1992 L 302, p. 1.                                              4 December 2001 by the Commission of the European
                                                                       Communities, represented by Jörn Sack, Legal Adviser in the
                                                                       Commission of the European Communities, with an address
                                                                       for service at the office of Luis Escobar Guerrero, of the
                                                                       Commission’s Legal Service, Wagner Centre, Kirchberg, Lux-
                                                                       embourg.
Reference for a preliminary ruling by the Halmstads
Tingsrätt (Sweden) by order of that court of 8 November
      2001 in the case of Åklagaren v Ulf Hammarsten
                                                                       The applicant claims that the Court should:
                          (Case C-462/01)
                                                                       (1) declare that:
                           (2002/C 84/74)
                                                                            (a)  by excluding workers from other EC/EEA Member
                                                                                States from the right to stand for election to
Reference has been made to the Court of Justice of the                           chambers of workers, the Republic of Austria has
European Communities by order of the Halmstads Tingsrätt                         failed to fulfil its obligations under Article 8 of
(District Court, Halmstad) of 8 November 2001, which was                         Regulation (EEC) No 1612/68 (1) on freedom of
received at the Court Registry on 3 December 2001, for a                         movement for workers within the Community and
preliminary ruling in the case of Åklagaren v Ulf Hammarsten                     under Article 28 of the Agreement on the European
on the following questions:                                                      Economic Area;


title: Case C-328/00: Reference for a preliminary ruling by the Bayerisches Verwaltungsgericht Regensburg by order of 30 August 2000 in the case of Maria Weber and Martin Weber v Freistaat Bayern

text:
C 316/16              EN                    Official Journal of the European Communities                                        4.11.2000
1.   May Article 22 of Directive 93/36/EEC (1) of 14 June              2.    Was it permissible to increase the prices established for
     1993 be interpreted as meaning that the competent                       Hamburg and ‘Fac Atlant’ by the addition of notional
     national courts are required to protect citizens of the                 freight costs of ECU 3,8 per tonne?
     Union adversely affected by measures adopted in breach
     of Community law, by resorting, in particular, to disappli-
     cation as provided for in Article 5 of Law No 2248 of             3.    When determining the final reference price was it per-
     20 March 1865 with respect to clauses of an invitation                  missible to use as a basis purely mathematically deter-
     to tender which are contrary to Community law but were                  mined average prices, without taking into account the
     not challenged within the short time-limit laid down by                 different quantities marketed in the individual months of
     national procedural law for the application of Community                the calculation period?
     law by the court of its own motion, whenever it is found,
     first, that the application of Community law has been             4.    If questions 1, 2 and 3 are answered in the affirmative, is
     seriously impeded or rendered difficult in any way, and                 Regulation (EEC) No 525/93 defective as regards its
     second, that there is a public interest, of Community or                criteria for calculating the final regional reference amount
     national origin, which justifies such application?                      in that it fails to state reasons within the meaning of
                                                                             Article 253 (previously Article 190) of the EC Treaty?
2.   Does Article 6(2) of the Treaty which, by providing for
     respect of the fundamental rights safeguarded by the              5.    Would that failure to state reasons be so material that it
     European Convention on Human Rights and Fundamen-                       would lead to the nullity, in whole or in part, of the
     tal Freedoms, has adopted the principle of effective                    regulation?
     judicial protection provided for in Articles 6 and 13 of
     that Convention, lead to the same conclusion?
                                                                       (1) OJ 1993 L 56 of 9.3.1993, p. 18.
(1) OJ L 199 of 9.8.1993, p. 1.
                                                                       Action brought on 11 September 2000 by the Com-
                                                                       mission of the European Communities against the Grand
                                                                                Duchy of Luxembourg
Reference for a preliminary ruling by the Bayerisches
Verwaltungsgericht Regensburg by order of 30 August
2000 in the case of Maria Weber and Martin Weber v                                               (Case C-335/00)
                        Freistaat Bayern
                                                                                (2000/C 316/31)
                        (Case C-328/00)
                                                                       An action against the Grand Duchy of Luxembourg was
                                                                       brought before the Court of Justice of the European Communi-
                        (2000/C 316/30)                                ties on 11 September 2000 by the Commission of the
                                                                       European Communities, represented by Gérard Berscheid, of
                                                                       its Legal Service, acting as Agent, with an address for service
Reference has been made to the Court of Justice of the
                                                                       in Luxembourg at the office of Carlos Gómez de la Cruz, also
European Communities by order of 30 August 2000 by
                                                                       of the Commission’s Legal Service, Wagner Centre, Kirchberg.
the Bayerisches Verwaltungsgericht (Bavarian Administrative
Court), which was received at the Court Registry on 6 Septemb-
er 2000, for a preliminary ruling in the case of Maria
                                                                       The applicant claims that the Court should:
Weber and Martin Weber v Freistaat Bayern on the following
questions:
                                                                       1.    Declare that, by failing to bring into force within the
                                                                             prescribed time-limits the laws, regulations and adminis-
1.   Was the Commission, when establishing the final regional                trative provisions needed in order to comply with
     reference amount, entitled, notwithstanding the wording
     of Annex I to Regulation (EEC) No 525/93 (1), to leave
     out of account reference prices from months in the                      —     Commission Directive 98/68/EC of 10 September
     period between 1 July 1992 and January 1993, to include                       1998 laying down the standard document referred
     in its calculation reference prices from months after that                    to in Article 9(1) of Council Directive 95/53/EC and
     period, and to replace missing information on reference                       certain rules for checks at the introduction into the
     prices by an estimate?                                                        Community of feedingstuffs from third countries (1),


title: Judgment of the Court (Sixth Chamber) of 29 September 1999 in Case C-56/98 (reference for a preliminary ruling from the Supremo Tribunal Administrativo): Modelo SGPS SA v Director-Geral dos Registos e Notariado (Directive 69/335/EEC - Indirect taxes on the raising of capital - Charge for drawing up a notarially attested act recording an increase in share capital and a change in a company's name and registered office)

