title: Case T-157/16 P: Appeal brought on 14 April 2016 by Ingrid Fedkte against the order of the Civil Service Tribunal of 5 February 2015 in Case F-107/15, Fedkte v EESC

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/43

         Appeal brought on 14 April 2016 by Ingrid Fedkte against the order of the Civil Service Tribunal of 5 February 2015 in Case F-107/15, Fedkte v EESC
   (Case T-157/16 P)
   (2016/C 191/57)
   Language of the case: French

      Parties

      Appellant: Ingrid Fedkte (Wezembeek-Oppem, Belgium) (represented by: M.- A. Lucas, lawyer)

      Other party to the proceedings: European Economic and Social Committee

      Form of order sought by the appellant

   The appellant claims that the General Court should:

               —

               annul the order of 5 February 2016 of the Civil Service Tribunal (Second Chamber) in Case F-107/15;

               —

               refer the case back to the Civil Service Tribunal for a ruling on the substance of the action;

               —

               make an appropriate order as to costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an error in law and/or an inadequate statement of reasons vitiating the contested order, in that the Civil Service Tribunal (CST) held that, in paragraphs 19 to 21 and 25 of that order, both in the case of a request for review of a decision which has not been contested within the prescribed time-limit and in that of a request which indirectly calls into question such a decision, for a fact relied on in support of the request to be considered as ‘new’, it is a requirement that neither the appellant nor the administration was, or could have been, aware of it at the time of the adoption of the decision which has become final, and the CST has applied that principle in paragraphs 27 to 32 of the order, although according to settled case-law the lack of awareness of the fact relied on is not required for requests for review.

               2.

               Second plea in law, alleging an error in law and/or distortion of the material in the file and inadequate reasoning that vitiated the contested order, in that the CST held that, in paragraph 32 of that order, on the grounds that no new and substantial fact substantiated the request for review, the pre-litigation procedure had not followed the normal course and the claims made against the decision of 30 September 2014 and the dismissal of the complaint of 22 April 2015 were inadmissible; whereas the purely confirmatory nature of those decisions presupposed not only that there had been no prior review but also that the decisions contained no new element, and that, as the applicant had claimed, the decision of 30 September 2014 included a new element compared to that of 7 April 2014, just as the decision of 22 April 2015 did compared to that of 30 September 2014.

               3.

               Third plea in law, alleging an error in law and/or distortion of the material in the file and failure to answer the appellant’s line of argument that vitiated the contested order, in that the CST held that, in paragraph 26 of that order, the ‘new’ nature of the fact relied on in support of the request for review presupposed that the parties were not, or could not have been, aware of it, and that the appellant had not mentioned in her request the new and substantial facts that were capable of substantiating the submission of the request, but invoked, by reference to her head of unit’s note, the amendment of the Staff Regulations; although lack of awareness of the fact relied on was not necessary in the present case, the appellant had, as she had claimed, indicated in her request for review itself the broadening of the legal basis and, by reference to her head of unit’s note, that the administration had not paid sufficient attention to the wording of the new Staff Regulations, which amounted to new and substantial elements.

               4.

               Fourth plea in law, alleging infringement of the rules of evidence and of the principle of objectivity, in that the CST held that, in paragraph 28 of the contested order, the appellant had not given any indication regarding the date on which the administration had, or could have, become aware of the future departure on maternity and parental leave of her colleague and, in paragraph 29 of that order, that it was not inconceivable that this could have been the case on 7 April 2014, taking into account the duration of leave of that kind as set out in the Staff Regulations, the predictability long in advance of the date of birth and the custom of informing the department of a long-term absence as soon as possible, inferring from it in paragraph 30 to 32 of the order that the appellant had not demonstrated that she herself nor the administration were not, or could not have been, aware of the future absence of her colleague on 7 April 2014, that her request for re-examination was not substantiated by any new and substantial fact and her claims were inadmissible; whereas evidence of a negative fact and on the part of a third party was impossible to adduce, it was for the EESC to state the date of the request for leave, and the CST could not act on the basis of successive presumptions, nor on a mere assumption in order to reverse the burden of proof and substantiate its findings.


27.7.2002              EN                      Official Journal of the European Communities                                   C 180/35
Action brought on 7 June 2002 by Giorgio Lebedef against                         Removal from the register of Case T-113/97 (1)
         Commission of the European Communities
                                                                                (2002/C 180/61)
                         (Case T-175/02)
                                                                                (Language of the case: French)
                         (2002/C 180/60)
                                                                          By order of 21 February 2002 the President of the First
                    (Language of the case: French)                        Chamber of the Court of First Instance of the European
                                                                          Communities ordered the removal from the register of Case
                                                                          T-113/97: Pierre Tomarchio v the Court of Auditors of the
                                                                          European Communities.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 7 June 2002 by Giorgio Lebedef,                   (1) OJ C 199 of 28.6.1997.
residing in Senningerberg (Luxembourg), represented by Gilles
Bounéou, lawyer, with an address for service in Luxembourg.
The applicant claims that the Court should:
                                                                                Removal from the register of Case T-2/01 (1)
—     annul decision 9567 of 28 February 2002 of the Director
      General of DG ADMIN not to add the applicant’s name                                         (2002/C 180/62)
      to the list of most deserving officials and not to promote
      him to Grade B 1 in the 2000 promotions procedure;                                     (Language of the case: Dutch)
—     make an order as to costs requiring the European
      Commission to pay them.                                             By order of 29 April 2002 the President of the First Chamber
                                                                          of the Court of First Instance of the European Communities
                                                                          ordered the removal from the register of Case T-2/01: Vereni-
Pleas in law and main arguments                                           ging Nederlandse Cementindustrie (VNC) v Commission of the
                                                                          European Communities.
In the present application, the applicant, an official working            (1) OJ C 95 of 24.3.2001.
for the defendant, challenges the appointing authority’s refusal
to promote him to Grade B 1 during the 2000 promotions
procedure.
In support of his claims, he pleads:
                                                                                Removal from the register of Case T-3/01 (1)
—     Infringement of Article 45(1) of the Staff Regulations and
      of the principle of non-discrimination;                                                     (2002/C 180/63)
—     Breach of the rights of the defence;                                                   (Language of the case: Dutch)
—     Disregard in the present case of the obligation to provide
      reasons;                                                            By order of 29 April 2002 the President of the First Chamber
                                                                          of the Court of First Instance of the European Communities
—     Breach of the principle that legitimate expectations must           ordered the removal from the register of Case T-3/01: Eerste
      be protected, and of the duty of the administration to              Nederlandse Cement Industrie (ENCI) NV v Commission of the
      have regard for the wellbeing of officials.                         European Communities.
                                                                          (1) OJ C 95 of 24.3.2001.


title: Case C-103/08: Judgment of the Court (First Chamber) of 1 October 2009 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg — Austria) — Arthur Gottwald v Bezirkshauptmannschaft Bregenz (Freedom of movement for persons — Citizenship of the Union — Article 12 EC — Issue of an annual toll disc in respect of a motor vehicle free of charge to disabled persons — Provisions restricting the issue of that disc to disabled persons resident or ordinarily resident in national territory)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/8

         Judgment of the Court (First Chamber) of 1 October 2009 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Vorarlberg — Austria) — Arthur Gottwald v Bezirkshauptmannschaft Bregenz
   (Case C-103/08) (1)

   (Freedom of movement for persons - Citizenship of the Union - Article 12 EC - Issue of an annual toll disc in respect of a motor vehicle free of charge to disabled persons - Provisions restricting the issue of that disc to disabled persons resident or ordinarily resident in national territory)
   2009/C 282/13
   Language of the case: German

      Referring court

   Unabhängiger Verwaltungssenat des Landes Vorarlberg

      Parties to the main proceedings

      Applicant: Arthur Gottwald

      Defendant: Bezirkshauptmannschaft Bregenz

      Re:

   Reference for a preliminary ruling — Unabhängiger Verwaltungssenat des Landes Vorarlberg (Austria) — Interpretation of Article 12 of the EC Treaty — Discrimination on grounds of nationality — National legislation under which a toll disc made available free of charge to disabled persons is granted only to persons resident or ordinarily resident in national territory.

