title: Action brought on 17 June 1997 by the Commission of the European Communities against the French Republic (Case C-225/97)

text:
  No C 252/16           I EN 1                Official Journal of the European Communities                                      16 . 8 . 97
  the time-limit for transposition expires . The time-limit in                 of limited liability, which the Court of Justice has
  question expired on 1 January 1994 but the Federal                           developed in relation to the Community's liability for
- Republic of Germany has not adopted the necessary                            legal acts, to the Commission decisions in question,
  measures .                                                                   which, in the applicants' and appellants' view, do not
                                                                               constitute legislative acts. In applying the principles of
  (•) OJ No L 35 , 12 . 2 . 1992, p . 24 .                                     liability for administrative action the Court of First
                                                                               Instance should have held the defendant 's measures to
                                                                               be unlawful so that the applicants' and appellants'
                                                                               claim in damages was well founded . A further
                                                                               infringement of Community law incurred in that, in
                                                                               examining whether the fundamental right to property
                                                                               and the fundamental right to carry on a business or
  Appeal brought on 13 June 1997 by Aloys Schroder, Jan                        trade had been infringed, the Court took no account
  Thamann and Karl-Julius Thamann, acting in the capacity
                                                                               of the individual's interest in fundamental rights which
  of partners in Zuchtschweine Epe GbR, against the
                                                                               is guaranteed in the Community legal order. In
  judgment delivered on 15 April 1997 by the Fifth                             adopting the contested decisions the Commission did
  Chamber of the Court of First Instance of the European
  Communities in Case T-3 90/94 between Aloys Schroder
                                                                               not in fact adopt generally applicable rules in relation
                                                                               to which it could claim scope for prognosis; they were
  and Others against Commission of the European
                               Communities                                     specific measures whose effects were not only
                                                                               foreseeable but also specifically intended.
                           ( Case C-221/97 P)
                              ( 97/C 252/31 )                            (') OJN0CI8I , 14 . 6 . 1997, p . 11 .
                                                                         (2 ) OJ No C 392, 31 . 12 . 1994 , p . 12 .
  An appeal against the judgment delivered on 15 April
  1997 by the Fifth Chamber of the Court of First Instance
  of the European Communities in Case T-3 90/94 ( J )
  between Aloys Schroder and Others and the Commission
  of the European Communities was brought before the
  Court of Justice of the European Communities on 13 June
  1997 by Aloys Schroder, Jan Thamann and Karl-Julius                    Action brought on 17 June 1997 by the Commission of
  Thamann, acting in the capacity of partners in                            the European Communities against the French Republic
  Zuchtschweine Epe GbR, Neuenkirchen, represented                                                  ( Case C-225/97)
  by Rudolf Brenken, of Rentzmann und Brenken,
  Quakenbriick, with an address for service in Luxembourg                                             ( 97/C 252/32 )
  at the Chambers of Michel Molitor, Pierre Feltgen and
  Andre Harpas, 14a Rue des Bains, Luxembourg.
                                                                         An action against the French Republic was brought before
  The appellants maintain the claims submitted in the                    the Court of Justice of the European Communities on
  proceedings before the Court of First Instance of the                  17 June 1997 by the Commission of the European
  European Communities (2 ) and claim that the Court of                  Communities, represented by Hendrik van Lier, Legal
  Justice should:                                                        Adviser, acting as Agent, with an address for service in
                                                                         Luxembourg at the office of Carlos Gomez de la Cruz,
  — order the respondent to pay DM 173 174,45 as                         Wagner Centre, Kirchberg.
      compensation for the damage arising from the
      contested decisions,
                                                                         The Commission of the European Communities claims
                                                                         that the Court should :
  — order the respondents to pay the costs.
  Pleas in law and main arguments adduced in support:                    — declare that, by adopting Law No 93/1416 of
                                                                              29 December 1993 as a measure for the transposition
  — Infringement of the right to a fair hearing: the Court                    into national law of the provisions of Council
      of First Instance did not take account of significant                   Directive 92/13/EEC of 25 February 1992
      arguments of the applicants and at any rate did not                     coordinating the laws, regulations and administrative
      refer to them, or referred to them incorrectly, in the                  provisions relating to the application of Community
      contested judgment. This applies in particular to the                   rules on the procurement procedures of entities
      argument that the definition, according to                              operating in the water, energy, transport and
      administrative borders, of the areas to be covered by                   telecommunications sectors ( ! ), the French Republic
      the bans was inappropriate and that only the criterion                  has failed to fulfil its obligations under Articles 1 (2 ),
      of distance away from the infected herds was the                        2 ( 1 ) (c ) and 2 ( 5 ) and Chapters 2 and 4 of Directive
      appropriate means of fighting the disease.                              92/ 13/EEC,