text:
18.12.1999                 EN                    Official Journal of the European Communities                                           C 366/13
                   JUDGMENT OF THE COURT                                         an increase in share capital or a change in a company’s name or
                                                                                registered office, such as the charge at issue in the main
                                                                                proceedings, the amount of which increases in direct proportion
                            (Sixth Chamber)                                      to the share capital raised and in respect of which there is no
                                                                                upper limit.
                        of 29 September 1999
                                                                            4. Article 10 of Directive 69/335, as amended by Directive
                                                                                85/303, creates rights on which individuals may rely in
in Case C-56/98 (reference for a preliminary ruling from                         proceedings before the national courts.
the Supremo Tribunal Administrativo): Modelo SGPS SA
        v Director-Geral dos Registos e Notariado (1)
                                                                            (1) OJ No C 113 of 11.4.1998.
(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Charge for drawing up a notarially attested act
recording an increase in share capital and a change in a
              company’s name and registered office)
                             (1999/C 366/20)                                                  JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                    (Language of the case: Portuguese)
                                                                                of 5 October 1999
(Provisional translation; the definitive translation will be published      in Case C-179/95: Kingdom of Spain v Council of the
                      in the European Court Reports)                                                 European Union (1)
In Case C-56/98: reference to the Court under Article 177 of                (Fisheries — Regulation laying down limits on and distribut-
the EC Treaty (now Article 234 EC) from the Supremo Tribunal                ing fishing opportunities among Member States — Fishing
Administrativo, Portugal, for a preliminary ruling in the                                    quota exchanges — Annulment)
proceedings pending before that court between Modelo SGPS
SA and Director-Geral dos Registos e Notariado, in the
                                                                                (1999/C 366/21)
presence of the Ministério Público — on the interpretation of
Articles 4(3), 10 and 12(1)(e) of Council Directive 69/335/EEC
of 17 July 1969 concerning indirect taxes on the raising of
                                                                                (Language of the case: Spanish)
capital (OJ, English Special Edition 1969 (11), p. 412), as
amended by Council Directive 85/303/EEC of 10 June 1985
(OJ 1985 L 156, p. 23) — the Court (Sixth Chamber), compo-
                                                                            (Provisional translation; the definitive translation will be published
sed of: P.J.G. Kapteyn, President of the Chamber, J.L. Murray
                                                                                in the European Court Reports)
and H. Ragnemalm (Rapporteur), Judges; G. Cosmas, Advocate
General; L. Hewlett, Administrator, for the Registrar, has given
a judgment on 29 September 1999, in which it has ruled:                     In Case C-179/95: Kingdom of Spain (Agents: A. Navarro
                                                                            González and R. Silva de Lapuerta) v Council of the European
1. Council Directive 69/335/EEC of 17 July 1969 concerning                  Union (Agents: J. Carbery and G.L. Ramos Ruano), supported
    indirect taxes on the raising of capital, as amended by Council         by Commission of the European Communities (Agents: T. van
    Directive 85/303/EEC of 10 June 1985, must be interpreted as            Rijn and B. Vilá Costa) — application for annulment of the
    meaning that charges constitute taxes for the purposes of the           final sentence of point 1.1(i) of Annex IV to Council Regulation
    directive where they are collected for drawing up notarially            (EC) No 685/95 of 27 March 1995 on the management of the
    attested acts recording a transaction covered by the directive,         fishing effort relating to certain Community fishing areas and
    under a system where notaries are employed by the State and the         resources (OJ 1995 L 71, p. 5) and of the fifth heading, on
    charges in question are paid in part to that State for the financing    anchovies, in Annex I to Council Regulation (EC) No 746/95
    of its official business.                                               of 31 March 1995 amending Regulation (EC) No 3362/94
                                                                            fixing, for certain fish stocks and groups of fish stocks, the
                                                                            total allowable catches for 1995 and certain conditions under
2. A charge payable for drawing up a notarially attested act                which they may be fished (OJ 1995 L 74, p. 1) — the Court
    recording an increase in share capital or a change in a company’s       (Sixth Chamber), composed of: G. Hirsch, President of the
    name or registered office is, where it amounts to a tax for the         Second Chamber, acting as President of the Second Chamber
    purposes of Directive 69/335, as amended by Directive 85/303,           (Rapporteur), J.L. Murray and H. Ragnemalm, Judges; S. Alber,
    in principle prohibited under Article 10(c) thereof.                    Advocate General; D. Louterman-Hubeau, Principal Adminis-
                                                                            trator, for the Registrar, has given a judgment on 5 October
3. ‘Fees or dues’ within the meaning of Article 12(1)(e) of Directive       1999, in which it:
    69/335, as amended by Directive 85/303, do not cover a
    charge collected for drawing up a notarially attested act recording     1. Dismisses the action;


title: Case T-366/11: Action brought on 6 July 2011 — Bial — Portela & Ca v OHIM — Isdin (ZEBEXIR)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/53

         Action brought on 6 July 2011 — Bial — Portela & Ca v OHIM — Isdin (ZEBEXIR)
   (Case T-366/11)
   2011/C 269/118
   Language in which the application was lodged: English

      Parties

      Applicant: Bial — Portela & Ca, SA (São Mamede do Coronado, Portugal) (represented by: B. Braga da Cruz and J. M. Pimenta, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Isdin, SA (Barcelona, Spain)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2011 in case R 1212/2009-1;

               —

               Order the defendant to refuse the grant of the registration of Community trade mark No 6809008 ‘ZEBEXIR’; and

               —

               Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The word mark ‘ZEBEXIR’, for goods in classes 3 and 5 — Community trade mark application No 6809008

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: Community trade mark registration No 3424223 of the word mark ‘ZEBINIX’, for goods and services in classes 3, 5 and 42

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that the trademarks in question were not confusingly similar.


title: Case C-546/03: Judgment of the Court (Second Chamber) of  23 February 2006  — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Community' own resources — Community Customs Code — Procedures for collecting import or export duties — Late payment of own resources relating to those duties and failure to pay default interest)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/8

         Judgment of the Court (Second Chamber) of 23 February 2006 — Commission of the European Communities v Kingdom of Spain
   (Case C-546/03) (1)

   (Failure of a Member State to fulfil its obligations - Community' own resources - Community Customs Code - Procedures for collecting import or export duties - Late payment of own resources relating to those duties and failure to pay default interest)
   (2006/C 131/13)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: M. Diaz-Llano La Roche and G. Wilms, acting as Agents)

      Defendant: Kingdom of Spain (represented by: M. Muñoz Perez, acting as Agent)

      Interveners in support of the defendant: Republic of Denmark (represented by: J. Molde, acting as Agent), Republic of Finland (represented by: A. Guimaraes-Purokoski, acting as Agent), Kingdom of Sweden (represented by: K. Wistrand, acting as Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Article 220 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and Article 5 of Council Regulation (EEC) No 1854/89 of 14 June 1989 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting from a customs debt (OJ L 1989, p. 1) — Late payment of part of the European Communities' own resources in the case of recovery a posteriori of customs duty — Refusal to pay default interest due as a consequence of the delay in making the entry in the Commission's account
   Operative part of the judgment
   The Court:

               1.

