title: Case C-427/03: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Massa e Carrara — Sezione III — by order of that Court of 21 July 2003 in the case of OMYA S.p.a. against Comune di Carrara

text:
C 21/10               EN                        Official Journal of the European Union                                        24.1.2004
(B) Are the legislative provisions by virtue of which that tax          taria Provinciale di Massa e Carrara — Sezione III — (Provincial
     is levied compatible with Community law? In particular,            Tax Court of Massa Carrara, Third Chamber) of 21 July 2003,
     is the provision laid down in the Law of the Italian State         received at the Court Registry on 7 October 2003, for a
     No 749 of 15 July 1911 (as subsequently amended and                preliminary ruling in the case of OMYA S.p.a. against Comune
     supplemented) by virtue of which the Comune di Carrara             di Carrara on the following questions:
     imposes and levies a tax on marble (and derivatives)
     excavated in its territory and transported out of it (the ‘tax
     on marble’) compatible with, or contrary to, Article 23            (A) Does a tax, levied by a municipal authority in one
     (ex Article 9) of the Treaty establishing the European                   Member State on goods exported to another Member
     Communities, which provides that ‘[t]he Community                        State on account of their leaving a municipality in the
     shall be based upon a customs union which shall cover                    first Member State, constitute a charge having equivalent
     all trade in goods and which shall involve the prohibition               effect to customs duties on exports, even though that
     between Member States of customs duties on imports                       fiscal charge also applies to goods leaving that munici-
     and exports and of all charges having equivalent effect’,                pality for another part of that Member State?
     and Article 25 (ex Article 12), which provides that
     ‘[c]ustoms duties on imports and exports and charges
     having equivalent effect shall be prohibited between               (B) Are the legislative provisions by virtue of which that tax
     Member States. This prohibition shall also apply to                      is levied compatible with Community law? In particular,
     customs duties of a fiscal nature’?                                      is the provision laid down in the Law of the Italian State
                                                                              No 749 of 15 July 1911 (as subsequently amended and
(C) Is this tax on marble compatible with Articles 81 EC to                   supplemented) by virtue of which the Comune di Carrara
     89 EC (ex Articles 85 to 90 and 92 to 94 of the EC                       imposes and levies a tax on marble (and derivatives)
     Treaty), which lay down a series of rules intended to                    excavated in its territory and transported out of it (the ‘tax
     create a system which will ensure that competition on                    on marble’) compatible with, or contrary to, Article 23
     the common market is not distorted and which will                        (ex Article 9) of the Treaty establishing the European
     remove subsisting impediments in order to attain that                    Communities, which provides that ‘[t]he Community
     objective?                                                               shall be based upon a customs union which shall cover
                                                                              all trade in goods and which shall involve the prohibition
(D) If the answer to the previous question is ‘No’ — having                   between Member States of customs duties on imports
     regard to the fact that, in respect of the municipality in               and exports and of all charges having equivalent effect’,
     which the tax on marble (and derivatives) is levied the                  and Article 25 (ex Article 12), which provides that
     Treaty provides no special measures in favour of the                     ‘[c]ustoms duties on imports and exports and charges
     Italian Republic — is it compatible with Community law                   having equivalent effect shall be prohibited between
     for a legislative provision to impose a pecuniary charge                 Member States. This prohibition shall also apply to
     (the ‘tax on marble’) on goods transported out of one                    customs duties of a fiscal nature’?
     municipality and intended for other regions of the same
     State, or does not that particular charge instead involve
     less favourable treatment of goods intended for those              (C) Is this tax on marble compatible with Articles 81 EC to
     regions in comparison with goods exported in other                       89 EC (ex Articles 85 to 90 and 92 to 94 of the EC
     Member States, and does not this pecuniary charge                        Treaty), which lay down a series of rules intended to
     constitute an impediment to free movement of goods                       create a system which will ensure that competition on
     throughout the European market?                                          the common market is not distorted and which will
                                                                              remove subsisting impediments in order to attain that
                                                                              objective?
                                                                        (D) If the answer to the previous question is ‘No’ — having
                                                                              regard to the fact that, in respect of the municipality in
                                                                              which the tax on marble (and derivatives) is levied the
                                                                              Treaty provides no special measures in favour of the
Reference for a preliminary ruling by the Commissione                         Italian Republic — is it compatible with Community law
Tributaria Provinciale di Massa e Carrara — Sezione III —                     for a legislative provision to impose a pecuniary charge
by order of that Court of 21 July 2003 in the case of                         (the ‘tax on marble’) on goods transported out of one
           OMYA S.p.a. against Comune di Carrara                              municipality and intended for other regions of the same
                                                                              State, or does not that particular charge instead involve
                        (Case C-427/03)                                       less favourable treatment of goods intended for those
                                                                              regions in comparison with goods exported in other
                                                                              Member States, and does not this pecuniary charge
                         (2004/C 21/17)                                       constitute an impediment to free movement of goods
                                                                              throughout the European market?
Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tribu-


title: Action brought on 6 July 1998 by Gisela Stodtmeister against the Council of the European Union (Case T-101/98)