      Operative part of the judgment

   Article 12 EC must be interpreted as meaning that it does not preclude a national rule, such as that at issue in the main proceedings, which restricts the issue of an annual toll disc free of charge to those disabled persons who are resident or ordinarily resident in the territory of the Member State concerned, including also those persons who regularly travel to that State for professional or personal reasons.

      (1)  OJ C 142, 7.6.2008.


title: Case T-555/11: Judgment of the General Court of 13 November 2012 — tesa v OHIM — Superquímica (tesa TACK) (Community trade mark — Opposition proceedings — Application for Community figurative mark tesa TACK — Earlier national figurative mark TACK Ceys — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               22.12.2012

               EN

               Official Journal of the European Union

               C 399/21

         Judgment of the General Court of 13 November 2012 — tesa v OHIM — Superquímica (tesa TACK)
   (Case T-555/11) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark tesa TACK - Earlier national figurative mark TACK Ceys - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2012/C 399/37
   Language of the case: English

      Parties

      Applicant: tesa SE (Hamburg, Germany) (represented by: F. Schwab, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral and Ó. Mondéjar Ortuño, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: La Superquímica, SA (L’Hospitalet de Llobregat, Spain) (represented by: A. Canela Giménez, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 5 July 2011 (Case R 866/2010-1) relating to opposition proceedings between La Superquímica, SA and tesa SE.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders tesa SE to pay the costs.

      (1)  OJ C 6, 7.1.2012.


title: Action brought on 16 April 1997 by Richie Ryan against the Court of Auditors (Case T-121/97)

text:
28 . 6 . 97              EN                   Official Journal of the European Communities                              No C 199/29
Action brought on 16 April 1997 by Paul Keyaerts against                      Members of the Court of Auditors, to decide at the
         the Commission of the European Communities                           same time on an appropriate increase in the rate of the
                          ( Case T-l 14/97)                                   applicant's pension, as provided for by Article 18
                                                                              of Council Regulation ( EEC, Euratom, ECSC)
                             ( 97/C 199/75                                    No 2290/77 .
                  (Language of the case: French)
                                                                         — order the defendant to pay the costs.
An action against the Commission of the European
Communities was brought before the Court of First                        Pleas in law and main arguments adduced in support:
Instance of the European Communities on 16 April 1997
by Paul Keyaerts, residing at Overijse ( Belgium ),
represented by Nicolas Lhoest, of the Brussels Bar, with an              The applicant, a former Member of the Court of Auditors
address for service in Luxembourg at the offices of Fidu                who ceased to hold office in February 1994, states that he
ciaire Myson Sari , 30 Rue de Cessange.                                  first became entitled to payment of his pension on 1 March
                                                                         1997. On 27 February he received the calculation of the
The applicant claims that the Court should:                              net amount of his pension, from which he noted that,
                                                                         pursuant to Article 2 of Regulation ( EEC, Euratom,
— annul the Commission's decision of 17 June 1996                        ECSC ) No 840/95 of 10 April 1995 amending Regulation
                                                                         ( EEC, Euratom, ECSC ) No 2290/77, his pension had not
     rejecting the applicant's request that it give
     consideration to the possible application of Article 31             been increased following the increase in the salaries
                                                                         granted by Article 1 of that Regulation to the President
     ( 2 ) of the Staff Regulations,                                     and    the  Members     of the   Court   of Auditors .  That
                                                                         individual decision constitutes        the   measure    being
— annul, in so far as may be necessary, the decision                     challenged in this case .
     adopted by the Commission on 27 December 1996
     expressly rejecting the applicant's complaint,
                                                                         The applicant pleads first that Article 2 of Regulation
— order the defendant to pay all the costs.                              ( EEC, Euratom, ECSC ) No 840/95 is unlawful : it provides
                                                                         expressly that an increase in pensions acquired will not
Pleas in law and main arguments adduced in support:                      take place even though Article 1 of that same regulation
                                                                         lays down the amounts of the Increase in the basic salaries
The pleas in law and main arguments are the same as in                   and monthly transitional allowances of the President and
                                                                         Members of the Court of Auditors . He considers that that
Case T-l 6/97 (').
                                                                         provision is incompatible with Article 18 of Regulation
(') OJ No C 74 , 8 . 3 . 1997, p . 27.
                                                                         ( EEC, Euratom, ECSC ) No 2290/77, according to which,
                                                                         should the Council decide to increase the basic salary, it
                                                                         shall at the same time decide on an appropriate increase in
                                                                         the rates of existing pensions . He points out, secondly,
                                                                         that the provision in question constitutes an amendment
                                                                         that is lacking any valid grounds on the basis of the
                                                                         previous settled practice of the Council .
Action brought on 16 April 1997 by Richie Ryan against
                       the Court of Auditors
                           ( Case T-121 /97 )                            In the alternative, he claims that Regulation ( EEC,
                                                                         Euratom, ECSC ) No 840/95 does not apply to his case,
                              ( 97/C 199/76 )                            inasmuch as it refers to acquired pensions, that is to say to
                                                                         pensions that have been settled when it entered into force.
                  (Language of the case: French)                         The applicant's pension had not been settled, in the sense
                                                                         that it had not been paid, prior to the date on which the
An action against the Court of Auditors was brought                      Regulation entered into force — 1 May 1995 — and was
before the Court of First Instance of the European                       only settled at a much later date .
Communities on 16 April 1997 by Richie Ryan, resident
in Dublin ( Ireland ), represented by Georges Vandersanden,
of the Brussels Bar, with an address for service in                      The applicant also points out that, on the basis of
Luxembourg at the Offices of Fiduciaire Myson Sari, 30                   Article 18 of Regulation ( EEC, Euratom, ECSC ) No 2290/
Rue de Cessange .                                                         77 which was applicable when he took up his duties as a
                                                                         Member of the Court of Auditors, he was legitimately
The applicant claims that the Court should:                              entitled to expect that the amount of his pension would be
                                                                          increased appropriately, when the basic salary was
                                                                          increased, by a decision of the Council taken at the same
— annul the decision settling the applicant's pension                    time . He accordingly considers that in not complying with
     rights as first brought to his attention on 27 February
                                                                         that provision the Council has disregarded the principle of
      1997 with effect from 1 March 1997, inasmuch as
                                                                          the protection of legitimate expectations .
     that decision, pursuant to Article 2 of Council
      Regulation ( EEC, Euratom, ECSC ) No 840/95 ,
      disregards the Council's obligation, if it decides to               Lastly, he pleads that the principle of non-discrimination
      increase the basic salaries of the President and the                has been infringed, pointing out that the system
 ---pagebreak--- No C 199/30            EN                 Official Journal of the European Communities                                    28 . 6 . 97
introduced by Article 2 of Regulation ( EEC, Euratom,                Pleas in law and main arguments adduced in support:
ECSC ) No 840/95 creates an unjustifiable and unfair
difference    in   treatment    as  between   Presidents   and
Members of the Court of Auditors who are not yet in                  In 1994 the Italian Government notified the Commission
receipt of a pension and those who are, and also as
                                                                     of Law No 481 of 3 August 1994 and Decree No 683
between the pensioners themselves, according to the date
                                                                     of the Ministro dell'Industria , del Commercio e
taken into account for the purpose of determining when a
                                                                     dell'Artigianato ( Ministry of Industry, Commerce and
pension is acquired.
                                                                     Crafts ) of 12 October 1994, both of which were intended
                                                                     to facilitate the implementation of a plan for the
                                                                     restructuring of the Italian steel industry through aid for
                                                                     the closure of production units and for the re-training of
                                                                     personnel for work in economic sectors other than steel .
                                                                     By decision of 12 December 1994 the Commission
                                                                     approved those measures .
Action brought on 18 April 1997 by Ferriera Lamifer
S.p.A. against the Commission of the European
                           Communities
                        ( Case T-122/97 )
                                                                     By the first contested decision, adopted on the basis of the
                                                                     Steel Aid Code (') and the above decision of 12 December
                          ( 97/C 199/77 )                            1994, the Commission declared that the aid planned in
                                                                     favour of, inter alia, the applicant undertaking, was
                                                                     incompatible with the common market, on the assumption
                 (Language of the case: Italian)                     that aid for closures is to be granted solely to
                                                                     undertakings regularly manufacturing products for the
                                                                     steel market within the meaning of Article 4 ( 2 ) of the
 An action against the Commission of the European                    Code .
 Communities was brought before the Court of First
 Instance of the European Communities on 18 April 1997
 by Ferriera Lamifer S.p.A. , represented by Camine Punzi
 and Filippo Satta, of the Rome Bar, with an address for             The applicant, a company which possesses a hot-rolling
 service in Luxembourg at the Chambers of Charles Turk,              mill for the production of reinforcing rods for cement,
 13B Avenue Guillaume .                                              points out first of all that Article 4 ( 2 ) of the Code
                                                                      recognizes aid as compatible with the common market on
                                                                     condition that the undertakings in question, inter alia,
 The applicant claims that the Court should annul and                 ' have been regularly producing ECSC iron and steel
 amend :                                                              products up to the date of notification of the aid'. On that
                                                                      point, the applicant argues that the criterion for verifying
                                                                      the regularity of production, as further defined by the
 — Commission Decision No 4288 of 18 December 1996 ,                  Commission in its decision of 12 December 1994 , is
      notified to the applicant by post on 1 1 March 1997             invalid .
      by the Direzione Generale Produzione Industriale del
      Ministero dell'Industria della Repubblica Italiana
      ( General Industrial Production Directorate of the              In the first place, it is unreasonable to take 1993 — the
      Italian Ministry of Industry ), finding 'the State aid          year immediately preceding the adoption of national
      measures envisaged by Italy as part of the                      measures to encourage the closure of steel plants — as the
      restructuring of its private steel industry', in favour         sole reference period . Since the Code did not specify an
      inter alia of Ferriera Lamifer, incompatible with the           initial date for the reference period for calculating
      common market within the meaning of Article 4 ( c ) of          regularity of production, it seems totally at odds with the
      the ECSC Treaty and refusing to authorize the                    Code itself to restrict it so drastically. Secondly, it is
    , granting of such aid,                                           arbitrary and unfounded to take the MPP ( maximum
                                                                      possible production of an undertaking whose production
                                                                      timetable is based on the 24-hour day ) as a comparator
 — Commission Decision No 17924 of 12 December
                                                                       against which to measure actual production over the
      1994 in so far as, in identifying the criteria laid down         reference period. On that point the applicant points out
      by the second indent of Article 4 ( 2 ) of Commission            that the Code merely mentions ' regularity' of production,
      Decision No 3855/91 /ECSC of 27 November 1991
                                                                       by which it obviously means production according to the
      establishing Community rules for aid to the steel                undertaking's past /practice, and certainly not by reference
      industry ('the Aid Code'), it provides that ' regular            to a factor such as the MPP which is inappropriate for
      production' is to be interpreted as the manufacture of           that purpose .
      steel products 'for the year 1 993 ... on average for at
      least one shift per day — that is, at least eight hours
      per day — five days per week ',
                                                                       Lastly, the applicant maintains that the statement of
                                                                       reasons is defective, in so far as the contested decision did
  — all other measures entailed by, connected with or                  not take into account its particular circumstances .
       howsoever consequential to, the above measures .                Specifically, the fixing of a single comparator for both