               Declares that

                           (a)

                           by failing to comply with the time-limits for late entry in the accounts of duties arising from a customs debt laid down in Article 5 of Council Regulation (EEC) No 1854/89 of 14 June 1989 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting from a customs debt, and, from 1 January 1994, with Article 220(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, leading to a delay in making available of own resources, and

                           (b)

                           by failing to pay to the Commission of the European Communities the interest under Article 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources, and, from 31 May 2000 of Article 11 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources,

                     the Kingdom of Spain has failed to fulfil its obligations under all of those provisions;

               2.

               Orders the Kingdom of Spain to pay the costs;

               3.

               Orders the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

      (1)  OJ C 59 of 06.03.2004.


title: Case T-362/02: Action brought on 5 December 2002 by Muswellbrook Limited against the Office for Harmonisation in the Internal Market (OHIM)

text:
22.2.2003                EN                         Official Journal of the European Union                                          C 44/33
accorded the Italian postal operator preferential treatment vis-            The applicant’s other pleas in law and arguments are the same
à-vis the applicants, which are in competition with it in the               as those set out in Case T-351/02.
very sector of postal services which have been opened up to
competition.
( 1) OJ L 282, 19.10.2002, p. 29.
( 2) Commission Decision on measures implemented by the Federal
     Republic of Germany for Deutsche Post AG (OJ L 247, 14.9.2002,
     p. 27).
                                                                            Action brought on 5 December 2002 by Muswellbrook
                                                                            Limited against the Office for Harmonisation in the
                                                                                Internal Market (OHIM)
Action brought on 5 December 2002 by Deutsche Bahn
AG against the Commission of the European Communi-                                                  (Case T-362/02)
                                  ties
                                                                                (2003/C 44/64)
                            (Case T-361/02)
                            (2003/C 44/63)                                                    (Language of the case: Spanish)
                    (Language of the case: German)
                                                                            An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                   Market (OHIM) was brought before the Court of First Instance
ties was brought before the Court of First Instance of the                  of the European Communities on 5 December 2002 by
European Communities on 5 December 2002 by Deutsche                         Muswellbrook Limited, established in Dublin (Ireland), rep-
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,                resented by J. Casulá Oliver, lawyer.
with an address for service in Luxembourg.
The applicant claims that the Court should:                                 The applicant claims that the Court should:
—      find that the Commission infringed its obligations under
       Article 87 and Article 88(1) EC in failing to adopt a                —    declare incompatible with Regulation (EC) No 40/94 on
       decision on the matters submitted to it by the applicant                  the Community trade mark, in particular Article 15(2)(a)
       in its complaint of 5 July 2002, and in any event, in                     and/or Article 42(2) and (3) thereof, the decision of the
       failing to initiate an investigation of State aid;                        First Board of Appeal of the OHIM of 30 September
                                                                                2002 in case No R 16/2000-1, inasmuch as it declares
—      order the Commission to pay the costs.                                    that the opponent has failed to prove genuine use in the
                                                                                Community of the Spanish trade mark No 88222 to
                                                                                distinguish ready-to-wear and other items of clothing in
                                                                                Class 25 during the five years preceding the publication
Pleas in law and main arguments                                                  of the application for a Community trade mark;
The action has the same origin as that in Case T-351/02                     —    annul that decision in its entirety;
(Deutsche Bahn v Commission).
                                                                            —    agree to vary that decision so as to declare that an
                                                                                assessment of and a ruling on the merits of the opposition
In the present action the applicant submits that the Com-                        to registration of Community trade mark No 278028 is
mission infringed its obligations under Article 87 and
                                                                                appropriate, to which end the Court’s judgment should
Article 88(1) EC because, despite having been called upon to                     declare that Community trade mark No 278028 is
act in accordance with paragraphs 2 and 3 of Article 232 EC,                     refused, or, in the alternative, refer the case back to the
it failed to investigate the compatibility of Paragraph 4(1),
                                                                                First Board of Appeal of the OHIM;
Head 3(a), of the German Law on the taxation on mineral oil
with the State-aid provisions of the EC Treaty and to adopt a
binding decision in that regard. No such decision can be                    —    order the defendant and, where appropriate, the inter-
discerned in the Commission’s letter of 21 September 2002                        vener to pay all the costs of the proceedings and those
and the Commission’s failure to act is not justified by objective                incurred at the administrative stages of the opposition
reasons.                                                                         and appeal proceedings.
 ---pagebreak--- C 44/34               EN                          Official Journal of the European Union                                         22.2.2003
Pleas in law and main arguments                                                 First Board of Appeal of the OHIM of 30 September
                                                                                2002 in case No R 19/2000-1, inasmuch as it declares
Applicant for Com-            NIKE INTERNATIONAL Ltd.                           that the opponent has failed to prove genuine use in the
munity trade mark:                                                              Community of the Spanish trade mark No 88222 to
                                                                                distinguish ready-to-wear and other items of clothing in
Community trade mark          The word mark ‘NIKE’ — appli-                     Class 25 during the five years preceding the publication
sought by the appli-          cation No 278028 for goods in                     of the application for a Community trade mark;
cation:                       Class 25 ‘clothing, footwear,
                              headgear’.                                  —     annul that decision in its entirety;
Proprietor of mark or         The applicant.                              —     agree to vary that decision so as to declare that an
sign right asserted in the                                                      assessment of and a ruling on the merits of the opposition
opposition proceedings:                                                         to registration of Community trade mark No 278093 is
                                                                                appropriate, to which end the Court’s judgment should
Mark or sign right assert-    The Spanish mixed trade mark
                                                                                declare that Community trade mark No 278093 is
ed in opposition:             No 88222, composed of the word                    refused, or, in the alternative, refer the case back to the
                              ‘NIKE’ together with the image of                 First Board of Appeal of the OHIM;
                              the Greek goddess of victory of
                              Samothrace, for products in
                              Class 25.                                   —     order the defendant and, where appropriate, the inter-
                                                                                vener to pay all the costs of the proceedings and those
Decision of Opposition        Refusal of application.                           incurred at the administrative stages of the opposition
Division:                                                                       and appeal proceedings.
Decision of Board of          Annulment of the decision of the
Appeal:                       Opposition Division and rejection
                              of the opposition.                          Pleas in law and main arguments
Pleas in law:                 Improper or erroneous appli-
                              cation of Article 15(2)(a) and              The applicant seeking the Community trade mark, the pro-
                              Article 43(2) and (3) and of other
                                                                          prietor of the mark cited in opposition, the tenor of the
                              relevant provisions of Regulation
                                                                          decisions of the Opposition Division and the Board of Appeal
                              No 40/94 on the Community
                                                                          and the pleas in law and main arguments are the same as those
                              trade mark.
                                                                          in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).
                                                                          The Community trade mark in respect of which registration is
                                                                          sought is the word mark ‘NIKE TOWN’ — application
                                                                          No 278093 in respect of goods in Class 25 ‘clothing, footwear
                                                                          and headgear’.
Action brought on 5 December 2002 by Muswellbrook
Limited against the Office for Harmonisation in the
                    Internal Market (OHIM)
                        (Case T-363/02)
                         (2003/C 44/65)
                                                                          Action brought on 5 December 2002 by Muswellbrook
                  (Language of the case: Spanish)                         Limited against the Office for Harmonisation in the
                                                                                Internal Market (OHIM)
An action against the Office for Harmonisation in the Internal                                     (Case T-364/02)
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 5 December 2002 by
Muswellbrook Limited, established in Dublin (Ireland), rep-                                         (2003/C 44/66)
resented by J. Casulá Oliver, lawyer.
                                                                                (Language of the case: Spanish)
The applicant claims that the Court should:
—     declare incompatible with Regulation (EC) No 40/94 on
      the Community trade mark, in particular Article 15(2)(a)            An action against the Office for Harmonisation in the Internal
      and/or Article 42(2) and (3) thereof, the decision of the           Market (OHIM) was brought before the Court of First Instance