text:
5.9.98               EN                  Official Journal of the European Communities                                   C 278/39
Ð order the Council to pay the applicant all arrears of                 the applicant suffered from total permanent invalidity
    salary owned to her and accruing from 1 August 1997                 or incapacity, the appointing authority could not make
    as well as all incidental benefits pertaining thereto,              a determination under Articles 53 and 78 of the Staff
    together with interest at a rate of 10 % per annum on               Regulations.
    such arrears according as they fell due or would have
    been paid had it not been for Decision No 677/97,
                                                                    Ð The facts in the present case indicate that the
    referred to above,
                                                                        Invalidity Committee convened by the Council
                                                                        was established not for the purpose of investigating
                                                                        whether the applicant was suffering from a total and
Ð order the Council to pay the applicant the sum of BEF                 permanent incapacity to carry out her duties, but as a
    3 000 000 (three million Belgian francs) for non-                   means of retiring her from the service of the Council.
    material damage,                                                    From this point of view, the whole invalidity
                                                                        procedure should be considered as vitiated by a misuse
                                                                        of powers.
Ð annul the findings of the Secretary-General of the
    Council made on 12 February 1998, rejecting the
    applicant's complaint of 15 October 1997 and
    confirming that Decision No 677/97 remains valid,
    and
                                                                    Action brought on 6 July 1998 by Gisela Stodtmeister
Ð award Marie Costigan the costs of the proceedings.                         against the Council of the European Union
                                                                                (Case T-101/98)
                                                                                (98/C 278/85)
Pleas in law and main arguments adduced in support:
                                                                                (Language of the case: French)
The applicant in the present case, an official of the
Council affected by a decision declaring her invalidity             An action against the Council of the European Union was
(Decision No 677/97), challenges the definitive decision of         brought before the Court of First Instance of the European
invalidity, as well as the preliminary decision establishing        Communities on 6 July 1998 by Gisela Stodtmeister,
an Invalidity Committee in regard to her case and its               residing at Tervuren (Belgium), represented by Georges
conclusions, on which basis the first decision was adopted.         Vandersanden and Laure Levi, of the Brussels Bar, with an
                                                                    address for service in Luxembourg at the offices of
                                                                    Fiduciaire Myson sarl, 30 rue de Cessange.
In support of her conclusions, the applicant submits that:
                                                                    The applicant claims that the Court should:
Ð The Invalidity Committee wrongly finds that she
    suffers from an invalidity which is considered as total,        Ð annul the decisions concerning promotion to grade A 3
    preventing her from performing the duties                           adopted for 1997 by the appointing authority on
    corresponding to a post in her career bracket. This                 17 November 1997,
    statement does not provide any reasons that would
    enable the reader to assess the considerations upon
                                                                    Ð annul the decision not to promote the applicant to
    which it is based. Furthermore, since the conclusions
                                                                        grade A 3 adopted in the context of the 1997
    make no reference whatsoever to any medical findings,
                                                                        promotions procedure, with the legal consequence
    no link could be established between the medical
                                                                        flowing therefrom, namely reinstatement of the
    findings (if any) of the Invalidity Committee and
                                                                        applicant's career from 1 January until the date of her
    its conclusions. Decision No 677/97 is accordingly
                                                                        retirement or until the date of her promotion to grade
    vitiated by a procedural irregularity.
                                                                        A 3,
Ð The defendant did not have the power to adopt                     Ð order the defendant to pay the costs.
    Decision No 677/97 on three grounds. First, an
    appointing authority can refer the case of an official to       Pleas in law and main arguments adduced in support:
    the Invalidity Committee only where that individual's
    sick-leave totals more than 12 months in a period of
    three years as per the fourth subparagraph of                   The applicant states that the procedure for drawing up
    Article 59(1) of the Staff Regulations, which has not           staff reports was not correctly followed as regards her
    been established in the present case. Second, the               staff report for the period 1993 to 1994. Consequently,
    Invalidity Committee never examined the applicant.              when the Advisory Committee on Promotion for
    The contested decision was thus adopted without                 Category A officials met, it did not have available to it
    any medical basis. Third, as the conclusions of the             any staff report relating to the applicant for that period. It
    Invalidity Committee themselves do not establish that           therefore omitted to take the applicant's merits and
 ---pagebreak--- C 278/40              EN                 Official Journal of the European Communities                                     5.9.98
abilities into consideration for the 1997 promotion period,         Ð request the defendant to produce the minutes of the
with the result that it was unable, to the detriment                    proceedings of the selection board and the reasoned
of the applicant's interests, to carry out any valid                    report of that Selection Board,
examination of the comparative merits of each of the
candidates for promotion. According to the applicant, it            Ð order the defendant to pay the costs.
follows that the contested decisions were adopted in
breach of Articles 43 and 45 of the Staff Regulations of            Pleas in law and main arguments adduced in support:
officials and of the principle of non-discrimination.
                                                                    In support of her claim, the applicant pleads, first, breach
                                                                    of the principle of non-discrimination; she maintains that
                                                                    she was obliged to sit the compulsory written tests under
                                                                    conditions and circumstances which were different from
Action brought on 6 July 1998 by Christina Papadeas                 those applying to the other candidates, solely on account
            against the Committee of the Regions                    of the fact that she chose Greek, her mother tongue, as the
                                                                    language of the competition.
                       (Case T-102/98)
                        (98/C 278/86)                               She also considers that the Selection Board disregarded the
                (Language of the case: French)                      terms of the notice of competition, in that, first, it failed
                                                                    in its letter to comply with that notice as regards the
An action against the Committee of the Regions was                  procedure for holding the first test and, second, it decided
brought before the Court of First Instance of the European          not to admit her to the oral test although the notice did
Communities on 6 July 1998 by Christina Papadeas,                   not provide for that possibility.
residing in Brussels, represented by Georges Vandersanden
and Laure Levi, of the Brussels Bar, with an address for            The applicant further maintains that the administration
service in Luxembourg at the offices of Fiduciaire Myson            committed a breach of the principles of proper
sarl, 30 rue de Cessange.                                           management and sound administration and failed to fultil
                                                                    its duty to have regard for the welfare and interests of
The applicant claims that the Court should:                         officials, inasmuch as it omitted to ensure that the work
Ð declare the present application admissible and well               apparatus which was made available to the candidates
    founded,                                                        was functioning properly at the time of the tests
                                                                    irrespective of the language chosen by each candidate.
Ð annul the decision of the Selection Board in internal
    competition No C/01/97 not to admit the applicant to            Lastly, she considers that the fact that participation in the
    the oral test, which decision was notified to the               recruitment procedure initiated by the notice of internal
    applicant by letter from the chairman of the Selection          competition at issue was open not only to staff members
    Board of 8 December 1997, and, in so far as may be              of the Committee of the Regions but also to staff members
    necessary, annul the decision contained in a letter sent        of the Economic and Social Committee constitutes an
    by the appointing authority to the applicant's legal            infringement of Article 29(1) of the Staff Regulations of
    advisers on 8 April 1998,                                       officials.


title: Case T-412/09: Order of the General Court (First Chamber) of 1 December 2010 — CEA v Commission

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/57

         Order of the General Court (First Chamber) of 1 December 2010 — CEA v Commission
   (Case T-412/09) (1)

   ()
   2011/C 30/103
   Language of the case: French
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 312, 19.12.2009.


title: Case T-230/08: Action brought on 17 June 2008 — Asenbaum Fine Arts v OHIM (WIENER WERKSTÄTTE)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/48

         Action brought on 17 June 2008 — Asenbaum Fine Arts v OHIM (WIENER WERKSTÄTTE)
   (Case T-230/08)
   (2008/C 223/84)
   Language of the case: German
   Parties

      Applicant: Asenbaum Fine Arts Ltd (London, United Kingdom) (represented by: P. Vögel, lawyer)

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

               —

               Alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 10 April 2008 (R 1573/2006-4) so as to allow the applicant's appeal of 29 November 2006 in its entirety, or in the alternative, to allow the appeal for Classes 6, 11 (excluding lamps (electric), fitted lamps, ceiling lamps and floor lamps), 14 (excluding chocolates), 16, 20, 21 (excluding chocolates) and 34;
               In the alternative annul the contested decision and refer the matter back to the Office for Harmonisation in the Internal Market to complete the proceedings;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings, including the costs of the appeal proceedings.

         Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘WIENER WERKSTÄTTE’ for goods in Classes 6, 11, 14, 16, 20, 21 and 34 (Application No 4 133 501).

      Decision of the Examiner: Application rejected.

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

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) in that the trade mark applied for is neither descriptive nor devoid of distinctive character.

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


title: Case C-253/05: Action brought on 15 June 2005 by Commission of the European Communities against the Kingdom of the Netherlands

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/4

         Action brought on 15 June 2005 by Commission of the European Communities against the Kingdom of the Netherlands
   (Case C-253/05)
   (2005/C 229/09)
   Language of the case: Dutch
   An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 15 June 2005 by the Commission of the European Communities, represented by Minas Konstantinidis and Pieter Van Nuffel, acting as Agents.
   The applicant claims that the Court should:

               —

               Declare that, by creating obstacles by means of the Convenant Verpakkingen (packaging rules) III, to the marketing in the Netherlands of drinks packaging originating in other Member States and satisfying the essential requirements laid down in European Parliament and Council Directive 94/62/EC (1) of 20 December 1994 on packaging and packaging waste, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 18 of that directive;

               —

               Order the Netherlands to pay the costs.

         Pleas and main arguments:
   The Netherlands legislation contains a clear restriction on intra-Community trade in beer, cold drinks and water in single-purpose plastic or glass packaging already marketed in another Member States. The Commission is of the view that this trade restriction is in breach of Article 18 of Directive 94/62 under which Member States may not impede the placing on the market of their territory of packaging which satisfies the provisions of this Directive.
   Packaging marketed in another Member State is deemed to satisfy the essential requirements of the directive; dealing in them on the internal market cannot therefore be impeded.

      (1)  OJ 1994 L 365, p. 10.


title: Case C-385/05: Reference for a preliminary ruling from the Conseil d'État (France) by decision of that court of  19 October 2005  in Confédération Générale du Travail, Confédération Française Démocratique du Travail (CFDT), Confédération Française de l'Encadrement C.G.C. (C.F.E.-C.G.C.), Confédération Française des Travailleurs Chrétiens (C.F.T.C.) and Confédération Générale du Travail — Force Ouvrière v Premier ministre, Ministre de l'Emploi, de la Cohésion sociale et du Logement

text:
               24.12.2005

               EN

               Official Journal of the European Union

               C 330/10

         Reference for a preliminary ruling from the Conseil d'État (France) by decision of that court of 19 October 2005 in Confédération Générale du Travail, Confédération Française Démocratique du Travail (CFDT), Confédération Française de l'Encadrement C.G.C. (C.F.E.-C.G.C.), Confédération Française des Travailleurs Chrétiens (C.F.T.C.) and Confédération Générale du Travail — Force Ouvrière v Premier ministre, Ministre de l'Emploi, de la Cohésion sociale et du Logement
   (Case C-385/05)
   (2005/C 330/20)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by decision of the Conseil d'Etat (France) of 19 October 2005, received at the Court Registry on 24 October 2005, for a preliminary ruling in the proceedings between Confédération Générale du Travail, Confédération Française Démocratique du Travail (CFDT), Confédération Française de l'Encadrement C.G.C. (C.F.E.-C.G.C.), Confédération Française des Travailleurs Chrétiens (C.F.T.C.), Confédération Générale du Travail — Force Ouvrière and Premier ministre, Ministre de l'Emploi, de la Cohésion sociale et du Logement on the following questions:

               1.