title: Case T-372/10: Action brought on 3 September 2010 — Bolloré v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/35

         Action brought on 3 September 2010 — Bolloré v Commission
   (Case T-372/10)
   ()
   2010/C 301/60
   Language of the case: French

      Parties

      Applicant: Bolloré (Ergué-Gabéric, France) (represented by: P. Gassenbach, C. Lemaire and O. de Juvigny, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul Articles 1 and 2 of Commission Decision C(2010) 4160 final of 23 June 2010 relating to a proceeding under Article 101 TFUE and Article 53 of the EEA Agreement (Case COMP/36.212 — Carbonless paper);

               —

               In the alternative, reduce very substantially the amount of the fine imposed on Bolloré by Article 2 of the said decision;

               —

               Order the European Commission to pay all the costs.

      Pleas in law and main arguments

   In the present action, the applicant seeks principally annulment of Commission Decision C(2010) 4160 final of 23 June 2010 relating to a proceeding under Article 101 TFUE and Article 53 of the EEA Agreement (Case COMP/36.212 — Carbonless paper) adopted by the Commission following the judgment of the Court of Justice in Case C-327/07 P Bolloré v Commission in which the Court held that Bolloré’s rights of defence had not been observed inasmuch as Bolloré had been sanctioned, not merely as the parent company of Copigraph, but also on account of its direct and personal involvement in the infringement, even though the statement of objections referred only to its liability as the parent company of Copigraph.
   In support of its action, the applicant puts forward six pleas in law alleging:

               —

               an infringement of Articles 6 and 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) and Articles 41, 47 and 49 of the Charter of fundamental rights of the European Union (‘the Charter’) inasmuch as the sanction imposed on Bolloré was adopted in breach of the principles of the legality of infringements and penalties, legal certainty, the personal nature of penalties and the right to a fair trial in so far as:

                           —

                           the fact that Bolloré was sanctioned as a parent company constitutes a breach of the principles of the legality of infringements and penalties and of legal certainty, referred to in Articles 6 and 7 of the ECHR and Articles 47 and 49 of the Charter, and of the principle of the personal nature of penalties;

                           —

                           Bolloré's hearing, in which no Member of the Commission took part, constitutes an infringement of the right to a fair trial laid down in Article 6 of the ECHR and Articles 41 and 47 of the Charter, since Bolloré was thus not heard by those who were to judge it.

                           —

                           the conditions under which the initial decision was ‘re-adopted’ infringe, from several points of view, the impartiality which is part of the right to a fair trial laid down in Article 6 of the ECHR and Articles 41 and 47 of the Charter;

               —

               an infringement of Article 101 TFEU and Article 25 of Regulation No 1/2003 (1) in as much as the Commission sanctioned Bolloré for infringements which are now time barred;

               —

               an infringement of the principle of equal treatment inasmuch as Bolloré was sanctioned in its capacity as parent company of Copigraph at the time of the facts;

               —

               an infringement of Article 101 TFEU, Article 6 of the ECHR and Articles 41 and 47 of the Charter by the communication of a second statement of objections within an unreasonable period of time, thereby definitively preventing Bolloré from defending itself against the complaints relating, on the one hand, to its liability as the parent company of Copigraph and, on the other, to its personal involvement in the infringement;

               —

               in the alternative, an infringement of the 1998 Guidelines on the setting of fines (2), the principle of the individual nature of penalties, of proportionality in fixing the amount of the fine and of the obligation to state reasons, and

               —

               in the alternative, an infringement of the 1996 notice on the non-imposition or reduction of fines (3) and of the principles of proportionality and equal treatment.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003, L 1, p. 1).

      (2)  Guidelines on the method of setting fines imposed pursuant to Article 15 (2) of Regulation No 17 and Article 65 (5) of the ECSC Treaty (OJ 1998, C 9, p. 3).