title: Case C-302/12: Judgement of the Court (Second Chamber) of 21 November 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — X v Minister van Financiën (Request for a preliminary ruling — Article 43 EC — Motor vehicles — Use in a Member State of a private motor vehicle registered in another Member State — Taxation of that vehicle in the first Member State when it was first used on the national road network and also in the second Member State when it was registered — Vehicle used by the citizen concerned for both private use and for going, from the Member State of origin, to the place of work situated in the first Member State)

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/6

         Judgement of the Court (Second Chamber) of 21 November 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — X v Minister van Financiën
   (Case C-302/12) (1)

   (Request for a preliminary ruling - Article 43 EC - Motor vehicles - Use in a Member State of a private motor vehicle registered in another Member State - Taxation of that vehicle in the first Member State when it was first used on the national road network and also in the second Member State when it was registered - Vehicle used by the citizen concerned for both private use and for going, from the Member State of origin, to the place of work situated in the first Member State)
   2014/C 39/09
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: X

      Respondent: Minister van Financiën

      Re:

   Request for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 21 TFEU, 45 TFEU, 49 TFEU and 56 TFEU — National legislation imposing a registration tax when a motor vehicle is first used on the national road network — Tax owed by a person residing in two Member States, including the Member State concerned, and using her motor vehicle there on a permanent basis — Vehicle registered in the other Member State — Exercise of powers of taxation by both Member States.

      Operative part of the judgment

   Article 43 EC must be interpreted as not precluding legislation of a Member State under which a motor vehicle, which is registered and is already the subject of taxation as a result of its registration in another Member State, is the subject of a tax when it is first used on the national road network, where that vehicle is intended, essentially, to be actually used on a long-term basis in both those Member States or is, in fact, used in that manner, as long as that tax is not discriminatory.

      (1)  OJ C 287, 22.9.2012.


17.7.1999               EN                 Official Journal of the European Communities                                    C 204/35
2. Order the Grand Duchy of Luxembourg to pay the costs.                     Removal from the register of Case C-320/97 (1)
The pleas in law and main arguments are similar to those                                      (1999/C 204/74)
submitted in Case C-168/99 (2), the period prescribed in
Article 14(2) of the directive expired on 27 June 1997.               By order of 18 March 1999 the President of the Court of
                                                                      Justice of the European Communities has ordered the removal
                                                                      from the register of Case C-320/97: Commission of the
(1) OJ 1995 L 143, p. 75.                                             European Communities v Federal Republic of Germany.
(2) See this OJ, p. 28.
                                                                      (1) OJ No C 331 of 1.11.1997.
       Removal from the register of Case C-330/98 (1)
                                                                              Removal from the register of Case C-5/99 (1)
                         (1999/C 204/71)
                                                                                (1999/C 204/75)
By order of 10 March 1999 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 18 March 1999 the President of the Court of
from the register of Case C-330/98 (reference for a preliminary       Justice of the European Communities has ordered the removal
ruling from the Oberster Gerichtshof): The Wellcome Foun-             from the register of Case C-5/99 (reference for a preliminary
dation Ltd v Nycomed Austria GmbH.                                    ruling from the Landgericht Regensburg): Business registry
                                                                      case relating to Firma Wiesenhof Geflügelspezialitäten, a
                                                                      branch of Lohmann & Co. AG.
(1) OJ No C 340 of 7.11.1998.
                                                                      (1) OJ No C 86 of 27.3.1999.
       Removal from the register of Case C-186/97 (1)                        Removal from the register of Case C-245/98 (1)
                         (1999/C 204/72)                                                      (1999/C 204/76)
By order of 18 March 1999 the President of the Court of               By order of 19 April 1999 the President of the Court of Justice
Justice of the European Communities has ordered the removal           of the European Communities has ordered the removal from
from the register of Case C-186/97: Commission of the                 the register of Case C-245/98: Commission of the European
European Communities v Federal Republic of Germany.                   Communities v French Republic.
(1) OJ No C 212 of 12.7.1997.                                         (1) OJ No C 278 of 5.9.1998.
                                                                             Removal from the register of Case C-398/96 (1)
       Removal from the register of Case     C-192/97 (1)
                                                                                (1999/C 204/77)
                         (1999/C 204/73)
                                                                      By order of 21 April 1999 the President of the Court of Justice
By order of 18 March 1999 the President of the Second                 of the European Communities has ordered the removal from
Chamber of the Court of Justice of the European Communities           the register of Case C-398/96 (reference for a preliminary
has ordered the removal from the register of Case C-192/97:           ruling from Tribunale Amministrativo Regionale del Lazio):
Commission of the European Communities v Federal Republic             Associazione Produttori Vitivinicoli della Provincia di Treviso
of Germany.                                                           and Others v Ministero delle Risorse Agricole, Alimentari e
                                                                      Forestali (Ministero per le Politche Agricole).
(1) OJ No C 212 of 12.7.1997.                                         (1) OJ C 54 of 22.2.1997.


title: Case T-287/13: Action brought on 24 May 2013 — Husky CZ/OHIM — Husky of Tostock (HUSKY)