               In view of the purpose of Directive 2002/14/EC of 11 March 2002, (1) which, as set out in Article 1(1) thereof, is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community, must the transfer to the Member States of responsibility for determining the method for calculating the thresholds of employees employed, which is set out in that directive, be regarded as allowing those States to defer taking account of certain categories of employees for the application of those thresholds?

               2.

               To what extent may Directive 98/59/EC of 20 July 1998 (2) be interpreted as authorising an arrangement with the effect that some establishments normally employing more than 20 employees will be relieved, albeit temporarily, of the obligation to create a structure for the representation of employees because of rules for the calculation of staff numbers that exclude taking account of some categories of employees for the application of the provisions organising that representation?

      (1)  Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community – Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29)

      (2)  Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16)


title: Case T-478/09: Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/66

         Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)
   (Case T-478/09)
   2010/C 24/117
   Language in which the application was lodged: Spanish

      Parties

      Applicant: ATB Norte, SL (Burgos, Spain) (represented by: P. López Ronda, G. Macías Bonilla, H.L. Curtis-Oliver and G. Marín Raigal, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Bricocenter Italia Srl (Rozzano Milanofiori (Milan), Italy)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 — R 1009/2008-4.

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Bricocenter S.r.l.

      Community trade mark concerned: Figurative mark containing the word element ‘BRICOCENTER’ (Application No 4 934 501) in respect of services in Class 35.

      Proprietor of the mark or sign cited in the opposition proceedings: ATB Norte, SL.

      Mark or sign cited in opposition: Figurative Community trade marks containing the word elements ‘CENTROS DE BRICOLAGE BRICOCENTER’ (No 3 262 623) and ‘ATB CENTROS DE BRICOLAGE BRICOCENTER’ (No 989 046) in respect of goods in Classes 35, 37 and 39.

      Decision of the Opposition Division: Opposition upheld.

      Decision of the Board of Appeal: Opposition Division’s decision annulled and the opposition rejected in its entirety.

      Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-309/14: Judgment of the Court (Second Chamber) of 2 September 2015 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio — Italy) — Confederazione Generale Italiana del Lavoro (CGIL), Istituto Nazionale Confederale Assistenza (INCA) v Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia e delle Finanze (Reference for a preliminary ruling — Status of third-country nationals who are long-term residents — Directive 2003/109/EC — National legislation — Issue and renewal of a residence permit — Condition — Obligatory financial contribution — Amount eight times higher than that for obtaining a national identity card — Infringement of the principles of Directive 2003/109/EC)

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/8

         Judgment of the Court (Second Chamber) of 2 September 2015 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio — Italy) — Confederazione Generale Italiana del Lavoro (CGIL), Istituto Nazionale Confederale Assistenza (INCA) v Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia e delle Finanze
   (Case C-309/14) (1)

   ((Reference for a preliminary ruling - Status of third-country nationals who are long-term residents - Directive 2003/109/EC - National legislation - Issue and renewal of a residence permit - Condition - Obligatory financial contribution - Amount eight times higher than that for obtaining a national identity card - Infringement of the principles of Directive 2003/109/EC))
   (2015/C 354/09)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicants: Confederazione Generale Italiana del Lavoro (CGIL), Istituto Nazionale Confederale Assistenza (INCA)

      Defendants: Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia e delle Finanze

      Operative part of the judgment

   Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011, precludes national legislation, such as that at issue in the main proceedings, which requires third-country nationals, when applying for the issue or renewal of a residence permit in the Member State concerned, to pay a fee which varies in amount between EUR 80 and EUR 200, inasmuch as such a fee is disproportionate in the light of the objective pursued by that directive and is liable to create an obstacle to the exercise of the rights conferred by that directive.

      (1)  OJ C 339, 29.9.2014.


title: Case C-363/14: Judgment of the Court (Fourth Chamber) of 10 September 2015 — European Parliament v Council of the European Union (Actions for annulment — Police and judicial cooperation in criminal matters — Europol — List of third States and organisations with which Europol is to conclude agreements — Determination of the legal basis — Legal framework applicable after the entry into force of the Treaty of Lisbon — Transitional provisions — Secondary legal basis — Distinction between legislative acts and implementing measures — Consultation of the Parliament — Initiative of a Member State or the Commission)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/16

         Judgment of the Court (Fourth Chamber) of 10 September 2015 — European Parliament v Council of the European Union
   (Case C-363/14) (1)

   ((Actions for annulment - Police and judicial cooperation in criminal matters - Europol - List of third States and organisations with which Europol is to conclude agreements - Determination of the legal basis - Legal framework applicable after the entry into force of the Treaty of Lisbon - Transitional provisions - Secondary legal basis - Distinction between legislative acts and implementing measures - Consultation of the Parliament - Initiative of a Member State or the Commission))
   (2015/C 363/19)
   Language of the case: French

      Parties

      Applicant: European Parliament (represented by: F. Drexler, A. Caiola and M. Pencheva, acting as Agents)

      Defendant: Council of the European Union (represented by: E. Sitbon, K. Pleśniak and K. Michoel, acting as Agents)

      Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, J. Vláčil and J. Škeřík, acting as Agents), Hungary (represented by: M.Z. Fehér, G. Szima and M. Bóra, acting as Agents)

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders the European Parliament to pay the costs;

               3)

               Orders the Czech Republic and Hungary to bear their own costs.

      (1)  OJ C 329, 22.9.2014.


title: JUDGMENT OF THE COURT of 16 July 1998 in Case C-264/96 (reference for a preliminary ruling from the House of Lords): Imperial Chemical Industries plc (ICI) v. Kenneth Hall Colmer (Her Majesty's Inspector of Taxes) (Right of establishment - Corporation tax - Surrender by one company to another company in the same group of tax relief on trading losses - Residence requirement imposed on group companies - Discrimination according to the place of the corporate seat - Obligations of the national court)