      (3)  Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996, C 207, p. 4).


title: Case T-4/01: Action brought on 5 January 2001 by Renco S.A. against the Council of the European Union

text:
10.3.2001             EN                     Official Journal of the European Communities                                         C 79/25
Pleas in law and main arguments                                         Proprietor of the right to    The applicant
                                                                        the trade mark or sign
The pleas in law and main arguments are analogous to those              asserted by way of oppo-
relied upon in Case T-379/00.                                           sition in the opposition
                                                                        proceedings:
                                                                        Trade mark or sign            Registered German figurative
                                                                        asserted by way of oppo-      mark ‘ILS’ for ‘educational and
                                                                        sition in the opposition      teaching material (except for
                                                                        proceedings:                  apparatus) in the form of printed
                                                                                materials; data carriers of all kind
Action brought on 30 December 2000 by the Institut für                                                with programmes for educational
Lernsysteme against the Office for Harmonisation in the                                               purposes; development and run-
                        Internal Market                                                               ning of correspondence courses’
                                                                                in Classes 9, 16 and 41
                        (Case T-388/00)
                                                                        Decision of the Oppo-         Rejection of the opposition
                                                                        sition Division:
                         (2001/C 79/44)
                                                                        Decision of the Board of      Rejection of the opposition
                                                                        Appeal:
                  (Language of the case: English)
                                                                        Grounds of claim:             — infringement of essential for-
An action against the Office for Harmonisation in the Internal                                            mal provisions, e.g. Article 43
Market was brought before the Court of First Instance of the                                              (1) of Council Regulation on
European Communities on 30 December 2000 by the Institut                                                  the Community Trade Mark
für Lernsysteme, Hamburg, represented by Jörg Schneider                                               — misapplication of the prin-
of CMS Hasche Sigle Eschenlohr Peltzer Schäfer, Stuttgart                                                 ciple that the closer the goods
(Germany).                                                                                and services are to one anoth-
                                                                                er, the greater the distance the
A further party to the proceedings before the Board of Appeal                                             marks must observe from one
was ELS Educational Services, Inc., Culver City, California,                                              another
United States.
The applicant claims that the Court should:
—     annul the decision of the Office dated 18.10.2000
      — R 074/2000-3 and reject the registration of the
      Community trade mark 000131276 ‘ELS’;
                                                                        Action brought on 5 January 2001 by Renco S.A. against
—     order the Office to bear the costs.                                             the Council of the European Union
                                                                                (Case T-4/01)
Pleas in law and main arguments
                                                                                (2001/C 79/45)
Applicant for the Com-        ELS Educational Services, Inc.
munity trade mark:
                                                                                (Language of the case: French)
The trade mark con-           The verbal mark ‘ELS’ — appli-
cerned:                       cation 131276, relating to ‘edu-
                              cational textbooks and printed            An action against the Council of the European Union was
                              materials, namely student work-           brought before the Court of First Instance of the European
                              books, catalogs, teaching man-            Communities on 5 January 2001 by Renco S.A., established in
                              uals, printed instruction materials       Milan (Italy), represented by Denis Philippe, of the Luxembourg
                              and charts and booklets designed          Bar, and Francesco Apruzzi, of the Brussels Bar.
                              for students seeking to learn
                              English as a second language’ in          The applicant claims that the Court should:
                              Class 16; ‘rendering technical
                              assistance in connection with the         —     order the defendant to pay to the applicant compensation
                              establishment and/or operation of               totalling 6 863 000 euro, together with compensatory
                              language schools’ in Class 35 and               interest with effect from the date of the event giving rise
                              ‘educational services, namely pro-              to the damage — namely, 14 April 2000 — and legal
                              viding English language instruc-                interest from the date of delivery of the judgment,
                              tion’ in Class 41                               composed of:
 ---pagebreak--- C 79/26                 EN                     Official Journal of the European Communities                                     10.3.2001
       —    24 000 000 euro for loss of the chance of being               The applicant claims that the Court should:
            awarded the contract in issue;
                                                                          —     annul the decision of the appointing authority of 11 Janu-
       —    63 000 euro for the expenses and ancillary costs                    ary 2001 imposing on the applicant the disciplinary
            agreed to in the context of participation in the                    measure of downgrading from A 5 to A 6, on the same
            restricted invitation to tender;                                    step, as provided for in Article 86(2)(e) of the Staff
                                                                                Regulations;
       —    2 000 000 euro for the non-material damage suf-
            fered by the applicant;                                       —     order the Commission to compensate him for material
                                                                                and non-material damage, provisionally assessed, with all
—      order the defendant to pay all the costs.                                manner of reservations, at EUR 1 350 000;
                                                                          —     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                          Pleas in law and main arguments
The applicant in the present case, the subject-matter of which
is the same as in Case T-205/00 Renco v Council (1), seeks full
compensation for the damage suffered by it as a result of the             The applicant contests the disciplinary measure imposed on
irregularities established in the award of a public contract for          him following alleged irregularities committed in the course of
general installation and maintenance works to be carried out              his duties as Head of the Delegation of the European Com-
in the buildings of the Council following the issue of invitation         mission in Bratislava (Slovak Republic).
to tender No 99/S 146-107865/FR of 30 July 1999.
                                                                          In support of his claims, he puts forward the following pleas
It is alleged that the Council has incurred liability on account          in law:
of, in particular, its failure to comply with the requirements
imposed by Directive 93/37/EEC (2), which applies to the                  —     Breach of the rights of the defence and of the disciplinary
contract in issue. The applicant also complains that the Council                procedure.
disappointed the legitimate expectations of the tenderers
concerning the selection criteria actually applied in the                 —     Lack of a statement of reasons and erroneous statement
decision-making process.                                                        of reasons.
(1) OJ C 285 of 7.10.2000, p. 19.                                         —     Manifest error of assessment of the facts giving rise to a
(2) Council Directive 93/37/EEC of 14 June 1993 concerning the                  misassessment of law.
    coordination of procedures for the award of public works
    contracts.                                                            —     Breach of the principle of proportionality.
Action brought on 26 January 2001 by Georgios S. Zavvos                   Action brought on 26 January 2001 by Petros Efthymiou
     against Commission of the European Communities                           against Commission of the European Communities
                          (Case T-21/01)                                                          (Case T-22/01)
                          (2001/C 79/46)                                                          (2001/C 79/47)
                    (Language of the case: French)                                          (Language of the case: French)
An action against the Commission of the European Communi-                 An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                ties was brought before the Court of First Instance of the
European Communities on 26 January 2001 by Georgios                       European Communities on 26 January 2001 by Petros Efthy-
S. Zavvos, residing in Linkebeek (Belgium), represented by                miou, residing in Luxembourg, represented by Jean-Noël Louis
Georges Vandersanden and Laure Levi, Avocats, with an                     and Véronique Peere, avocats, with an address for service in
address for service in Luxembourg.                                        Luxembourg.


title: Case T-96/01: Action brought on 4 May 2001 by Rodolfos Maslias against the European Parliament