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/53

         Action brought on 24 May 2013 — Husky CZ/OHIM — Husky of Tostock (HUSKY)
   (Case T-287/13)
   2013/C 207/87
   Language in which the application was lodged: English

      Parties

      Applicant: Husky CZ s.r.o. (Prague, Czech Republic) (represented by: L. Lorenc, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Husky of Tostock Ltd (Woodbridge, United Kingdom)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision of OHIM’s First Board of Appeal of 14 March 2013;

               —

               Order OHIM and Husky of Tostock Limited to pay all costs and expenses.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which an application for revocation has been made: The word mark ‘HUSKY’ for goods in classes 3, 9, 14, 16, 18 and 25 — Community trade mark No 152 546

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

      Party applying for revocation of the Community trade mark: The applicant

      Decision of the Cancellation Division: Partially revoked the Community trade mark registration

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 51(1)(a) of Council Regulation No 207/2009.


title: Case T-277/14: Action brought on 30 April 2014 — Mabrouk v Council

text:
               24.6.2014

               EN

               Official Journal of the European Union

               C 194/34

         Action brought on 30 April 2014 — Mabrouk v Council
   (Case T-277/14)
   2014/C 194/44
   Language of the case: English

      Parties

      Applicant: Mohamed Marouen Ben Ali Bel Ben Mohamed Mabrouk (Carthage, Tunisia) (represented by: J. Farthouat, J. Mignard, N. Boulay, lawyers, and S. Crosby, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that the defendant has infringed Article 265 TFUE by failing to act upon the request of the applicant of 17 January 2014, of which it acknowledged receipt, to disclose the evidence upon which it relies to freeze the assets of the applicant in the European Union; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on one plea in law.
   The applicant alleges that the defendant is under a legal duty to disclose to the applicant the evidence upon which it relies to freeze the applicant’s assets, and that the defendant was formally called upon to disclose this evidence and was thus fully called upon to act. It has not acted either by disclosing the evidence or by refusing to do so, and it has thus infringed Article 265 TFEU.


title: Case T-450/12: Judgment of the General Court of 30 September 2015 — Anagnostakis v Commission (Law governing the institutions — European citizens’ initiative — Economic and monetary policy — Non-reimbursement of sovereign debt — Affirmation of the principle of the ‘State of necessity’ — Refusal of registration — Powers of the Commission — Obligation to state reasons)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/27

         Judgment of the General Court of 30 September 2015 — Anagnostakis v Commission
   (Case T-450/12) (1)

   ((Law governing the institutions - European citizens’ initiative - Economic and monetary policy - Non-reimbursement of sovereign debt - Affirmation of the principle of the ‘State of necessity’ - Refusal of registration - Powers of the Commission - Obligation to state reasons))
   (2015/C 389/27)
   Language of the case: Greek

      Parties

      Applicant: Alexios Anagnostakis (Athens, Greece) (represented by: A. Anagnostakis, lawyer)

      Defendant: European Commission (represented by: H. Krämer and M. Konstantinidis, acting as Agents)

      Re:

   Application for annulment of Commission decision C(2012) 6289 final of 6 September 2012 rejecting the request to register the European citizens’ initiative ‘One Million Signatures for a Europe of Solidarity’, submitted to the Commission on 13 July 2012.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders Mr Alexios Anagnostakis to pay the costs.

      (1)  OJ C 399, 22.12.2012.


title: Case T-399/04: Action brought on 7 October 2004 by Scandlines Sverige AB against the Commission of the European Communities

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/40

         Action brought on 7 October 2004 by Scandlines Sverige AB against the Commission of the European Communities
   (Case T-399/04)
   (2005/C 6/78)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 October 2004 by Scandlines Sverige AB, Helsingborg, Sweden, represented by C. Vajda QC and R. Azelius and K. Azelius, lawyers.
   The applicant claims that the Court should:

               —

               annul the Decision of the Commission of the European Communities, of 23 July 2004, rejecting the applicant's complaint of 2 July 1997;

               —

               remit the case back to the Commission for re-examination of the complaint in the light of the Court's judgment;

               —

               order the Commission to indemnify the applicant for the costs of these proceedings irrespective of the outcome.

         Pleas in law and main arguments
   The applicant is Swedish company whose main activity consists in being the port agent of a ferry-operator. The applicant filed a complaint with the Commission, against Helsingborgs Hamn AB (HHAB), a company responsible for running the port in Helsingborg in Sweden and for setting port charges. The applicant considered that HHAB charged the applicant excessive port charges, abusing its dominant position in breach of Article 82 EC. This complaint was rejected by the contested decision.
   In support of its application the applicant contends that the Commission erred in concluding that port charges to ferry-operators were not excessive. According to the applicant the Commission's cost/price analysis established that HHAB has been making returns, on its ferry business, of over 100 % the value of the equity employed in this business. The applicant argues that such returns cannot be achieved in a competitive market and are therefore excessive, unfair and abusive. It considers that in rejecting that conclusion the Commission misapplied the term ‘economic value’ and failed to apply the principle of proportionality or the correct burden of proof. It also contends that the Commission wrongly rejected the comparison between prices charged to ferry-operators and those charged to cargo-operators as well as the comparison between prices charged at Helsingborg and those charged at Elsinore, at the other end of the same route. The applicant also challenges the Commission's finding that there was no price discrimination in the meaning of Article 82 EC between ferry and cargo operators. According to the applicant, the Commission wrongly concluded that services provided by HHAB to those two branches are not equivalent and that there was no competitive disadvantage to the ferry operators.
   The applicant further claims that the Commission's reasoning is wrong, inadequate and contradictory and for this reason violates Article 253 EC. It also invokes a breach of its right to be heard under Article 6 of Regulation 2842/98 and contends that the Commission failed to carry out a proper investigation within a reasonable time, thereby breaching Article 10 EC, Article 6 of the European Convention of Human Rights and the principle that the Commission must act within a reasonable time.


title: Case T-668/16 P: Appeal brought on 19 September 2016 by HL against the judgment of the Civil Service Tribunal of 20 July 2016 in Case F-112/15 HL v Commission

text:
               28.11.2016

               EN

               Official Journal of the European Union

               C 441/22

      Appeal brought on 19 September 2016 by HL against the judgment of the Civil Service Tribunal of 20 July 2016 in Case F-112/15 HL v Commission
      (Case T-668/16 P)
      (2016/C 441/26)
      Language of the case: English

         Parties

         Appellant: HL (Brussels, Belgium) (represented by: R. Rata, lawyer)

         Other party to the proceedings: European Commission

         Form of order sought by the appellant

      The appellant claims that the Court should:

                  —

                  set aside the judgment of 20 July 2016 of the European Union Civil Service Tribunal in Case F-112/15;

                  —

                  annul the decision of 14 November 2014 of the Appointing Authority of the European Commission, issued by means of the Administrative Notice No 41-2014, establishing the list of promoted officials under the promotion exercise of 2014 in so far as the name of the appellant is not included therein;

                  —

                  order the European Commission to bear its own costs and to pay the costs incurred by the appellant.