  — Infringement of Community law: an infringement of
      Community law resides in particular in the application             — order the French Republic to pay the costs.
 ---pagebreak--- 16 . 8 . 97             EN                      Official Journal of the European Communities                                 No C 252/ 17
Pleas in law and main arguments adduced in support:                        Pleas in law and main arguments adduced in support:
— Failure to fulfil the obligations resulting from                         The appellant complains that Community law has been
     Articles 1 (2 ), 2 ( 1 ) (c ) and 2 ( 5 ) of the Directive: Law       infringed and, in particular, that, in reaching its decision,
     No 93/1416 does not guarantee that the penalty will                   the Court of First Instance disregarded its obligation to
     have a genuinely dissuasive effect. It establishes, by                extrapolate the law.
     way of derogation, a specific interlocutory procedure
     which is less restrictive than that provided for under
     national civil law.                                                   (') OJ No C 137, 3 . 6 . 1995 , p . 26 .
                                                                           ( 2 ) OJ No C 181 , 4 . 6 . 1997, p. 13 .
— Failure to fulfil the obligations resulting from
     Chapter 2 of the Directive: the fact that recourse to
     the attestation procedure is optional for the
     contracting entities does not in any way mean that the
     attestation system is optional for the Member States,
     which are obliged to organize a system complying                      Action brought on 24 June 1997 by the Commission of
     with the provisions of Chapter 2 of the Directive .                   the European Communities against the Portuguese
                                                                                Republic
— Failure to fulfil the obligations resulting from                                                     ( Case C-229/97)
     Chapter 4 of the Directive: France has failed to specify
     the detailed rules governing intervention by the                                                    ( 97/C 252/34 )
     national authorities called upon to forward requests
     for conciliation to the Commission (Article 9 ( 2 ) of
     the Directive ). Lastly, Chapter 4 should have been                   An action against the Portuguese Republic was brought
     transposed in its entirety, if only for the purposes of               before the Court of Justice of the European Communities
     informing the persons concerned, as defined in                        on 24 June 1997 by the Commission of the European
     Article 9 ( 1 ), of the possibility open to them of having             Communities, represented by Francisco de Sousa Fialho,
     recourse to conciliation .                                             of its Legal Service, acting as Agent, with an address for
                                                                            service in Luxembourg at the office of Carlos Gomez de la
(') OJ No L 76 , 23 . 3 . 1992, p . 14 .
                                                                            Cruz, Wagner Centre, Kirchberg.
                                                                            The applicant claims that the Court should:
                                                                            — declare that, by failing to adopt within the prescribed
                                                                                period the laws, regulations or administrative
Appeal brought on 20 June 1997 by Hedwig Kuchlenz                                provisions necessary to comply fully and correctly
Winter against the judgment delivered on 16 April 1997                            with Council Directive 79/869/EEC H of 9 October
by the First Chamber of the Court of First Instance of the                        1979 concerning the methods of measurement and
European Communities in Case T-66/95 between Hedwig                               frequencies of sampling and analysis of surface water
Kuchlenz-Winter and the Commission of the European                                intended for the abstraction of drinking water in the
                              Communities
                                                                                Member States, the Portuguese Republic has failed to
                         ( Case C-228/97 P)                                       fulfil its obligations under the third paragraph of
                             ( 97/C 252/33 )                                      Article 189 of the EC Treaty and Article 13 of
                                                                                Directive 79/869/EEC in combination with Article 395
                                                                                and Annex XXXVI of the Act of Accession ( 2 ),
An appeal against the judgment delivered on 16 April
 1997 by the First Chamber of the Court of First Instance
of the European Communities in Case T-66/95 between                         — declare, in the alternative, that, by failing to inform
Hedwig Kuchlenz-Winter and the Commission of the                                  the Commission forthwith of such measures, the
 European Communities was brought before the Court of                             Portuguese Republic failed to fulfil its obligations
Justice of the European Communities on 20 June 1997 by                            under those provisions,
 Hedwig Kuchlenz-Winter, represented by Dieter Rogalla,
 Rechtsanwalt, with an address for service in Luxembourg                    — order the Portuguese Republic to pay the costs .
 at the Chambers of Decker, Braun & Wagner, 16 Avenue
 Marie-Therese .
                                                                             Pleas in law and main arguments adduced in support:
 The appellant claims that the Court should:
                                                                             Under the third paragraph of Article 189 of the EC Treaty,
 — uphold all four heads of claim ( l ) advanced by the                      a directive is to be binding, as to the result to be achieved,
      applicant and set aside the judgment (2 ) of the Court                 upon each Member State to which it is addressed. In the
      of First Instance,                                                     present case, under Article 13 of Directive 79/869/EEC,
                                                                             the Member States are to bring into force the necessary
 — order the respondent to pay all the costs, including                      provisions within two years of its notification. That period
      those of the proceedings before the Court of First                     expired on 1 January 1989 without Portugal having
      Instance .                                                             adopted the provisions necessary to comply with, firstly,