text:
C 200/58                EN                    Official Journal of the European Communities                                          14.7.2001
2001 by INNOVA — Centro Euromediterraneo per lo Svilup-                  its obligation to pay the grants due in connection with the Una
po Sostenibile, established in Calatafimi, Italy, represented by         Festa per Aristofane project by reason of non-performance —
Denis Waelbroeck and Jennifer Waldron, Lawyers.                          which is not admitted — of obligations relating to another
                                                                         project. Nor can the suspension of payment be seen as a penalty
                                                                         within the meaning of Council Regulation (EC, Euratom) No
                                                                         2988/95 (3).
The applicant claims that the Court of First Instance, should:
                                                                         Finally, neither of the contracts provides for set-off and set-off
—     In the first place,                                                is not authorised by any provision governing the programmes
                                                                         concerned.
      —     Order the Commission to pay the grant which it
            undertook to pay under the contract concluded on             In support of its claim for annulment, the applicant claims,
            28 January 2000 in relation to the Una Festa per             inter alia, that the decision is illegal, in that it is ultra vires,
            Aristofane project,                                          lacks a proper statement of reasons, infringes the applicant’s
                                                                         rights of defence and infringes the principle of proportionality.
      —     Order the Commission to pay interest on that sum;
                                                                         (1) OJ 1999 C 163, p. 3.
—     In the alternative,                                                (2) Based on Decision 508/2000/EC of the European Parliament and
                                                                             of the Council of 14 February 2000 establishing the Culture 2000
                                                                             Programme (OJ 2000 C 63, p. 1).
      —     Annul the Commission’s decision to suspend pay-              (3) Council Regulation (EC, Euratom) No 2988/95 of 18 December
            ments in respect of the second and final phases of               1995 on the protection of the European Communities’ financial
            the grant contract in relation to the Una Festa per              interests (OJ 1995 L 312, p. 1).
            Aristofane project, notified to INNOVA by letter
            from Mrs Efterpi Verigaki of 25 January 2001,
—     Order the Commission to pay the costs in their entirety.
                                                                         Action brought on 4 May 2001 by Rodolfos Maslias
Contentions and principal arguments adduced in suppport
                                                                                against the European Parliament
                                                                                (Case T-96/01)
In June 1999 the Commission published a call for tenders (1) for
experimental events under the ‘Culture 2000’ programme (2). In
December 1999 the Commission approved a project drawn                                             (2001/C 200/109)
up by the applicant which provided for the organisation of an
event entitled Una Festa per Aristofane the purpose of which
was to spread and increase young people’s awareness of their                                 (Language of the case: Greek)
common European heritage.
                                                                         An action against the European Parliament was brought before
                                                                         the Court of First Instance of the European Communities on
After receiving the first part of the grant, the applicant sent the      4 May 2001 by Rodolfos Maslias, official of the European
Commission a request for payment of the second instalment                Parliament, represented by Professor Kharis Tagaras, Lawyer,
and, later, for payment of the balance of the financial assistance       Sagia Chambers, Likavittou 5, Athens 106 72.
granted to the project. In reply the Commission informed the
applicant that the final payment had been blocked because of             The applicant claims that the Court should:
an order for recovery of a larger sum from the applicant. That
order relate to another contract between the parties, which              —     annul:
had been terminated by the Commission. The applicant
instituted proceedings before the Belgian courts to have the                   (1) the decision of the defendant of 20 October 2000
Commission’s decision to terminate the contract annulled.                            to stop unilaterally (or, in the alternative, not to allow
                                                                                at all) the exchange of officials of 11 September
                                                                                2000 with the Greek Ministry of Culture (on the
                                                                                basis of which the applicant, as an official of the
The applicant claims that the Commission is in breach of its                         defendant, was exchanged with an official of the
contractual and legislative obligations. The contracts are                           Ministry of Culture);
separate and non-performance of obligations under one con-
tract cannot justify the suspension of obligations arising from                (2) the decision of the defendant not to pay the
the other. No provision of either contract or of the regulations                     applicant his rightful remuneration for the period
governing those contracts allows the Commission to suspend                           from 16 September 2000 to 15 November 2000;
 ---pagebreak--- 14.7.2001            EN                    Official Journal of the European Communities                                    C 200/59
     (3) the implied rejection by the defendant of the admin-         Grounds for annulment and main arguments
          istrative complaint submitted by the applicant on
          5 December 2000 against the contested decisions             The applicant alleges that the defendant:
          by the defendant referred to at (1) and (2) above;          — has infringed Article 62 of the Staff Regulations, which
                                                                           forms the basis of the entitlement of Community officials
                                                                           to remuneration;
     (4) all other related enforceable measures of the
                                                                      — has infringed the provisions concerning exchanges of
          defendant;
                                                                           European Parliament and national officials;
                                                                      — has offended against the principles of good administration
—    order the defendant in any event to pay the costs.                    and of the protection of legitimate expectations.


title: Case C-370/12: Reference for a preliminary ruling from Supreme Court (Ireland) made on 3 August 2012 — Thomas Pringle v Government of Ireland, Ireland and the Attorney General

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/18

         Reference for a preliminary ruling from Supreme Court (Ireland) made on 3 August 2012 — Thomas Pringle v Government of Ireland, Ireland and the Attorney General
   (Case C-370/12)
   2012/C 303/31
   Language of the case: English

      Referring court

   Supreme Court

      Parties to the main proceedings

      Applicant: Thomas Pringle

      Defendant: Government of Ireland, Ireland and the Attorney General

      Questions referred

               1.

               Whether European Council Decision 2011/199/EU of 25th March 2011 (1) is valid:

                           —

                           Having regard to the use of the simplified revision procedure pursuant to Article 48(6) TEU and, in particular, whether the proposed amendment to Article 136 TFEU involved an increase in the competences conferred on the Union in the Treaties;

                           —

                           Having regard to the content of the proposed amendment, in particular whether it involves any violation of the Treaties or of the general principles of law of the Union.

               2.

               Having regard to

                           —

                           Articles 2 and 3 TEU and the provisions of Part Three, Title VIII TFEU, and in particular Articles 119, 120, 121, 122, 123, 125, 126, and 127 TFEU;

                           —

                           the exclusive competence of the Union in monetary policy as set out in Article 3(1)(c) TFEU and in concluding international agreements falling within the scope of Article 3(2) TFEU;

                           —

                           the competence of the Union in coordinating economic policy, in accordance with Article 2(3) TFEU and Part Three, Title VIII TFEU;

                           —

                           the powers and functions of Union Institutions pursuant to principles set out in Article l3 TEU;

                           —

                           the principle of sincere cooperation laid down in Article 4(3) TEU;

                           —

                           the general principles of Union law including in particular the general principle of effective judicial protection and the right to an effective remedy as provided under Article 47 of the Charter of Fundamental Rights of the European Union and the general principle of legal certainty;

                     is a Member State of the European Union whose currency is the euro entitled to enter into and ratify an international agreement such as the ESM Treaty?

               3.

               If the European Council Decision is held valid, is the entitlement of a Member State to enter into and ratify an international agreement such as the ESM Treaty subject to the entry into force of that Decision?

      (1)  European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro
   OJ L 91, p. 1


title: Case T-5/10: Action brought on 8 January 2010 — Commission v Earthscan

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/33

         Action brought on 8 January 2010 — Commission v Earthscan
   (Case T-5/10)
   2010/C 80/55
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: A.-M. Rouchaud-Joët, S. Petrova, Agents, assisted by P. Hermant and G. van de Walle de Ghelcke, lawyers)

      Defendant: Earthscan Ltd (Kent, United Kingdom)

      Form of order sought

               —

               order the defendant to repay the Commission the amount of EUR 44 903,22, corresponding to a principal amount of EUR 45 835,44 of which EUR 6 486,09 was already paid and interests until 30 September 2009 of EUR 5 556,87;

               —

               order the defendant to pay interests of EUR 3,84 per day from 1 October 2009 on until the entirety of the debt is paid;

               —

               order that the defendant pay the cost incurred by the Commission.

      Pleas in law and main arguments

   By the present action, based on an arbitration clause, the applicant requests that the defendant be ordered to repay part of the advance paid by the applicant, together with default interests, as a result of the non-performance of contract No 4.1030/Z/01-035/2001, concluded between the applicant and nine contractors including the defendant, for the development, the publication and the dissemination of a guide on renewable energy (project ‘Guide for Renewable Energy installations to promote biomass, photovoltaics and solar thermal in the EU’) in the framework of the ALTENER programme (1).
   The applicant raises a single plea in law.
   Given that the defendant did not carry out the performance of the contract for phases 6 and 7 (layout, typesetting, printing and dissemination), the applicant contends that the defendant breached its contractual obligations by failing to reimburse its share of the pre-financing that was overpaid in application of the contract. It claims that the defendant must therefore be condemned to repay the overpaid amount, accrued with the default interests as calculated in the contract.