         Pleas in law and main arguments

      In support of the appeal, the appellant relies on three pleas in law.

                  1.

                  First plea in law, alleging errors of law in rejecting the applicant’s first plea as unfounded. The appellant argues that the Civil Service Tribunal committed four main errors with regards to his first plea in law:

                              —

                              first, the Tribunal established, in contravention to applicable case law, that it does not need to review the legality of the Appointing Authority’s actions if the Appointing Authority declares that it has satisfied its legal duties and obligations;

                              —

                              second, the Tribunal was erroneous in dismissing the Joint Monitoring Committee Report as evidence and failing to effectively consider the demonstrated incomparability found in the sources of information used by the Appointing Authority;

                              —

                              third, the Tribunal erroneously ignored — without justification — the existence of the argument and evidence put forward by the appellant regarding the mathematical evaluation of the Appointing Authority’s literary assessment methodology as well as the entire second branch of his first plea in law;

                              —

                              fourth, the Tribunal was erroneous in its presumption that absence of an effective evaluation of comparative merits cannot give rise to annulment of a decision on promotion.

                  2.

                  Second plea in law, the appellant argues that the Civil Service Tribunal committed an error of law with regards to his second plea in law:

                              —

                              first by arbitrarily limiting the scope and applicability of Article 25 of the Staff Regulations as well as the appellant’s fundamental rights under Union law in a manner incompatible with the will of the Union legislature; and

                              —

                              second, by rejecting the appellant’s second plea as unfounded on manifestly erroneous grounds.

                  3.

                  Third plea in law, alleging a failure to conduct an impartial and effective judicial review, giving rise to a violation of the appellant’s right to an effective remedy, the appellant argues that:

                              —

                              first, the Judge-Rapporteur made prejudicial statements demonstrating subjective bias in the Preparatory Report which pre-emptively decided the outcome of the appellant’s pleas in law;

                              —

                              second, the President of the Tribunal failed to recuse the Judge and transfer the case to a different Chamber while admitting that the contested prejudicial statements were copied and pasted from a different case involving different applicants;

                              —

                              third, the Tribunal selectively ignored and dismissed crucial arguments and evidence without consideration or review. In conclusion, the appellant considers that his right to an effective remedy has been violated by the Tribunal due to its failure to conduct an impartial and effective judicial review.


title: Case C-351/02: Action brought on 2 October 2002 by the Commission of the European Communities against the Hellenic Republic

text:
C 289/16               EN                    Official Journal of the European Communities                                   23.11.2002
Action brought on 30 September 2002 by the Com-                         Action brought on 2 October 2002 by the Commission of
mission of the European Communities against the Italian                 the European Communities against the Hellenic Republic
                              Republic
                                                                                (Case C-351/02)
                         (Case C-349/02)
                                                                                (2002/C 289/27)
                         (2002/C 289/26)
An action against the Italian Republic was brought before the           An action against the Hellenic Republic was brought before
Court of Justice of the European Communities on 20 Septem-              the Court of Justice of the European Communities on 2 Octo-
ber 2002 by the Commission of the European Communities,                 ber 2002 by the Commission of the European Communities,
represented by Gregorio Valero Jordana and Roberto Amorosi,             represented by Minas Konstantinidis, of its Legal Service.
acting as Agent.
                                                                        The Commission claims that the Court should:
The applicant claims that the Court of Justice should:
                                                                        —     declare that, by failing to adopt, and in any event to
—     declare that, by failing to adopt the laws, regulations
                                                                              communicate, the laws, regulations and administrative
      and administrative provisions necessary to comply with                  provisions necessary to comply with Council Directive
      Directive 2000/14/EC ( 1) of the European Parliament and                1999/31/EC ( 1) of 26 April 1999 on the landfill of waste,
      of the Council of 8 May 2000 on the approximation of
                                                                              the Hellenic Republic has failed to fulfil its obligations
      the laws of the Member States relating to the noise                     under that directive;
      emission in the environment by equipment for use
      outdoors, the Italian Republic has failed to fulfil its
      obligations under Article 22 of that directive;
                                                                        —     order the Hellenic Republic to pay the costs.
—     order the Italian Republic to pay the costs.
                                                                        Pleas in law and main arguments
Pleas in law and main arguments
                                                                        The Member States are required by the binding character of
                                                                        the third paragraph of Article 249 EC and Article 10 EC to
Article 249 EC, by virtue of which directives are binding upon          adopt the measures needed to transpose directives into national
the Member States to which they are addressed, requires                 law before the expiry of the time-limit laid down for that
Member States to observe the time-limits for transposition laid         purpose and to communicate those measures immediately to
down in the directives. The period prescribed in this case              the Commission. That time-limit expired on 16 July 2001
expired on 3 July 2000 without the Italian Republic’s having            without the Hellenic Republic having notified to the Com-
promulgated the provisions necessary to comply with the                 mission the provisions transposing the directive in question
directive referred to in the forms of order sought by the               into national law.
Commission.
( 1) OJ L 162 of 3.7.2000, p. 1.                                        (1 ) OJ L 182 of 16.7.1999, p. 1.


title: Case F-131/12: Order of the Civil Service Tribunal (Third Chamber) of 11 March 2013 — Marcuccio v Commission (Civil service — Article 34(1) and (6) of the Rules of Procedure — Application lodged by fax within the time-limit for bringing proceedings — Lawyer’s hand-written signature different from that on the original application received by post — Action lodged out of time — Manifestly inadmissible)

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/35

         Order of the Civil Service Tribunal (Third Chamber) of 11 March 2013 — Marcuccio v Commission
   (Case F-131/12)
   (Civil service - Article 34(1) and (6) of the Rules of Procedure - Application lodged by fax within the time-limit for bringing proceedings - Lawyer’s hand-written signature different from that on the original application received by post - Action lodged out of time - Manifestly inadmissible)
   2013/C 147/68
   Language of the case: Italian

      Parties

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

      Defendant: European Commission

      Re:

   Application for annulment of the refusal to pay compensation for the harm allegedly suffered by the applicant as a result of his having been retired, together with a claim for damages.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Marcuccio is ordered to pay his own costs.