text:
C 299/8               EN                Official Journal of the European Communities                                      26.9.98
court has particular difficulty in assessing the misleading             conformity with Community law or to disapply the
nature of the statement or description in question, it may              legislation in a situation falling outside the scope of
have recourse, under the conditions laid down by its own                Community law.
national law, to a consumer research poll or an expert's
report as guidance for its judgment.                               (1) OJ C 269, 14.9.1996.
(1) OJ C 247, 24.8.1996.
(2) OJ L 173, 6.7.1990, p. 5.
                                                                                JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
               JUDGMENT OF THE COURT                                                       of 16 July 1998
                        of 16 July 1998                            in Case C-287/96 (reference for a preliminary ruling from
                                                                   the Bundesfinanzhof): Kyritzer Stärke GmbH v.
in Case C-264/96 (reference for a preliminary ruling from                             Hauptzollamt Potsdam (1)
the House of Lords): Imperial Chemical Industries plc
(ICI) v. Kenneth Hall Colmer (Her Majesty's Inspector of           (Agriculture Ð Common organisation of the markets Ð
                            Taxes) (1)                             Production refunds Ð System of securities Ð Time limits
                                                                       Ð Primary requirement Ð Subordinate requirement)
(Right of establishment Ð Corporation tax Ð Surrender
by one company to another company in the same group of                                      (98/C 299/14)
tax relief on trading losses Ð Residence requirement
imposed on group companies Ð Discrimination according                              (Language of the case: German)
to the place of the corporate seat Ð Obligations of the
                        national court)
                                                                     (Provisional translation; the definitive translation will be
                         (98/C 299/13)
                                                                             published in the European Court Reports)
                (Language of the case: English)                    In Case C-287/96: reference to the Court under Article 177
                                                                   of the EC Treaty from the Bundesfinanzhof for a
                                                                   preliminary ruling in the proceedings pending before that
In Case C-264/96: reference to the Court under Article 177
                                                                   court between Kyritzer Stärke GmbH and Hauptzollamt
of the EC Treaty from the House of Lords (United
                                                                   Potsdam, on the interpretation of Commission Regulation
Kingdom) for a preliminary ruling in the proceedings
                                                                   (EEC) No 2220/85 of 22 July 1985 laying down common
pending before that court between Imperial Chemical
                                                                   detailed rules for the application of the system of
Industries plc (ICI) and Kenneth Hall Colmer (Her
                                                                   securities for agricultural products (2) in conjunction with
Majesty's Inspector of Taxes), on the interpretation of
                                                                   Commission Regulation (EEC) No 1722/93 of 30 June
Articles 5 and 52 of the EC Treaty Ð the Court,
                                                                   1993 laying down detailed rules for the application of
composed of: G. C. Rodríguez Iglesias, President, H.
                                                                   Council Regulations (EEC) No 1766/92 and (EEC)
Ragnemalm, M. Wathelet (Rapporteur) and R. Schintgen,
                                                                   No 1418/76 concerning production refunds in the cereals
Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
                                                                   and rice sectors respectively (3) Ð the Court (Fifth
Almeida, J. L. Murray, D. A. O. Edward, P. Jann, L.
                                                                   Chamber), composed of: C. Gulmann, President of
Sevón and K. M. Ioannou, Judges; G. Tesauro, Advocate
                                                                   Chamber, M. Wathelet, D. A. O. Edward, P. Jann
General; L. Hewlett, Administrator, for the Registrar, has
                                                                   (Rapporteur) and L. Sevón, Judges; P. LeÂger, Advocate
given a judgment on 16 July 1998, in which it has ruled:
                                                                   General; L. Hewlett, Administrator, for the Registrar, has
                                                                   given a judgment on 16 July 1998, in which it has ruled:
1. Article 52 of the EC Treaty precludes legislation of a
    Member State which, in the case of companies                   Article 10(1) of Commission Regulation (EEC) No 1722/
    established in that State belonging to a consortium            93 of 30 June 1993 laying down detailed rules for the
    through which they control a holding company, by               application of Council Regulations (EEC) No 1766/92
    means of which they exercise their right to freedom of         and (EEC) No 1418/76 concerning production refunds in
    establishment in order to set up subsidiaries in other         the cereals and rice sectors respectively is to be interpreted
    Member States, makes a particular form of tax relief           as follows:
    subject to the requirement that the holding company's
    business consists wholly or mainly in the holding of
    shares in subsidiaries that are established in the             Ð the use of a product falling within CN code
    Member State concerned;                                             3505 10 50, as prescribed by that provision,
                                                                        constitutes a primary requirement within the meaning
                                                                        of Article 20(2) of Commission Regulation (EEC)
2. in circumstances such as those in point in the main                  No 2220/85 of 22 July 1985 laying down common
    proceedings, Article 5 of the EC Treaty does not                    detailed rules for the application of the system of
    require the national court to interpret its legislation in          securities for agricultural products,


title: Case T-360/10: Action brought on 26 August 2010 — Tecnimed v OHIM — Ecobrands (ZAPPER-CLICK)

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/24

         Action brought on 26 August 2010 — Tecnimed v OHIM — Ecobrands (ZAPPER-CLICK)
   (Case T-360/10)
   2011/C 55/45
   Language in which the application was lodged: English

      Parties

      Applicant: Tecnimed Srl (Vedano Olona, Italy) (represented by: M. Franzosi and V. Piccarreta, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Ecobrands Ltd (London, United Kingdom)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 June 2010 in case R 1795/2008-4;

               —

               Confirm the decision of the Cancellation Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 October 2010; and

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘ZAPPER-CLICK’ for goods in classes 5, 9 and 10 — Community trade mark registration No 3870284

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

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

      Grounds for the application for a declaration of invalidity: Italian trade mark registration No 747249 of the word mark ‘CLICK’, for goods in class 10; Italian trade mark registration No 927574 of the word mark ‘MOUSTI CLICK’, for goods in class 10; Italian trade mark registration No 801404 of the word mark ‘ECO-CLICK’, for goods in class 10; Italian trade mark registration No 801405 of the word mark ‘ZANZA CLICK’, for goods in class 10; International trade mark registration No 825425 of the word mark ‘MOUSTI CLICK’, for goods in class 10; Non-registered trade mark of the word mark ‘CLICK’, protected in the United Kingdom; Non-registered trade mark of the word mark ‘ZANZA CLICK’, protected in the United Kingdom.

      Decision of the Cancellation Division: Declaration of partial invalidity of the Community trade mark

      Decision of the Board of Appeal: Annulled the decision of the Cancellation Division

      Pleas in law: Infringement and misinterpretation of Article 52(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal wrongfully excluded ‘bad faith’. Infringement and misinterpretation of Rules 38(2), 39(2), 39(3) and 96(2) of Commission Regulation (EC) No 2868/95, as the Board of Appeal wrongfully related inadmissibility of the ground of action to the alleged omitted translation of the documents, and as it did not consider that the translation had been provided by the applicant. Misapplication of Articles 53(1)(a) and 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal misused its power. Violation and misinterpretation of Articles 53(1)(b) and 8(3) of Council Regulation (EC) No 207/2009, as the Board of Appeal wrongfully hold that misappropriation had to be excluded since the trademarks at issue were not identical. Violation of Articles 53(1)(c) and 8(4) of Council Regulation (EC) No 207/2009, as the Board of Appeal wrongly excluded passing off and wrongly stated that the file does not provide evidence about the way the product was presented on the market.


title: Case C-24/11P: Appeal brought on 17 January 2011 by the Kingdom of Spain against the judgment delivered on 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission

text:
               26.3.2011

               EN

               Official Journal of the European Union

               C 95/6

         Appeal brought on 17 January 2011 by the Kingdom of Spain against the judgment delivered on 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission
   (Case C-24/11P)
   2011/C 95/10
   Language of the case: Spanish

      Parties

      Appellant(s): Kingdom of Spain (represented by: M. Muñoz Pérez, agent)

      Other party/parties to the proceedings: European Commission

      Form of order sought

               —

               Grant the appeal and set aside the judgment of the General Court of 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission

               —

               Annulment of all the financial corrections relating to aid for the production of olive oil granted in Commission Decision 2008/68/EC (1) of 20 December 2007; in the alternative, annulment of the financial corrections in the olive oil production sector which relate to expenditure for which advances were paid before 24 November 2002; in the further alternative, annulment of the financial corrections in the olive oil production sector which relate to expenditure for which advances were paid before 15 July 2000.

      Pleas in law and main arguments

               1.

               Internal inconsistency in the reasoning of the General Court and breach of Article 8 of Regulation 1663/95 (2) in accepting that the Commission should base its financial correction on irregularities not specified in letter AGR 16844 by which the results of investigation HO/2002/91/ES were communicated.

               2.

               Breach of Articles 36 and 53 of the Statute of the Court of Justice arising from failure to state sufficient reasons in the judgment by making no mention at all of, and as a result not ruling on, an essential head of claim formulated by the Kingdom of Spain in the record of the hearing concerning the determination of the dies ad quem for the time-limit of 24 months provided for in Article 5(2)(c) of Regulation No 729/70 (3) and Article 7 of Regulation No 1258/1999. (4)

               3.

               Infringement of the time-limit of 24 months established in Article 5(2)(c) of Regulation No 729/70 and Article 7 of Regulation No 1258/1999:

                           —

                           First, by calculating that time-limit from the date of the AGR 16844 letter, although that did not specify all the grounds on which the financial correction was based.

                           —

                           Secondly, by relying on a judgment of the Court of Justice (5) which is not applicable to a sector such as the olive oil production sector, in order to hold that the decisive date for the calculation of the time-limit of 24 months is the date of payment of the balance rather than payment of the advance.

      (1)  excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2008 L 18, p. 12)

      (2)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section

      (3)  Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (English special edition: Series I Chapter 1970(I) p. 218)

      (4)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103)

      (5)  In Case C-329/00 Spain v Commission [2003] ECR I-6103


title: Case C-70/09: Judgment of the Court (Third Chamber) of 15 July 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Alexander Hengartner, Rudolf Gasser v Landesregierung Vorarlberg (Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons — Lease of hunting ground — Regional tax — Concept of economic activity — Principle of equal treatment)

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/5

         Judgment of the Court (Third Chamber) of 15 July 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Alexander Hengartner, Rudolf Gasser v Landesregierung Vorarlberg
   (Case C-70/09) (1)

   (Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons - Lease of hunting ground - Regional tax - Concept of economic activity - Principle of equal treatment)
   2010/C 246/08
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicants: Alexander Hengartner, Rudolf Gasser

      Defendant: Landesregierung Vorarlberg

      Re:

   Reference for a preliminary ruling — Verwaltungsgerichtshof (Austria) — Interpretation of Article 43 EC — Concept of economic activity — Hunting for sport and without a profit motive — Sale of game to cover part of the hunting costs — No profit

      Operative part of the judgment

   The provisions of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999, do not preclude a national of one of the contracting parties from being subjected in the territory of the other contracting party, as a recipient of services, to different treatment from that reserved to persons whose principal residence is in that territory, citizens of the Union, and persons who are equated to those citizens under European Union law, with respect to the charging of a tax payable for the provision of services such as the making available of a right to hunt.