title: Case T-411/07: Judgment of the General Court of 6 July 2010 — Aer Lingus Group v Commission (Competition — Concentrations — Decision declaring a concentration incompatible with the common market — Concept of concentration — Disposal of all the shares acquired, so as to restore the situation prevailing before the implementation of the concentration — Refusal to order appropriate measures — Lack of competence of the Commission)

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/36

         Judgment of the General Court of 6 July 2010 — Aer Lingus Group v Commission
   (Case T-411/07) (1)

   (Competition - Concentrations - Decision declaring a concentration incompatible with the common market - Concept of concentration - Disposal of all the shares acquired, so as to restore the situation prevailing before the implementation of the concentration - Refusal to order appropriate measures - Lack of competence of the Commission)
   2010/C 221/56
   Language of the case: English

      Parties

      Applicant: Aer Lingus Group plc (Dublin, Ireland) (represented by: A. Burnside, Solicitor, B. van de Walle de Ghelcke and T. Snels, lawyers, and subsequently by A. Burnside and B. van de Walle de Ghelcke)

      Defendant: European Commission (represented by: X. Lewis, É. Gippini Fournier and S. Noë, Agents)

      Intervener in support of the defendant: Ryanair Holdings plc (Dublin), (represented by J. Swift QC, V. Power, A. McCarthy, D. Hull, Solicitors, and G. Berrisch, lawyer)

      Re:

   Application for annulment of Commission Decision C(2007) 4600 of 11 October 2007 rejecting the applicant’s request to initiate proceedings under Article 8(4) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), and to adopt interim measures under Article 8(5) of that regulation

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Aer Lingus Group plc to bear it own costs and those incurred by the Commission and Ryanair Holdings plc, including those relating to the interim proceedings.

      (1)  OJ C 8, 12.1.2008.


title: Case T-168/15: Order of the General Court of 11 May 2016 — Greece v Commission (EAFRD — Withdrawal of the contested measure — No need to adjudicate)

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/31

         Order of the General Court of 11 May 2016 — Greece v Commission
   (Case T-168/15) (1)

   ((EAFRD - Withdrawal of the contested measure - No need to adjudicate))
   (2016/C 251/36)
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: G. Kanellopoulos, E. Leftheriotou and A. Vasilopoulou, acting as Agents)

      Defendant: European Commission (represented by: J. Aquilina and D. Triantafyllou, acting as Agents)

      Re:

   Application based on Article 263 TFEU seeking the annulment of Commission Implementing Decision C(2015) 252 final of 26 January 2015 concerning the reduction of the interim payments relating to Greece’s rural development programme CCI 2007 GR 06 RPO 001 for the 2007-13 programming period and to the expenditure in respect of the periods from 1 January 2014 to 31 March 2014 and from 1 April 2014 to 30 June 2014.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               Each party shall bear its own costs.

      (1)  OJ C 245, 27.7.2015.


title: Case T-326/14: Action brought on 8 May 2014 — Novomatic v OHIM — Granini France (HOT JOKER)

text:
               28.7.2014

               EN

               Official Journal of the European Union

               C 245/23

         Action brought on 8 May 2014 — Novomatic v OHIM — Granini France (HOT JOKER)
   (Case T-326/14)
   2014/C 245/31
   Language in which the application was lodged: English

      Parties

      Applicant: Novomatic AG (Gumpoldskirchen, Austria) (represented by: W. M. Mosing, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Granini France (Macon, France)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Second Board of Appeal of 6 February 2014 in Case R 589/2013-2, with the consequence that the opposition is rejected and the Community trade mark No 9 594 458 is registered as applied for;