      (1)  Decision No 646/2000/EC of the European Parliament and of the Council of 28 February 2000 adopting a multiannual programme for the promotion of renewable energy sources in the Community (Altener) (1998 to 2002), OJ L 79, p. 1


title: Case C-486/06: Judgment of the Court (Eighth Chamber) of 6 December 2007 (reference for a preliminary ruling) from the Hof van beroep te Antwerpen (Belgium)) — BVBA Van Landeghem v Belgische Staat (Common Customs Tariff — Combined Nomenclature — Tariff classification — Headings 8703 and 8704 — Pick-up type motor vehicle)

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/12

         Judgment of the Court (Eighth Chamber) of 6 December 2007 (reference for a preliminary ruling) from the Hof van beroep te Antwerpen (Belgium)) — BVBA Van Landeghem v Belgische Staat
   (Case C-486/06) (1)

   (Common Customs Tariff - Combined Nomenclature - Tariff classification - Headings 8703 and 8704 - Pick-up type motor vehicle)
   (2008/C 22/22)
   Language of the case: French
   Referring court
   Hof van beroep te Antwerpen
   Parties to the main proceedings

      Applicant: BVBA Van Landeghem

      Defendant: Belgische Staat
   Re:
   Reference for a preliminary ruling — Hof van Beroep te Antwerpen (Belgium) — Interpretation of Council Regulation No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and the common customs tariff (OJ 1987 L 256, p. 1) — Headings 8703 and 8704 — Classification of a ‘pick-up’ motor vehicle with an enclosed cabin for use as a passenger compartment and a load space not higher than 50 cm, a luxurious interior, ABS braking system, 4 to 8 litre petrol engine, four-wheel drive and luxurious sports rims
   Operative part of the judgment
   Pick-ups such as those at issue in the main proceedings which consist, on the one hand, of an enclosed cabin for use as a passenger compartment, there being, behind the driver's seat, folding or removable seats with three-point safety belts, and, on the other hand, of a load space which is separated from the cabin, is not higher than 50 centimetres, can be opened only at the rear and has no facilities for attaching a load, which have a luxurious full-option interior (including electrically adjustable leather seats, electrically operated mirrors and windows and a stereo with a CD player), and which are equipped with an anti-lock braking system (ABS), an automatic, 4 to 8-litre, very high-consumption petrol engine, four-wheel drive and luxurious (sports) rims, must be classified, according to their general appearance and the entirety of their characteristics, under heading 8703 of the Combined Nomenclature as set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff as amended by the annexes to Commission Regulation (EC) No 3115/94 of 20 December 1994, Commission Regulation (EC) No 3009/95 of 22 December 1995 and Commission Regulation (EC) No 1734/96 of 9 September 1996.

      (1)  OJ C 20, 27.1.2007.


title: Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-456/02 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles): Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) (Freedom of movement of persons — Citizenship of the European Union — Right of residence — Directive 90/364/EEC — Limitations and conditions — Person working in a hostel in return for benefits in kind — Entitlement to social assistance benefits)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/7

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 7 September 2004
   in Case C-456/02 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles): Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) (1)

   (Freedom of movement of persons - Citizenship of the European Union - Right of residence - Directive 90/364/EEC - Limitations and conditions - Person working in a hostel in return for benefits in kind - Entitlement to social assistance benefits)
   (2004/C 262/14)
   Language of the case: French
   In Case C-456/02: reference for a preliminary ruling under Article 234 EC from the Tribunal du travail de Bruxelles (Belgium), made by decision of 21 November 2002, received on 18 December 2002, in the proceedings between Michel Trojani and Centre public d'aide sociale de Bruxelles (CPAS) — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.-P. Puissochet and J.N. Cunha Rodrigues (Rapporteur), Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric, S. von Bahr and K. Lenaerts, Judges; L.A. Geelhoed, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 7 September 2004, in which it has ruled:

               1.

               A person in a situation such as that of the claimant in the main proceedings, first, does not come under Articles 43 EC and 49 EC and, second, can claim a right of residence as a worker within the meaning of Article 39 EC only if the paid activity he carries out is real and genuine. It is for the national court to carry out the examinations of fact necessary to determine whether that is so in the case pending before it.

               2.

               A citizen of the European Union who does not enjoy a right of residence in the host Member State under Articles 39 EC, 43 EC or 49 EC may, simply as a citizen of the Union, enjoy a right of residence there by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities must ensure that those limitations and conditions are applied in compliance with the general principles of Community law, in particular the principle of proportionality. However, once it is ascertained that a person in a situation such as that of the claimant in the main proceedings is in possession of a residence permit, he may rely on Article 12 EC in order to be granted a social assistance benefit such as the minimex.

      (1)  OJ C 44 of 22.2.2003.


title: Case C-279/06: Reference for a preliminary ruling from the Audiencia Provincial de Madrid (Spain) lodged on 27 June 2006 — CEPSA, Estaciones de Servicio SA v LV Tobar e Hijos SL

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/21

         Reference for a preliminary ruling from the Audiencia Provincial de Madrid (Spain) lodged on 27 June 2006 — CEPSA, Estaciones de Servicio SA v LV Tobar e Hijos SL
   (Case C-279/06)
   (2006/C 212/36)
   Language of the case: Spanish
   Referring court
   Audiencia Provincial de Madrid
   Parties to the main proceedings

      Applicant: CEPSA, Estaciones de Servicio SA

      Defendant: LV Tobar e Hijos SL
   Questions referred

               1

                           (a)

                           Is Article 81(1) EC to be construed as meaning that a exclusive supply contract under a brand name concluded in 1996 by a distributor of petroleum products and the proprietor of a service station requiring the latter to sell exclusively the supplier's motor-vehicle and other fuels for a fixed period, and to undertake not to sell such products supplied by other distributors, falls within the ambit of that provision in so far as that obligation involves a no-competition agreement, even though that contract might, given its commercial significance, be regarded as an agency contract?

                           (b)

                           If the contract does fall within the ambit of Article 81(1) EC, is it possible to claim the benefit of exemption from the prohibition if it satisfies the requirements of Regulation No 1984/83 (1), especially those relating to duration?

                           (c)

                           If that should be the case, does the fact that Articles 10 and 12 of that regulation permit the duration of the no-competition agreement to exceed five years as consideration for the granting of commercial or financial advantages by the supplier to the service station proprietor, require those commercial or financial advantages to be substantial or is it enough that they are not insignificant? Can those provisions be interpreted as meaning that such commercial or financial advantages have been conferred in exclusive supply contracts under a brand name in which the supplier of petroleum products bears the costs of installing and maintaining its brand image in the service station, or transfers fuel-tanks and -pumps which the service station proprietor may not use without the authorisation in writing of the sole supplier for products not supplied by the latter and which it must hand back when it ceases to use them as authorised, and the value of which is covered by the guarantee on first demand that the service station proprietor has provided in favour of the supplier?

                           (d)

                           If that exemption should not be applicable, does the automatic nullity provided for by Article 81(2) EC affect the contract in its entirety?

               2

                           (a)

                           Is Article 81(1) EC be interpreted as meaning that a an exclusive supply contract under a brand name, in so far as it provides that the service station proprietor must sell motor-vehicle and other fuels supplied by the exclusive supplier at the prices for sale to the public fixed by the supplier, is in theory caught by the prohibition of restriction of competition because it fixes sale prices, taking account of its economic significance and in particular of the risks assumed by the service-station proprietor and its contribution to the costs connected with the supply of goods under the contract or of the sales promotion of those goods, given the following relevant points:

                                       (1)

                                       The service-station proprietor undertakes to sell exclusively the supplier's lubricants, vehicle products and motor-vehicle and other fuels, in accordance with the retail prices, conditions and sales and business methods stipulated by the supplier for a period of 10 years, which may be extended for successive periods each of five years by express agreement in writing on notice of at least six months.

                                       (2)

                                       The service-station proprietor assumes the risk associated with the motor-vehicle and other fuels as soon as they are received from the supplier in the storage tanks, including the risk of discrepancies in volume. From the moment of receipt the proprietor assumes the obligation to keep the products in the conditions necessary to ensure that they undergo no loss or deterioration and is liable, where applicable, to the supplier and to third parties for any loss, contamination or adulteration which may affect the products and for any damage arising as a result thereof.