title: Case T-292/08: Judgment of the General Court of 13 September 2010 — Inditex v OHIM — Marín Díaz de Cerio (OFTEN) (Community trade mark — Opposition proceedings — Application for the Community word mark OFTEN — Earlier national word mark OLTEN — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the goods — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Proof of genuine use of the earlier mark — Article 43(2) and (3) of Regulation No 40/94 (now Article 42(2) and (3) of Regulation No 207/2009) — Subject-matter of the dispute before the Board of Appeal — Articles 61 and 62 of Regulation No 40/94 (now Articles 63 and 64 of Regulation No 207/2009))

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/27

         Judgment of the General Court of 13 September 2010 — Inditex v OHIM — Marín Díaz de Cerio (OFTEN)
   (Case T-292/08) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark OFTEN - Earlier national word mark OLTEN - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Similarity of the goods - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Proof of genuine use of the earlier mark - Article 43(2) and (3) of Regulation No 40/94 (now Article 42(2) and (3) of Regulation No 207/2009) - Subject-matter of the dispute before the Board of Appeal - Articles 61 and 62 of Regulation No 40/94 (now Articles 63 and 64 of Regulation No 207/2009))
   2010/C 301/44
   Language of the case: Spanish

      Parties

      Applicant: Industria de Diseño Textil (Inditex), SA (Arteixo, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Mondéjar Ortuño, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Roberto Fernando Marín Díaz de Cerio (Logroño, Spain)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 24 April 2008 (Case R 484/2007-2) in opposition proceedings between Roberto Fernando Marín Díaz de Cerio and Industria de Diseño Textil (Inditex), SA.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Industria de Diseño Textil (Inditex), SA to pay the costs.

      (1)  OJ C 236, 13.9.2008.


title: Case C-540/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 December 2008 — Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG v Österreich -Zeitungsverlag GmbH

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/18

         Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 December 2008 — Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG v ‘Österreich’-Zeitungsverlag GmbH
   (Case C-540/08)
   (2009/C 69/33)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG

      Defendant:‘Österreich’-Zeitungsverlag GmbH
   Questions referred

               1.

               Do Articles 3(1) and 5(5) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) (1) or other provisions of that Directive preclude a national provision which makes it illegal to announce, offer or give bonuses, free of charge, with periodicals and newspapers, and to announce bonuses, free of charge, with other goods or services, apart from exhaustively specified exceptions, without it being necessary in any particular case to consider whether such a commercial practice is misleading, aggressive or otherwise unfair, even where that provision serves not only to protect consumers, but also serves other purposes which are not covered by the material scope of the Directive, for example, the maintenance of media diversity or the protection of weaker competitors?

               2.

               If the first question is answered in the affirmative:
               Is the chance of taking part in a prize competition, which is acquired with the purchase of a newspaper, an unfair commercial practice within the meaning of Article 5(2) of the Unfair Commercial Practices Directive merely because that chance is, for at least some of those to whom the offer is addressed, not the only, but the decisive reason for purchasing the newspaper?

      (1)  OJ L 149, p. 22.


title: Case C-311/07: Judgment of the Court (Eighth Chamber) of 17 July 2008 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 89/105/EEC — Inclusion of medicinal products for human use in the national health insurance system — Article 6(1) — List of medicinal products covered by the national health insurance system establishing three different categories of reimbursement subject to conditions — Time-limit for adopting a decision on an application for inclusion of a medicinal product in the categories of that list offering the most favourable reimbursement conditions)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/16

         Judgment of the Court (Eighth Chamber) of 17 July 2008 — Commission of the European Communities v Republic of Austria
   (Case C-311/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 89/105/EEC - Inclusion of medicinal products for human use in the national health insurance system - Article 6(1) - List of medicinal products covered by the national health insurance system establishing three different categories of reimbursement subject to conditions - Time-limit for adopting a decision on an application for inclusion of a medicinal product in the categories of that list offering the most favourable reimbursement conditions)
   (2008/C 223/25)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: B. Stromsky and B. Schima, acting as Agents)

      Defendant: Republic of Austria (represented by: C. Pesendorfer, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Article 6(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems (OJ 1989 L 40, p. 8) — National legislation on social security establishing a list of medicinal products covered by the health insurance system comprising three categories of medicinal products differing according to their conditions of reimbursement — Failure to have set a time-limit as required by Article 6(1) of Directive 89/105/EEC for decisions relating to the inclusion of medicinal products in the most favourable categories
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to lay down a time-limit, in accordance with Article 6(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems, for the adoption of decisions relating to applications for inclusion of medicinal products in the yellow or green categories of the medicinal products reimbursement code provided for by the general Law on social insurance (Allgemeines Sozialversicherungsgesetz), as amended by the Law of 2003 amending social insurance (Sozialversicherungs-Änderungsgesetz 2003), the Republic of Austria has failed to fulfil its obligations under that provision.

               2.

               Order the Republic of Austria to pay the costs.

      (1)  OJ C 211, 8.9.2007.


title: Case T-369/08: Judgment of the General Court of 17 December 2010 — EWRIA and Others v Commission (Dumping — Imports of iron or steel ropes and cables originating in China, India, South Africa, Ukraine and Russia — Refusal to initiate a partial interim review of the anti-dumping duty imposed)

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/10

         Judgment of the General Court of 17 December 2010 — EWRIA and Others v Commission
   (Case T-369/08) (1)

   (Dumping - Imports of iron or steel ropes and cables originating in China, India, South Africa, Ukraine and Russia - Refusal to initiate a partial interim review of the anti-dumping duty imposed)
   2011/C 38/15
   Language of the case: English

      Parties

      Applicants: European Wire Rope Importers Association (EWRIA) (Hemer, Germany); Câbleries namuroises SA (Namur, Belgium); Ropenhagen A/S (Vallensbaek Strand, Denmark); ESH Eisen- und Stahlhandelsgesellschaft mbH (Kaarst, Germany); Heko Industrieerzeugnisse GmbH (Hemer); Interkabel Internationale Seil- und Kabel-Handels GmbH (Solms, Germany); Jose Casañ Colomar, SA (Valencia, Spain); and Denwire Ltd (Dudley, United Kingdom) (represented by: T. Lieber, lawyer)

      Defendant: European Commission (represented by: C. Clyne and H. van Vliet, Agents)

      Re:

   APPLICATION for annulment of the decision of the Commission of 4 July 2008 rejecting the applicants’ request for initiation of a partial interim review of the anti-dumping measures applicable to imports of iron or steel ropes and cables.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the European Wire Rope Importers Association (EWRIA), Câbleries namuroises SA, Ropenhagen A/S, ESH Eisen- und Stahlhandelsgesellschaft mbH, Heko Industrieerzeugnisse GmbH, Interkabel Internationale Seil- und Kabel-Handels GmbH, Jose Casañ Colomar SA and Denwire Ltd to pay the costs.