      (1)  OJ C 102, 01.05.2009.


title: Case C-522/08: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland) lodged on 28 November 2008 — Telekomunikacja Polska S.A., Warsaw, v President of the Urząd Komunikacji Elektronicznej

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/18

         Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland) lodged on 28 November 2008 — Telekomunikacja Polska S.A., Warsaw, v President of the Urząd Komunikacji Elektronicznej
   (Case C-522/08)
   (2009/C 69/32)
   Language of the case: Polish
   Referring court
   Naczelny Sąd Administracyjny
   Parties to the main proceedings

      Appellant: Telekomunikacja Polska S.A., Warsaw

      Defendant: President of the Urząd Komunikacji Elektronicznej
   Questions referred

               1.

               Does Community law permit the Member States to introduce a prohibition, directed at all undertakings providing telecommunication services, on making the conclusion of a service-provision contract contingent on the purchase of another service (combined sale) and, in particular, does a measure of this kind go beyond what is necessary to attain the objectives of the directives contained in the telecommunications package (Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (1); Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (2); Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (3); and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (4))?

               2.

               If the first question is answered in the affirmative, is a national regulatory authority competent, in the light of Community law, to monitor compliance with the prohibition laid down in Article 57(1)(1) of the Ustawa — Prawo Telekomunikacyjne (Polish Law on Telecommunications) of 16 July 2004 (Dziennik Ustaw No 171, item 1800, as amended)?

      (1)  OJ L 108, 24.4.2002, pp. 7-20.

      (2)  OJ L 108, 24.4.2002, pp. 21-32.

      (3)  OJ L 108, 24.4.2002, pp. 33-50.

      (4)  OJ L 108, 24.4.2002, pp. 51-77.


title: Case C-283/06: Reference for a preliminary ruling from the Zala megyei Bíróság Hongorie lodged on 29 June 2006 — Kögáz Rt., E-ON IS Hungary Kft., E-ON DÉDÁSZ Rt., Schneider Electric Hungária Rt., TESCO Áruházak Rt., OTP Garancia Biztositó Rt., OTP Bank Rt., ERSTE Bank Hungary Rt., and Vodafon Magyarország Mobil Távközlési Rt. v Zala Megyei Közigazgatási Hivatal Vezetője

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/23

         Reference for a preliminary ruling from the Zala megyei Bíróság Hongorie lodged on 29 June 2006 — Kögáz Rt., E-ON IS Hungary Kft., E-ON DÉDÁSZ Rt., Schneider Electric Hungária Rt., TESCO Áruházak Rt., OTP Garancia Biztositó Rt., OTP Bank Rt., ERSTE Bank Hungary Rt., and Vodafon Magyarország Mobil Távközlési Rt. v Zala Megyei Közigazgatási Hivatal Vezetője
   (Case C-283/06)
   (2006/C 212/38)
   Language of the case: Hungarian
   Referring court
   Zala megyei Bíróság/Hongorie
   Parties to the main proceedings

      Applicant: Kögáz Rt., E-ON IS Hungary Kft., E-ON DÉDÁSZ Rt. Schneider Electric Hungária Rt. TESCO Áruházak Rt., OTP Garancia Biztositó Rt., OTP Bank Rt., ERSTE Bank Hungary Rt. and Vodafon Magyarország Mobil Távközlési Rt.

      Defendant: Zala Megyei Közigazgatási Hivatal Vezetője
   Question(s) referred

               1.

               Must point 3(a) of part 4 of Annex X to the ‘Act of Accession’ (the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded), which provides that 'Hungary may apply, up to and including 31 December 2007, local business tax reductions of up to 2 % of the net receipts of undertakings, granted by local government for a limited period of time on the basis of Articles 6 and 7 of Act C of 1990 on Local Taxes', be interpreted as meaning that:

                           —

                           Hungary has been granted a temporary derogation which allows it to maintain local business tax, or that

                           —

                           by granting the possibility to maintain local business tax reductions, the Act of Accession also recognises that Hungary has the (provisional) right to maintain a tax on economic activities?

               2.

               Should Question 1 be answered in the negative, the referring court also asks the following question:
               On a correct interpretation 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, what are the criteria on which a tax may be considered not to be characterised as a turnover tax for the purposes of Article 33 of the Sixth Directive?


title: Judgment of the Court of First Instance of 26 April 2005 in Case T-395/03 Sophie Van Weyenbergh v Commission of the European Communities (Officials — Re-opening of an internal competition — Non-inclusion in the list of suitable candidates)

text:
               9.7.2005

               EN

               Official Journal of the European Union

               C 171/18

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 26 April 2005
   in Case T-395/03 Sophie Van Weyenbergh v Commission of the European Communities (1)

   (Officials - Re-opening of an internal competition - Non-inclusion in the list of suitable candidates)
   (2005/C 171/31)
   Language of the case: French
   In Case T-395/03: Sophie Van Weyenbergh, residing in Tervuren (Belgium), represented by C. Mourato, lawyer, against Commission of the European Communities (Agent: H. Tserepa-Lacombe and H. Kraemer, with an address for service in Luxembourg) — application for, firstly, annulment of the decision of the selection board of internal competition COM/TB/99 not to include the application in the list of suitable candidates following that competition and, secondly, damages — the Court of First Instance (sole judge: J. Pirrung), I. Natsinas, Administrator, for the Registrar, gave a judgment on 26 April 2005, in which it:

               1.

               Rejects the application;

               2.

               Orders the Commission to bear its own costs and half of the costs incurred by the applicant; the applicant is to bear the other half of her own costs.

      (1)  OJ C 59, 6.3.2004.


title: Case F-104/08: Judgment of the Civil Service Tribunal (Second Chamber) of 15 April 2010 — Angelidis v Parliament (Civil service — Officials — Vacant post — Execution of a judgment annulling the appointing decision — Legitimate expectations — Principle of officials’ entitlement to a career — Equal treatment — Principle of sound administration — Duty to have regard to the welfare of officials — Manifest error of assessment — Misuse of powers)

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/52

         Judgment of the Civil Service Tribunal (Second Chamber) of 15 April 2010 — Angelidis v Parliament
   (Case F-104/08) (1)

   (Civil service - Officials - Vacant post - Execution of a judgment annulling the appointing decision - Legitimate expectations - Principle of officials’ entitlement to a career - Equal treatment - Principle of sound administration - Duty to have regard to the welfare of officials - Manifest error of assessment - Misuse of powers)
   2010/C 148/92
   Language of the case: French

      Parties

      Applicant: Angel Angelidis (Luxembourg, Luxembourg) (represented by: É. Boigelot, lawyer)

      Defendant: European Parliament (represented by: C. Burgos and S. Seyr, acting as Agents)

      Re:

   First, annulment of notice of vacancy No 12564 concerning the filling of the post of Director of the Directorate-General for Internal Policies of the European Union — Directorate D Budgetary Affairs of the European Parliament and the recruitment procedure initiated by that notice. Second, annulment of the decision to reject the applicant’s candidacy for the post of Director of Budgetary Affairs of the Directorate-General for Internal Policies and to appoint another candidate to that post. Lastly, a claim for damages for the non-material and material loss suffered by the applicant and for him to be appointed to the grade of Director ‘ad personam’.

      Operative part of the judgment

   The Tribunal:

               1.

               Orders the European Parliament to pay the sum of EUR 1 000 to Mr Angelidis;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the European Parliament to bear its own costs and pay one third of the costs of Mr Angelidis;

               4.