               —

               order that the defendant and — in case it intervenes in writing — the other party to the proceedings with OHIM have to bear their own costs and have to compensate the costs incurred by the Plaintiff in the proceeding in front of the General Court and in the appeal proceeding with OHIM

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark containing the word elements ‘HOT JOKER’ for goods in Classes 9 and 28 — Community trade mark application No 9 594 458

      Proprietor of the mark or sign cited in the opposition proceedings: Granini France

      Mark or sign cited in opposition: The figurative mark containing the word elements ‘joker +’ for goods in Classes 28 and 41

      Decision of the Opposition Division: The opposition was upheld

      Decision of the Board of Appeal: The appeal was rejected

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009; infringement of Article 75 ff. of Regulation No 207/2009; infringement of OHIM’s duty to exercise its powers in accordance with the general principles of European Union Law.


title: Case C-396/14: Judgment of the Court (Grand Chamber) of 24 May 2016 (request for a preliminary ruling from Klagenævnet for Udbud — Denmark) — MT Højgaard A/S, Züblin A/S v Banedanmark (Reference for a preliminary ruling — Article 267 TFEU — Jurisdiction of the Court — Status of the referring body as a court or tribunal — Procurement procedure in railway infrastructure sector — Negotiated procedure — Directive 2004/17/EC — Article 10 — Article 51(3) — Principle of equal treatment of tenderers — Group composed of two companies and admitted as such as a tenderer — Tender submitted by one of the two companies, in its own name, the other company having been declared insolvent — Company considered to be capable, by itself, of being admitted as a tenderer — Contract awarded to that company)

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/3

         Judgment of the Court (Grand Chamber) of 24 May 2016 (request for a preliminary ruling from Klagenævnet for Udbud — Denmark) — MT Højgaard A/S, Züblin A/S v Banedanmark
   (Case C-396/14) (1)

   ((Reference for a preliminary ruling - Article 267 TFEU - Jurisdiction of the Court - Status of the referring body as a court or tribunal - Procurement procedure in railway infrastructure sector - Negotiated procedure - Directive 2004/17/EC - Article 10 - Article 51(3) - Principle of equal treatment of tenderers - Group composed of two companies and admitted as such as a tenderer - Tender submitted by one of the two companies, in its own name, the other company having been declared insolvent - Company considered to be capable, by itself, of being admitted as a tenderer - Contract awarded to that company))
   (2016/C 260/03)
   Language of the case: Danish

      Referring court

   Klagenævnet for Udbud

      Parties to the main proceedings

      Applicants: MT Højgaard A/S, Züblin A/S

      Defendant: Banedanmark

      Operative part of the judgment

   The principle of equal treatment of economic operators, stated in Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, read together with Article 51 of that directive, must be interpreted as meaning that a contracting entity is not in breach of that principle where it permits one of two economic operators who formed part of a group of undertakings that had, as such, been invited to submit tenders by that contracting entity, to take the place of that group following the group’s dissolution and to take part, in its own name, in a negotiated procedure for the award of a public contract, provided that it is established, first, that that economic operator by itself meets the requirements laid down by the contracting entity and, second, that the continuation of its participation in that procedure does not mean that other tenderers are placed at a competitive disadvantage.

      (1)  OJ C 388, 3.11.2014.


title: Case F-41/10 RENV: Judgment of the Civil Service Tribunal (First Chamber) of 2 June 2016 — Bermejo Garde v EESC (Civil service — Referral back to the Tribunal after setting aside — Article 12a of the Staff Regulations — Official who has been the victim of harassment — Article 22a of the Staff Regulations — Official, whistleblower — Request for assistance — Rejection — Right to protection — Conditions — Rejection — Consequences — Application for compensation)

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/48

         Judgment of the Civil Service Tribunal (First Chamber) of 2 June 2016 — Bermejo Garde v EESC
   (Case F-41/10 RENV) (1)

   ((Civil service - Referral back to the Tribunal after setting aside - Article 12a of the Staff Regulations - Official who has been the victim of harassment - Article 22a of the Staff Regulations - Official, whistleblower - Request for assistance - Rejection - Right to protection - Conditions - Rejection - Consequences - Application for compensation))
   (2016/C 251/54)
   Language of the case: French

      Parties

      Applicant: Moises Bermejo Garde (Brussels, Belgium) (represented by: L. Levi, lawyer)

      Defendant: European Economic and Social Committee EESC (represented by: initially U. Schwab and M. Lernhart, acting as Agents, B. Wägenbaur, lawyer, then K. Gambino, acting as Agent, B. Wägenbaur, lawyer, finally K. Gambino and X. Chamodraka, acting as Agents, B. Wägenbaur, lawyer)

      Re:

   Civil service — Application for annulment of several decisions terminating the applicant’s service as the Head of Unit of the Legal Service with immediate effect, reassigning him to the Directorate for Logistics and refusing his formal application for assistance and the application for damages.