      (1)  OJ C 301, 22.11.2008.


title: Case C-126/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 8 March 2012 — Brück Edgar v Agentur für Arbeit Villingen-Schwenningen — Familienkasse

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/2

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 8 March 2012 — Brück Edgar v Agentur für Arbeit Villingen-Schwenningen — Familienkasse
   (Case C-126/12)
   2012/C 184/03
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Brück Edgar

      Defendants: Agentur für Arbeit Villingen-Schwenningen — Familienkasse

      Question referred

   Are Article 13(1) and Article 13(2)(a) of Regulation No 1408/71 (1) to be interpreted as precluding the granting of (differential) child benefit by a Member State of residence, in cases where a person entitled to child benefit — like the other parent — is a cross-border commuter employed in Switzerland and draws family benefits there in respect of his children living in the Member State of residence which are lower than the child benefit provided for in the Member State of residence?

      (1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, OJ 1971 L 149, p. 2 (English special edition: Series I Chapter 1971(II) P. 0416), as amended by Council Regulation (EC) No 118/97 of 2 December 1996, OJ 1997 L 28, p. 1, and Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, OJ 2005 L 117, p. 1.


title: Case C-180/14: Action brought on 11 April 2014 — European Commission v Hellenic Republic

text:
               16.6.2014

               EN

               Official Journal of the European Union

               C 184/19

         Action brought on 11 April 2014 — European Commission v Hellenic Republic
   (Case C-180/14)
   2014/C 184/23
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: Μ. Patakia and M. van Beek, acting as Agents)

      Defendant: Hellenic Republic

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that by failing to establish and/or by not having implemented a maximum weekly working time which does not exceed 48 hours and by not having ensured either a minimum daily and weekly rest period or a compensatory rest period which directly follows the working time for which compensation is supposed to be provided, the Hellenic Republic failed to fulfil its obligations under Articles 3, 5 and 6 of Directive 2003/88/ΕC; (1)

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

               1.

               Directive 2003/88 lays down common minimum standards for the organisation of working time, for the protection of workers’ health and safety and in particular an upper limit for the average weekly working time (Article 6) and a minimum daily and weekly rest period (Articles 3, 5 and 6 thereof).

               2.

               Greece transposed the directive into national law, so that its application extended to doctors who are employed in the public health services, by means of Presidential Decree 88/1999. Greece then transposed the directive in so far as it concerned trainee doctors, by means of Presidential Decree 76/2005.

               3.

               Nonetheless, Greece then issued a series of legislative measures which suspended the application of the implementing legislation to salaried doctors and trainee doctors within the public services.

               4.

               Further, from the complaints which were submitted to the Commission by ten different unions of Greek doctors, it is apparent that those workers were obliged under the national legislation, and in practice, to work an average working week of between 60 and 72 hours (salaried doctors) and between 71 and 93 hours (trainee doctors). They were also obliged to work up to 32 hours without interruption at their place of work.

               5.

               Further, there was signed a collective agreement and there were adopted Laws 37542009 and 3868/2010 which incorporated provisions of that collective agreement. The national law continues not to define an effective upper limit of time up to which it is possible for the workers concerned to be compelled to work, in that, in addition to regular duties, it is provided that ‘the hospital doctors of the National Health Service, the university doctors and trainee doctors shall carry out the on-call duties required to ensure the safe operation of the hospitals and health centres’.

               6.

               Moreover, as those provisions are applied in practice, the minimum daily and weekly rest period is not ensured, in that (i) not all forms of on-call duty are recognised as working time and (ii) there is no provision for equivalent periods of compensatory rest which are provided directly after the additional working time for which that rest is supposed to be compensation.

               7.

               The abovementioned legislation and practice seriously diverge from the minimum requirements imposed by Directive 2003/88 and constitute an infringement of Articles 3, 5 and 6 of the directive.

      (1)  Directive 2003/88/ΕC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p 9)


title: Case C-559/08 P: Appeal brought on 9 February 2009 by Deepak Rajani (Dear!Net Online) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 26 November 2008 in Case T-100/06 Deepak Rajani (Dear!Net Online) v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/10

         Appeal brought on 9 February 2009 by Deepak Rajani (Dear!Net Online) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 26 November 2008 in Case T-100/06 Deepak Rajani (Dear!Net Online) v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-559/08 P)
   (2009/C 82/19)
   Language of the case: English
   Parties

      Appellant: Deepak Rajani (Dear!Net Online) (represented by: A. Kockläuner, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Artoz-Papier AG
   Form of order sought

               —

               Set aside in whole the Decision of the Court of First Instance dated 26 November 2008, Case T-l00/06.

               —

               Order OHIM to pay the costs of the proceedings before the Court of Justice.

         Pleas in law and main arguments
   The appellant submits that the contested judgment should be annulled on the following grounds:

               —

               the Court of First Instance, when rejecting the first plea in law, misinterpreted Article 43 Section 2 and Section 3 of the Community Trademark Regulation (CTMR) in conjunction with Article 4 Section 1 of the Madrid Agreement;

               —

               the Court of First Instance, when rejecting the first plea in law, infringed Article 6 of the Treaty on the European Union (Consolidated Version) as well as Article 6 in connection with Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR);

               —

               the Court of First Instance, when rejecting the first plea in law, infringed Article 10 of Directive 89/104 (EC) (1) in conjunction with Article 1 of Directive 89/104 (EC);

               —

               the Court of First Instance, when rejecting the second plea in law, infringed Article 79 CTMR by not taking into account that the opponent acted in bad faith;

               —

               the Court of First Instance, when rejecting the second plea in law, wrongly viewed the trademarks at issue as confusingly similar and thus, infringed Article 8 Section 1 b) CTMR;

               —

               the Court of First Instance, when rejecting the second plea in law, infringed Article 135 Section 4 of the Rules of Procedure of the Court of First Instance by not taking into account the supportive evidence as annexes to the court action before it;

               —

               the Court of First Instance, when rejecting the second plea in law, infringed Articles 49 and 50 in conjunction with Article 220 of the Treaty on European Union (Consolidated Version);

               —

               the Court of First Instance, when rejecting the second plea in law, did not take into account that OHIM misused their power.

      (1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ L 40, p. 1).