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

      (1)  OJ C 44, 21.2.2009, p. 77.


title: Case T-291/16: Action brought on 3 June 2016 — Anta (China) v EUIPO (Representation of two drawn lines)

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/35

         Action brought on 3 June 2016 — Anta (China) v EUIPO (Representation of two drawn lines)
   (Case T-291/16)
   (2016/C 279/50)
   Language of the case: English

      Parties

      Applicant: Anta (China) Co. Ltd (Jinjiang City, China) (represented by: A. Franke, K. Hammerstingl, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU figurative mark (Representation of two drawn lines) — Application for registration No 13 581 483

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 9 March 2016 in Case R 1292/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009.


title: Case T-8/08: Judgment of the Court of First Instance of 10 March 2009 — Piccoli v OHIM (Shape of a sea shell) (Community trade mark — Application for a three-dimensional Community trade mark — Shape of a seashell — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character acquired through use — Article 7(3) of Regulation No 40/94)

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/26

         Judgment of the Court of First Instance of 10 March 2009 — Piccoli v OHIM (Shape of a sea shell)
   (Case T-8/08) (1)

   (Community trade mark - Application for a three-dimensional Community trade mark - Shape of a seashell - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character acquired through use - Article 7(3) of Regulation No 40/94)
   2009/C 90/41
   Language of the case: Italian

      Parties

      Applicant: G. M. Piccoli Srl (Alzano Lombardo, Italy) (represented by: S. Giudici and S. Caselli, lawyers)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 28 September 2007 (Case R 530/2007-1) concerning an application to register as a Community trade mark a three-dimensional sign consisting of the shape of a sea shell.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders G. M. Piccoli Srl to pay the costs.

      (1)  OJ C 64, 8.3.2008.


10.2.2001             EN                Official Journal of the European Communities                                      C 45/17
       Removal from the register of Case C-440/99 (1)                     Removal from the register of Case C-332/99 (1)
                        (2001/C 45/34)                                                     (2001/C 45/37)
By order of 20 September 2000 the President of the Court of        By order of 4 October 2000 the President of the Fifth Chamber
Justice of the European Communities has ordered the removal        of the Court of Justice of the European Communities has
from the register of Case C-440/99: Commission of the              ordered the removal from the register of Case C-332/99:
European Communities v Grand Duchy of Luxembourg.                  Commission of the European Communities v French Republic.
(1) OJ C 20 of 22.1.2000.                                          (1) OJ C 299 of 6.10.1999.
       Removal from the register of Case C-48/00 (1)
                                                                          Removal from the register of Case C-69/00 (1)
                        (2001/C 45/35)
                                                                                (2001/C 45/38)
By order of 25 September 2000 the President of the Court of
Justice of the European Communities has ordered the removal        By order of 5 October 2000 the President of the Court of
from the register of Case C-48/00: Commission of the               Justice of the European Communities has ordered the removal
European Communities v Kingdom of Spain.                           from the register of Case C-69/00: Commission of the
                                                                   European Communities v Ireland.
(1) OJ C 149 of 27.5.2000.
                                                                   (1) OJ C 149 of 27.5.2000.
       Removal from the register of Case C-290/98 (1)
                                                                          Removal from the register of Case C-197/98 (1)
                        (2001/C 45/36)
                                                                                (2001/C 45/39)
By order of 29 September 2000 the President of the Court of
Justice of the European Communities has ordered the removal        By order of 6 October 2000 the President of the Court of
from the register of Case C-290/98: Commission of the              Justice of the European Communities has ordered the removal
European Communities v Republic of Austria.                        from the register of Case C-197/98: Commission of the
                                                                   European Communities, supported by United Kingdom of
(1) OJ C 299 of 26.9.1998.                                         Great Britain and Northern Ireland v Hellenic Republic.
                                                                   (1) OJ C 234 of 25.7.1998.


title: Case C-425/13: Action brought on 24 July 2013 — European Commission v Council of the European Union

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/17

         Action brought on 24 July 2013 — European Commission v Council of the European Union
   (Case C-425/13)
   2013/C 274/29
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: G. Valero Jordana, F. Castillo de la Torre, Agents)

      Defendant: Council of the European Union

      The applicant claims that the Court should:

               —

               annul Article 2, second sentence, and Section A of the Addendum/Annex to the Council Decision authorising the opening of negotiations on linking the EU emissions trading scheme with an emissions trading system in Australia, or, in the alternative,

               —

               annul the Council Decision and to maintain the effects of the contested decision in case it is totally annulled, and

               —

               order the Council of the European Union to pay the costs.

      Pleas in law and main arguments

   First plea: breach of Articles 13(2) TEU, 218(2) to (4) TFEU and 295 TFEU and the principle of institutional balance. The Commission submits that the Council infringed Article 218 TFEU by imposing unilaterally upon the Commission a detailed procedure that creates ex novo powers for the Council and obligations upon the Commission that are not based in that provision. The Council has also infringed Article 13(2) TEU, in conjunction with Article 218(4) TFEU, and the principle of institutional balance, because the Council has expanded its powers conferred on it by the Treaties to the detriment of the Commission and the European Parliament
   Second plea: breach of Articles 13(2) TEU and 218 TFEU, and the principle of institutional balance, since the contested Decision provides that the detailed negotiating positions of the Union shall be established by the Special Committee or the Council. Article 218(4) TFEU gives only a consultative role to the Special Committee.


title: Case C-72/14: Request for a preliminary ruling from the Gerechtshof te ‘s-Hertogenbosch (Netherlands) lodged on 10 February 2014  — X, interested party: Directeur van het onderdeel Belastingregio Belastingdienst/X van de rijksbelastingdienst

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/16

         Request for a preliminary ruling from the Gerechtshof te ‘s-Hertogenbosch (Netherlands) lodged on 10 February 2014 — X, interested party: Directeur van het onderdeel Belastingregio Belastingdienst/X van de rijksbelastingdienst
   (Case C-72/14)
   2014/C 142/21
   Language of the case: Dutch

      Referring court

   Gerechtshof te ‘s-Hertogenbosch

      Parties to the main proceedings

      Appellant: X

      Interested party: Directeur van het onderdeel Belastingregio Belastingdienst/X van de rijksbelastingdienst

      Questions referred

               1.

               In the Fitzwilliam
                   (1) judgment the Court of Justice ruled that an E 101 certificate, issued by the competent institution of a Member State, is binding on the social security institutions of other Member States, even if the content of that certificate is incorrect. Does that decision also apply to cases such as that at issue here, where the designation rules of the Regulation (2) do not apply?

               2.

               Is it significant for the answer to that question that it was not the intention of the competent institution to issue an E 101 certificate, yet for administrative reasons it consciously and deliberately used documents which, judging by their format and content, appear to be E 101 certificates, while the interested party believed, and was also reasonably entitled to believe, that he had received such a certificate?

      (1)  Case C-202/97 FTS [2000] ECR I-883.

      (2)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition, 1971 (II) p. 416).


title: Case C-93/17: Action brought on 22 February 2017 — European Commission v Hellenic Republic

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/10

         Action brought on 22 February 2017 — European Commission v Hellenic Republic
   (Case C-93/17)
   (2017/C 129/12)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: A. Bouchagiar and B. Stromsky)

      Defendant: Hellenic Republic

      Form of order sought

               —

               declare that, by failing to take measures to comply with the judgment delivered by the Court of Justice on 28 June 2012 in Case C-485/10 Commission v Greece, EU:C:2012:395, the Hellenic Republic has failed to fulfil its obligations under that judgment and Article 260(1) TFEU;

               —

               order the Hellenic Republic to pay to the Commission, into the ‘European Union own resources’ account, a penalty payment in the sum of EUR 34 974 for each day of delay in complying with the Court’s judgment of 28 June 2012 in Case C-485/10, in respect of the period from the day on which judgment is delivered in the present case until the day on which the judgment of 28 June 2012 has been complied with;

               —

               order the Hellenic Republic to pay to the Commission, into the ‘European Union own resources’ account, a lump sum whose amount is derived from multiplying a daily sum of EUR 3 828 by the number of days that will have elapsed from the day of delivery of the judgment of 28 June 2012 until the day on which the infringement has ended or, if there has not been compliance, until the day on which judgment is delivered in the present case;