                                       (3)

                                       The service-station proprietor is required to pay the supplier the cost of the motor-vehicle and other fuels nine days after the date of their delivery to the service station, on presentation on the date of the first supply of a bank guarantee for the total price of the supply, equivalent to 15 days. If it should fail to pay, apart from the possibility that the supplier might enforce the guarantee presented by the service-station proprietor, the latter would be required to pay for supplies before they were delivered to the service station. Payment is made by the service-station proprietor to the supplier by deducting from the price of sale to the public fixed by the distributor, including VAT, the amount of ‘commission’ due to the service-station proprietor, plus the corresponding VAT. The fuel supplied is sold on average in a period of much less than the nine days provided for payment by the applicant (respondent in these proceedings) to the defendant (the appellant in these proceedings). The distributor debits or credits the service station monthly, depending on the upward or downward variation in the prices fixed for the fuel delivered. The cost of transport is borne by the supplier.

                                       (4)

                                       The proprietor of the service station guarantees and is responsible for those customers who have signed up for the use of the credit card created and managed by the group of companies to which the supplier belongs, charges the sales made by means of the card one month after they are made, finances a small part of the cost of customers' use of the fuel distributor's loyalty card and assumes the risk of non-payment by those customers who have been allowed direct credit.

                                       (5)

                                       The supplier of the petroleum products bears the costs of installing and maintaining its brand image in the service station, and also transfers the fuel-tanks and pumps which the proprietor of the service station may not use, without the supplier's authorisation in writing, to sell products not supplied by that supplier, and which are valued precisely at the amount of the bank guarantee that the service station proprietor has presented in favour of the supplier?

                           (b)

                           If so, on a proper construction of Commission Regulation (EEC) No 1984/83 of 22 June 1983, and in particular of Articles 10 to 13 thereof, do those provisions catch within their scope a contract of that kind with the result that the prohibition laid down in Article 81(1) of the EC Treaty is not applicable if the contract satisfies the requirements for exemption contained in those articles of the regulation?

                           (c)

                           In that case, is Article 11 of that regulation to be construed as meaning that, if the contract imposes more than one restriction on competition, and moreover if it stipulates no competition by providing for exclusive supply by one supplying undertaking, sale prices are fixed by the supplier? Does the authorisation given by the distribution company to the service station to lower its sale price without affecting the distributor's receipts, which took place in November 2001, make it possible to regard the contract as valid?

      (1)  Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (OJ L 173, p. 5).


title: Case C-482/16: Request for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 7 September 2016 — Georg Stollwitzer v ÖBB Personenverkehr AG

text:
               21.11.2016

               EN

               Official Journal of the European Union

               C 428/11

         Request for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria) lodged on 7 September 2016 — Georg Stollwitzer v ÖBB Personenverkehr AG
   (Case C-482/16)
   (2016/C 428/11)
   Language of the case: German

      Referring court

   Oberlandesgericht Innsbruck

      Parties to the main proceedings

      Applicant: Georg Stollwitzer

      Defendant: ÖBB Personenverkehr AG

      Questions referred

               1.

               Is EU law as it currently stands, in particular the general principle in EU law of equal treatment, the general principle of the prohibition of discrimination on grounds of age within the meaning of Article 6(3) TEU and Article 21 of the Charter of Fundamental Rights, the prohibition of discrimination in connection with freedom of movement for workers under Article 45 TFEU and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (1) to be interpreted as precluding a national rule, such as that at issue in the main proceedings, which for the removal of discrimination on grounds of age identified by the Court of Justice of the European Union in the judgment in Gotthard Starjakob
                   (2) (namely the failure to take into account previous periods of service completed before the age of 18 for ÖBB (Austrian Federal Railways) employees) takes into account a small number of ÖBB employees discriminated against under the old rules with a period of service completed before the age of 18 (but only those employees who actually worked for the ÖBB or for similar public railway infrastructure undertakings or railway undertakings in the EU, in the EEA and in those countries connected with the EU by association or free movement arrangements), but does not take into account, for the vast majority of ÖBB employees originally discriminated against, all other periods of service occurring before the age of 18, in particular including those not taken into account which enabled the ÖBB employees concerned better to perform their duties, such as, for example, previous periods of service with private and other public transport companies or infrastructure companies by which the infrastructure used by the employer (rolling stock, rail construction, line construction, electrical and electronic equipment, signal boxes, station construction and the like) is produced, distributed or maintained, or similar undertakings, and therefore in reality ultimately maintains a difference in treatment based on age for the vast majority of the ÖBB employees discriminated against under the old rules?

               2.

               Does the conduct of a Member State, which is the sole shareholder of a rail transport undertaking and the de facto employer of persons employed by that undertaking, where the rights of those employees founded on EU law to additional pay on account of discrimination, inter alia, on the basis of age, which has been recognised by several judgments of the Court of Justice of the European Union (David Hütter, (3)
                  Siegfried Pohl, (4)
                  Gotthard Starjakob), as well as by a number of national court rulings, including the (Austrian) Supreme Court (Case 8 ObA 11/15y) and which the Member State sought to remove for purely fiscal reasons through retroactive changes to the law in the years 2011 and 2015, meet the conditions recognised in the case-law of the Court of Justice governing the liability of that Member State under EU law, in particular the condition that there be a sufficiently serious breach of EU law, in particular of Article 2(1), read in conjunction with Article 1, of Directive 2000/78/EC as interpreted in a number of judgments of the Court of Justice (David Hütter, Siegfried Pohl, Gotthard Starjakob)?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

      (2)  Case C-417/13, EU:C:2015:38.

      (3)  Case C-88/08, EU:C:2009:381.

      (4)  Case C-429/12, EU:C:2014:12.


title: Case T-466/08: Judgment of the General Court of 14 April 2011 — Lancôme v OHIM — Focus Magazin Verlag (ACNO FOCUS) (Community trade mark — Opposition proceedings — Application for the Community word mark ACNO FOCUS — Earlier national word mark FOCUS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — 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))

text:
               28.5.2011

               EN

               Official Journal of the European Union

               C 160/16

         Judgment of the General Court of 14 April 2011 — Lancôme v OHIM — Focus Magazin Verlag (ACNO FOCUS)
   (Case T-466/08) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark ACNO FOCUS - Earlier national word mark FOCUS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - 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))
   2011/C 160/20
   Language of the case: English

      Parties

      Applicant: Lancôme parfums et beauté & Cie (Paris, France) (represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: G. Schneider, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Focus Magazin Verlag GmbH (Munich, Germany) (represented by: R. Schweizer and J. Berlinger, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 29 July 2008 (Case R 1796/2007-1) relating to opposition proceedings between Focus Magazin Verlag GmbH and Lancôme parfums et beauté & Cie.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Lancôme parfums et beauté & Cie to pay the costs.

      (1)  OJ C 6, 10.1.2009.


title: Case C-409/14: Judgment of the Court (Fifth Chamber) of 8 September 2016 (request for a preliminary ruling from the Debreceni Közigazgatási és Munkaügyi Bíróság — Hungary) — Schenker Nemzetközi Szállítmányozási és Logisztikai Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága (Reference for a preliminary ruling — Common Customs Tariff — Combined Nomenclature — Classification of goods — Interpretation of a subheading of the Combined Nomenclature — Directive 2008/118/EC — Importation of excise goods — Customs suspensive procedure or arrangement — Effects of a customs declaration referring to an incorrect subheading of the Combined Nomenclature — Irregularities during the movement of excise goods)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/3

         Judgment of the Court (Fifth Chamber) of 8 September 2016 (request for a preliminary ruling from the Debreceni Közigazgatási és Munkaügyi Bíróság — Hungary) — Schenker Nemzetközi Szállítmányozási és Logisztikai Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága
   (Case C-409/14) (1)

   ((Reference for a preliminary ruling - Common Customs Tariff - Combined Nomenclature - Classification of goods - Interpretation of a subheading of the Combined Nomenclature - Directive 2008/118/EC - Importation of excise goods - Customs suspensive procedure or arrangement - Effects of a customs declaration referring to an incorrect subheading of the Combined Nomenclature - Irregularities during the movement of excise goods))
   (2016/C 402/03)
   Language of the case: Hungarian

      Referring court

   Debreceni Közigazgatási és Munkaügyi Bíróság

      Parties to the main proceedings

      Applicant: Schenker Nemzetközi Szállítmányozási és Logisztikai Kft.