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

   On 2 July 2008, the European Commission issued Decision 2009/610/EC on the measures C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) implemented by Greece in favour of Hellenic Shipyards. By that decision, the Commission found certain aid in favour of Hellenic Shipyards to be incompatible with the internal market and ordered its recovery, including interest calculated up to the point in time at which the aid was fully recovered.
   On 8 October 2010, the Commission brought an action before the Court for infringement of Article 108(2) TFEU (Case C-485/10). The Court held on 28 June 2012 that, by failing to take, within the period laid down, all the measures necessary in order to implement the Commission decision and by failing to provide the information listed in Article 19 of that decision to the Commission within the period laid down, the Hellenic Republic had failed to fulfil its obligations under Articles 2, 3, 5, 6, 8, 9 and 11 to 19 of that decision.
   Since the Hellenic Republic has not taken measures to comply with the judgment delivered by the Court on 28 June 2012, it has failed to fulfil its obligations under that judgment and Article 260(1) TFEU.


title: Case C-424/99: Action brought on 29 October 1999 by the Commission of the European Communities against the Republic of Austria

text:
8.1.2000               EN                    Official Journal of the European Communities                                         C 6/19
(B) Where:                                                                   (ii) offending against      the   provisions  of   Directive
                                                                                76/768/EEC (2).
    (i) a proprietor has consented to or allowed goods to be
                                                                        (1) First Council Directive 89/104/EEC of 21 December 1988 to
         placed in the hands of a third party in circumstances
                                                                            approximate the laws of the Member States relating to trade
         where the latter’s rights to further market the goods              marks (OJ L 40, 11.2.1989, p. 1).
         are determined by the law of the contract of purchase          (2) Council Directive 76/768/EEC of 27 July 1976 on the approxi-
         under which that party acquired the goods, and                     mation of the laws of the Member States relating to cosmetic
                                                                            products (OJ L 262, 27.9.1976, p. 169).
    (ii) said law allows the vendor to impose restrictions on
         the further marketing or use of the goods by the
         purchaser but also provides that, absent the imposition
         by or on behalf of the proprietor of effective restrictions
         on the purchaser’s right to further market the goods,
         the third party acquires a right to market the goods in
         any country, including the Community,
                                                                        Action brought on 29 October 1999 by the Commission
                                                                        of the European Communities against the Republic of
                                                                                Austria
    then, if restrictions effective according to that law to limit
    the third party’s rights to market the goods have not been
    imposed, is the Directive to be interpreted so as to treat                                   (Case C-424/99)
    the proprietor as having consented to the right of the
    third party acquired thereby to market the goods in the                                        (2000/C 6/35)
    Community.
                                                                        An action against the Republic of Austria was brought
(C) If the answer to question (B) is in the affirmative, is it for      before the Court of Justice of the European Communities
    the national courts to determine whether, in all the                on 29 October 1999 by the Commission of the European
    circumstances, effective restrictions were imposed on the           Communities, represented by Josef Christian Schieferer, of its
    third party.                                                        Legal Service, acting as Agent, with an address for service in
                                                                        Luxembourg at the office of Carlos Gómez de la Cruz, also of
                                                                        its Legal Service, Wagner Centre C 254, Kirchberg.
(D) Is Article 7(2) of the Directive to be interpreted. in such a
    way, that legitimate reasons for the proprietor to oppose           The applicant claims that the Court should:
    further commercialisation of his goods include any actions
    by a third party which affect to a substantial extent the           1. Declare that, by failing to adopt the laws, regulations and
    value, allure or image of the trade mark or the goods to                 administrative provisions necessary to comply in full with
    which it is applied.                                                     Council Directive 89/105/EEC of 21 December 1988
                                                                             relating to the transparency of measures regulating the
                                                                             pricing of medicinal products for human use and their
(E) Is Article 7(2) of the Directive to be interpreted in such a             inclusion in the scope of national health insurance sys-
    way that legitimate reasons for the proprietor to oppose                 tems (1), and by failing to inform the Commission thereof,
    further commercialisation of his goods include the removal               the Republic of Austria has failed to fulfil its obligations
    or obliteration by third parties (in whole or in part) of any            under that directive;
    markings on the goods where such removal or obliteration
    is not likely to cause any serious or substantial damage to         2. Order the Republic of Austria to pay the costs of the
    the reputation of the trade mark or the goods bearing the                proceedings.
    mark.
                                                                        Pleas in law and main arguments
(F) Is Article 7(2) of the Directive to be interpreted in such a
    way that legitimate reasons for the proprietor to oppose            Contrary to the view taken by Austria, the Commission
    further commercialisation of his goods include the removal          submits that the bodies responsible for operating the Austrian
    or obliteration by third parties (in whole or in part) of           health service (Hauptverband der Sozialversicherungsträger)
    batch code numbers on the goods where such removal or               (Principal Association of Social Insurance Institutions) must be
    obliteration results in the goods in question                       treated as being State authorities for the purposes of the
                                                                        directive and that the inventory of medicines published by the
                                                                        abovementioned Hauptverband pursuant to Paragraph 31(3),
    (i) offending against any part of the criminal code of a            no 12, in conjunction with Paragraph 133(2), of the Allge-
         Member State (other than a part concerned with trade           meines Sozialversicherungsgesetz (General Law on Social
         marks) or                                                      Security Insurance) (‘ASVG’) is a positive list within the
 ---pagebreak--- C 6/20               EN                     Official Journal of the European Communities                                   8.1.2000
meaning of Article 6 of Directive 89/105/EEC. For reimburse-           — to ensure compliance with the time-limit laid down in
ment in respect of a medicinal product not included in the                 Article 6 for the decision as to inclusion on the positive
inventory of medicines, approval of a head doctor or con-                  list;
trolling doctor is required under Paragraph 31(3), no 12, of
the ASVG. The statutorily defined criteria (suitability, necessity)    — to provide an effective legal remedy against negative
governing the granting of approval by a head doctor or                     decisions;
controlling doctor are so imprecise that no reliable determi-
nation as to whether a medicinal product is reimbursable can           — to comply with the obligation to state reasons for negative
be made directly on the basis of the Law.                                  decisions.
The Austrian legislature has failed to adopt the implementing
measures required                                                      (1) OJ 1989 L 40 of 11.2.1989, p. 8.


title: Case C-674/11: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 December 2011 — Établissement national des produits de l’agriculture et de la mer (FranceAgriMer), successor in law to the Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR) v Société Agroprovence

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/9

         Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 December 2011 — Établissement national des produits de l’agriculture et de la mer (FranceAgriMer), successor in law to the Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR) v Société Agroprovence
   (Case C-674/11)
   2012/C 89/13
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Établissement national des produits de l’agriculture et de la mer (FranceAgriMer), successor in law to the Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR)

      Defendant: Société Agroprovence

      Questions referred

               1.

               How is the option, granted by Article 2(4) of Council Regulation (EEC) No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the EAGGF, (1) to extend the scrutiny period ‘for periods … preceding or following the 12-month period’ which it defines, to be implemented by a Member State, having regard to, first, the need to protect the Communities’ financial interests, and second, the principle of legal certainty and the necessity to not give the scrutiny authorities indefinite power?

               2.

               In particular:

                           —

                           Must the period scrutinised, in all instances — if the scrutiny is not to be marred by an irregularity which the person scrutinised may rely on against the decision giving due effect to the results of the scrutiny — end during the twelve month period which precedes the ‘scrutiny’ period during which the scrutiny operations are carried out?

                           —

                           In the event of a positive reply to the preceding question, how must the option, expressly provided for by the regulation, to extend the period of scrutiny for periods ‘following the 12-month period’ be understood?

                           —

                           In the event of a negative reply to the first question, must the scrutiny period nevertheless — if the scrutiny is not to be marred by an irregularity which the scrutinised person may rely on against the decision giving due effect to the results of the scrutiny — include a twelve month period which ends during the scrutiny period preceding that during which the scrutiny was carried out, or, on the contrary, may the scrutiny cover only a period which ends before the beginning of the preceding scrutiny period?