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

      Operative part of the judgment

               1.

               Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EU) No 861/2010 of 5 October 2010, must be interpreted as meaning that goods such as those at issue in the main proceedings, consisting in smoking tobacco, irrespective of the presence of tobacco waste, since the latter does not prevent the intended use of the product concerned, are not to be included under heading 2401 of the Combined Nomenclature in Annex I to Regulation No 2658/87, as amended by Regulation No 861/2010. However, such goods may be classified under heading 2403 of the Combined Nomenclature, in particular subheading 2403 10 90 thereof, if they are packed in bulk and compacted in plastic-lined bags having a net weight 30 kg per box.

               2.

               The concept of ‘customs suspensive procedure or arrangement’, laid down in Article 4(6) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, must be interpreted as meaning that the placement of specific goods under a customs suspensive procedure or arrangement cannot be challenged if the chapter of the Common Customs Tariff which covers those goods is correctly mentioned in their accompanying documents, but the specific subheading is incorrectly indicated. In such a case, Article 2(b) and Article 4(8) of Directive 2008/118 must be interpreted as meaning that there has been no importation of those goods, and that they are not excise goods.

               3.

               In a situation such as that at issue in the main proceedings, the concept of ‘irregularity’, within the meaning of Article 38 of Directive 2008/118, must be interpreted as meaning that it does not cover goods placed under a customs suspensive procedure or arrangement which are accompanied by a document mentioning an incorrect tariff classification.

      (1)  OJ C 439, 8.12.2014.


title: Case C-206/06: Reference for a preliminary ruling from the Rechtbank Groningen (Netherlands) lodged on  2 May 2006  — Essent Netwerk Noord BV v Aluminium Delfzijl BV, Essent Netwerk Noord BV v 1. Saranne BV, and 2. BV Nederlands Elektriciteit Administratiekantoor, and Aluminium Delfzijl BV v State of the Netherlands (Ministry of Economic Affairs)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/17

         Reference for a preliminary ruling from the Rechtbank Groningen (Netherlands) lodged on 2 May 2006 — Essent Netwerk Noord BV v Aluminium Delfzijl BV, Essent Netwerk Noord BV v 1. Saranne BV, and 2. BV Nederlands Elektriciteit Administratiekantoor, and Aluminium Delfzijl BV v State of the Netherlands (Ministry of Economic Affairs)
   (Case C-206/06)
   (2006/C 178/28)
   Language of the case: Dutch
   Referring court
   Rechtbank Groningen
   Parties to the main proceedings

      Claimant: Essent Netwerk Noord B.V.

      Defendant: Aluminium Delfzijl B.V.

      Other parties: B.V. Nederlands Elektriciteit Administratiekantoor, Saranne BV, BV Nederlands Elektriciteit Administratiekantoor, State of the Netherlands (Ministry for Economic Affairs)
   Questions referred

               1.

               Must Articles 25 EC and 90 EC be construed as precluding a statutory rule under which domestic purchasers of electricity are required during a transitional period (31 August 2000 to 31 December 2000 inclusive) to pay to their net operator a price surcharge on the amounts of electricity delivered for their use, in the case where that surcharge is to be paid by the net operator to an undertaking designated by the legislature for the purpose of defraying non-market-compatible costs which have arisen as a result of obligations incurred, or investments made, by that undertaking prior to liberalisation of the electricity market, and that undertaking:

                           —

                           is the joint subsidiary of the four domestic generating undertakings;

                           —

                           was solely responsible, in the period in question (2000), for the non-market-compatible costs which arose during that year;

                           —

                           requires, by general agreement, an amount of NLG 400 million (EUR 181 512 086.40) in order to cover those costs incurred in that year; and

                           —

                           so far as the income generated by the price surcharge exceeds the aforementioned amount, is required to forward such surplus to the Minister?

               2.

               Does the rule mentioned in the first question satisfy the requirements of Article 87(1) EC?


title: Case C-357/07: Judgment of the Court (Second Chamber) of 23 April 2009 (reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — TNT Post UK Ltd, The Queen v The Commissioners for Her Majesty’s Revenue and Customs (Sixth VAT Directive — Exemptions — Article 13A(1)(a) — Services supplied by the public postal services)

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/7

         Judgment of the Court (Second Chamber) of 23 April 2009 (reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — TNT Post UK Ltd, The Queen v The Commissioners for Her Majesty’s Revenue and Customs
   (Case C-357/07) (1)

   (Sixth VAT Directive - Exemptions - Article 13A(1)(a) - Services supplied by the public postal services)
   2009/C 141/10
   Language of the case: English

      Referring court

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

      Parties to the main proceedings

      Applicant: TNT Post UK Ltd, The Queen

      Defendant: The Commissioners for Her Majesty’s Revenue and Customs

      Interested party: Royal Mail Group Ltd

      Re:

   Reference for a preliminary ruling — High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — Interpretation of Article 13A(1)(a) of Directive 77/388/EEC: Sixth Council Directive 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) — Exemptions in favour of certain activities in the public interest — Services provided by public postal services — Meaning of ‘public postal services’ — Whether a commercial company providing postal services is included

      Operative part of the judgment

               1.

               The concept of ‘public postal services’ in Article 13A(1)(a) of 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, must be interpreted to cover operators, whether they are public or private, who undertake to provide, in a Member State, all or part of the universal postal service, as defined in Article 3 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002.

               2.

               The exemption provided for in Article 13A(1)(a) of Sixth Directive 77/388 applies to the supply by the public postal services acting as such — that is, in their capacity as an operator who undertakes to provide all or part of the universal postal service in a Member State — of services other than passenger transport and telecommunications services, and the supply of goods incidental thereto. It does not apply to supplies of services or of goods incidental thereto for which the terms have been individually negotiated.

      (1)  OJ C 247, 20.10.2007.


title: Case T-286/10: Judgment of the General Court of 17 October 2012 — Fondation IDIAP v Commission (Arbitration clause — Sixth Framework Programme for research, technological development and demonstration activities — Contracts relating to the Amida, Bacs and Dirac projects — Eligible costs — Additional cost model — Salary of researchers holding permanent employment contracts — Absence of contractor's own resources)

text:
               1.12.2012

               EN

               Official Journal of the European Union

               C 373/5

         Judgment of the General Court of 17 October 2012 — Fondation IDIAP v Commission
   (Case T-286/10) (1)

   (Arbitration clause - Sixth Framework Programme for research, technological development and demonstration activities - Contracts relating to the Amida, Bacs and Dirac projects - Eligible costs - Additional cost model - Salary of researchers holding permanent employment contracts - Absence of contractor's own resources)
   2012/C 373/07
   Language of the case: French

      Parties

      Applicant: Fondation de l’Institut de recherche IDIAP (Martigny, Switzerland) (represented by: G. Chapus-Rapin and G. Couchepin, lawyers)

      Defendant: European Commission (represented by: F. Dintilhac and A. Sauka, Agents)

      Re:

   Application on the basis of Article 272 TFEU seeking a declaration from the Court that certain expenditure incurred by the applicant in the performance of Contract No 33812, relating to the Amida project, Contract No 27140, relating to the Bacs project, and Contract No 27787, relating to the Dirac project, concluded by the European Commission within the framework of the sixth framework programme for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006), established by Decision 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 (OJ 2002 L 232, p. 1), is eligible for reimbursement and that, as a consequence, the applicant is not required to repay EUR 98 042,45 in respect of the contract relating to the Dirac project or EUR 251 505,76 in respect of the contract relating to the Amida project, and, in the alternative, an application on the basis of Article 263 TFEU seeking, first, annulment of the Commission’s decision by which it confirmed the conclusions of an audit to the effect that the costs at issue were ineligible and, second, an order that the Commission arrange for an audit to be undertaken of the projects, to be carried out by a company other than that which carried out the original audit.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Fondation de l’Institut de recherche IDIAP to bear its own costs and to pay the costs incurred by the European Commission, including the cost of the application for interim measures.

      (1)  OJ C 221, 14.8.2010.