      (1)  Council Regulation (EEC) No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund and repealing Directive 77/435/EEC (OJ 1989 L 388, p. 18).


title: Case C-475/08: Action brought on 5 November 2008 — Commission of the European Communities v Kingdom of Belgium

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/13

         Action brought on 5 November 2008 — Commission of the European Communities v Kingdom of Belgium
   (Case C-475/08)
   (2009/C 32/22)
   Language of the case: French
   Parties

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

      Defendant: Kingdom of Belgium
   Form of order sought

               —

               declare that,
               by failing to designate the systems operators as required under Article 7 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (1),
               by providing for not only a regulated access but also a negotiated access of third parties to the system contrary to Article 18 of Directive 2003/55/EC, in conjunction with Article 25(2) thereof,
               by failing to transpose Article 22(3)(d) and (e) and (4) of Directive 2003/55/EC,
               the Kingdom of Belgium has failed to fulfil its obligations under that directive;

               —

               order the Kingdom of Belgium to pay the costs.

         Pleas in law and main arguments
   The Commission raises three complaints in support of its action.
   First, it alleges that the defendant has not designated the systems operators for the transmission and storage of gas and liquefied natural gas terminals, as provided for in Articles 7 and 11 of Directive 2003/55/EC.
   It is then alleged that the defendant creates legal uncertainty with regard to new entrants in so far as it gives the impression that the negotiated access to the system is an alternative to the regulated access. However, it is clear from Articles 18 and 25(2) of Directive 2003/55/EC that regulated access is the only possible means of access for third parties to the system and that the regulatory authority alone is responsible for fixing or approving prior to their entry into force, at least the methodologies used to calculate or establish the tariffs.
   Finally, the Commission points out that, by exempting new large natural gas facilities from the application of the directive, the defendant has not correctly transposed Article 22(3)(d) of the directive, with respect to the requirement to publish the decision, and Article 22(3)(e) of the directive, concerning the obligation to consult the other Member States or regulatory authorities concerned by the interconnection of those infrastructures. Furthermore, the defendant has not made provision in its national law for the obligation to notify without delay such an exemption decision to the Commission, together with all the other relevant information with respect to that decision, as is provided for in Article 22(4) of the directive.

      (1)  OJ 2003 L 176, p. 57.


title: Case T-203/03: Judgment of the Court of First Instance of  5 October 2005  — Rasmussen v Commission (Officials — False statements concerning mission expenses — Disciplinary proceedings — Reprimand — Rules on languages — Medical confidentiality)

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/21

         Judgment of the Court of First Instance of 5 October 2005 — Rasmussen v Commission
   (Case T-203/03) (1)

   (Officials - False statements concerning mission expenses - Disciplinary proceedings - Reprimand - Rules on languages - Medical confidentiality)
   (2005/C 296/45)
   Language of the case: French
   Parties

      Applicant(s): Lars Bo Rasmussen (Hellerup, Denmark) (represented by: G. Bouneou and F. Frabetti, lawyers)

      Defendant(s): Commission of the European Communities (represented by: J. Currall and V. Joris and subsequently by V. Joris and M. Patkova, Agents)
   Application for
   (i) annulment of the Commission's decision of 1 July 2002 imposing on the applicant the disciplinary measure of a reprimand for false statements concerning mission expenses, (ii) restitution of amounts recovered pursuant to Article 85 of the Staff Regulations of Officials of the European Communities and (iii) compensation for the non-material damage allegedly sustained
   Operative part of the judgment
   The Court:

               1)

               Dismisses the action;

               2)

               Orders the applicant to bear his own costs and half of the costs incurred by the Commission;

               3)

               Orders the Commission to bear half of its own costs.

      (1)  OJ C 200, 23.8.2003.


title: Case T-17/16: Order of the General Court of 31 May 2017 — Ms v Commission (Action for damages — Decision of the Commission to put an end to a ‘letter of agreement and membership of Team Europe’ — Contractual liability — No arbitration clause — Manifest inadmissibility)

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/27

         Order of the General Court of 31 May 2017 — Ms v Commission
   (Case T-17/16) (1)

   ((Action for damages - Decision of the Commission to put an end to a ‘letter of agreement and membership of Team Europe’ - Contractual liability - No arbitration clause - Manifest inadmissibility))
   (2017/C 256/32)
   Language of the case: French

      Parties

      Applicant: Ms (represented by: initially by L. Levi and M. Vandenbussche, and subsequently by L. Levi, lawyers)

      Defendant: European Commission (represented by: I. Martínez del Peral, C. Ehrbar and A.-C. Simon, acting as Agents)

      Re:

   Application under Article 268 TFEU seeking compensation from the Commission for the damage caused following its decision of 10 April 2013 by which it decided to put an end to the applicant’s collaboration with the ‘Team Europe’ network of conference speakers.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               MS is ordered to pay the costs.

      (1)  OJ C 326, 5.9.2016.


title: Case C-157/06: Judgment of the Court (Second Chamber) of 2 October 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Public supply contracts — Directive 93/36/EEC — Award of public contracts without prior publication of a notice — Light helicopters for the police and the national fire service)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/5

         Judgment of the Court (Second Chamber) of 2 October 2008 — Commission of the European Communities v Italian Republic
   (Case C-157/06) (1)

   (Failure of a Member State to fulfil obligations - Public supply contracts - Directive 93/36/EEC - Award of public contracts without prior publication of a notice - Light helicopters for the police and the national fire service)
   (2008/C 301/08)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: X. Lewis and D. Recchia, acting as Agents)

      Defendant: Italian Republic (represented by: I.M. Braguglia, acting as Agent, and by G. Fiengo, lawyer)
   Re:
   Failure of a Member State to fulfil obligations — Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) — Failure to establish the existence of grounds capable of allowing a contracting authority to have recourse to the negotiated procedure without prior publication of a tender notice — Light helicopters acquired for the use of the police and fire service
   Operative part of the judgment
   The Court:

               1.

               Declares that by adopting Decree No 558/A/04/03/RR of the Minister for the Interior of 11 July 2003, authorising the derogation from the Community rules on public supply contracts in respect of the purchase of light helicopters for the use of police forces and the national fire service, without any of the conditions capable of justifying that derogation having been satisfied, the Italian Republic has failed to fulfil its obligations under Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, and in particular under Articles 2(1)(b), 6 and 9 thereof;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 131, 3.6.2006.


               5.11.2015

               EN

               Official Journal of the European Union

               C 366/11

         Request for an Advisory Opinion from the EFTA Court by Fürstliches Obergericht, Liechtenstein, dated 19 May 2015, in the Case of Abuelo Insua Juan Bautista v Liechtensteinische Invalidenversicherung
   (Case E-13/15)
   (2015/C 366/09)
   A request has been made to the EFTA Court by a letter dated 19 May 2015 from Fürstliches Obergericht, Liechtenstein (Princely Court of Appeal, Liechtenstein), which was received at the Court Registry on 29 May 2015, for an Advisory Opinion in the case of Abuelo Insua Juan Bautista v Liechtensteinische Invalidenversicherung, on the following questions:

               1.

               Is a recipient of benefits (claimant) prohibited, because the debtor institution is bound by the findings of the institution of the place of stay or residence under the second sentence of Article 87(2) of Regulation (EC) No 987/2009, from challenging those findings in the procedure before the debtor institution?

               2.

               If the first question is answered in the affirmative: does that binding effect also apply in court proceedings which, under national procedural rules, follow on from the proceedings before a debtor institution?


title: Case C-294/10: Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 15 June 2010 — Andrejs Eglītis and Edvards Ratnieks v Ekonomikas Ministrija

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/29

         Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 15 June 2010 — Andrejs Eglītis and Edvards Ratnieks v Ekonomikas Ministrija
   (Case C-294/10)
   ()
   2010/C 221/46
   Language of the case: Latvian

      Referring court

   Augstākās tiesas Senāts

      Parties to the main proceedings

      Applicant: Andrejs Eglītis, Edvards Ratnieks

      Defendant: Latvijas Republikas Ekonomikas Ministrija

      Questions referred

               1.

               Is Article 5(3) of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, to be interpreted as meaning that an air carrier is required, in order to be found to have taken all reasonable measures to avoid extraordinary circumstances, to organise its resources in good time so that it is possible to operate a programmed flight once the unforeseen extraordinary circumstances have ceased to obtain, that is to say, during a certain period following the scheduled departure time?

               2.

               If the first question is answered in the affirmative, does Article 6(1) of Regulation No 261/2004 apply for the purpose of determining the minimum ‘reserve time’ which the air carrier, when organising its resources at the appropriate time, must provide for as a possible foreseeable delay in the event that extraordinary circumstances arise?

      (1)  OJ 2004 L 46, p. 1.