      Operative part of the judgment

   The Tribunal:

               1)

               Annuls the decisions of the President of the European Economic and Social Committee of 24 March 2010 terminating Mr Moises Bermejo Garde’s previous duties as Head of Unit of the Legal Service and of 13 April 2010 relating to his reassignment;

               2)

               Orders the European Economic and Social Committee to pay Mr Bermejo Garde the sum of EUR 25 000;

               3)

               Orders the European Economic and Social Committee to bear its own costs and to pay the costs incurred by Mr Bermejo Garde in Cases F-41/10, T-530/12 P and F-41/10 RENV.

      (1)  OJ C 209, 31/7/2010, p. 55.


title: Case T-479/14: Action brought on 26 June 2014  — Kendrion v Court of Justice of the European Union

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/65

         Action brought on 26 June 2014 — Kendrion v Court of Justice of the European Union
   (Case T-479/14)
   2014/C 253/89
   Language of the case: Dutch

      Parties

      Applicant: Kendrion NV (Zeist, Netherlands) (represented by: P. Glazener and T. Ottervanger, lawyers)

      Defendant: Court of Justice of the European Union

      Form of order sought

   The applicant claims that General Court should order the European Union:

               —

               in respect of material damage, to pay a sum of EUR 2 3 08  463 .98, or such sum that the Court considers can be reasonably granted, and

               —

               in respect of non-material damage, to pay a sum of EUR 1 1 0 50  000 .00 and alternatively, to pay a sum of EUR 1 7 00  000 .00 and, in the further alternative, to pay a sum determined by the parties on the basis of modalities set by the Court, or such sum which the Court considers reasonable, and

               —

               to pay each amount increased, from 26 November 2013, by a reasonable rate of late payment interest fixed by the Court, and

               —

               to pay the costs of the proceedings.

      Pleas in law and main arguments

   By judgment of 26 November 2013, Kendrion v Commission (C-50/12 P, EU:C:2013:771), the Court of Justice found a breach of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union in the proceedings before the General Court in Case T-54/06 Kendrion v Commission, concerning an application for the annulment of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 — Industrial bags), in so far as it is addressed to the applicant, and application for annulment or, alternatively, reduction of the fine imposed on the applicant.
   The Court of Justice also ruled that the sanction for a breach of the obligation under Article 47 of the Charter of Fundamental Rights of the European Union must be an action for damages before the General Court, since such an action constitutes an effective remedy.
   The applicant submits that the Court of Justice has already ruled in that judgment that the conditions for a sufficiently serious breach of a rule of law that is intended to confer rights on individuals have been met.
   The applicant also submits that the proceedings have now taken 5 years and 9 months; while, in its view, a period of 2 years and 6 months may be deemed reasonable, the reasonable period has been exceeded by 3 years and 3 months. For resolution within a reasonable period, therefore, a judgment would have had to be delivered by 26 August 2010 instead of on 26 November 2013.
   The material damage, which the applicant allegedly suffered as a result of the excessively long proceedings, would then consist of the additional financial expenses that the applicant has had to bear for the period concerned. That damage consists of interest calculated by the Commission on the amount of the fine of EUR 3 4 0 00  000 over the period concerned, with the costs, for the same period, of the bank guarantee lodged for payment of the fine with interest. That amount is less the costs linked to financing the payment to the European Union of the fine due on 26 August 2010, with interest, if the General Court had delivered a judgment by that date.
   As compensation for the non-material damage which the applicant allegedly suffered as a result of the excessively long proceedings, the applicant claims fair compensation equating to 10 % of the fine for each year, with a proportion of 10 % for a corresponding part of the year, that the proceedings before the General Court have exceeded a reasonable period. Such compensation is, in the applicant’s view, appropriate, given that an amount at the level of 10 % at the time of the Commission’s decision was the norm for penalty increases for each year that the infringement continued.
   In the alternative, the applicant claims fair compensation for the non-material damage equal to 5 % of the fine. That amount, it maintains, is in line with the compensation deemed appropriate by the Court of Justice in comparable situations of time-limits having been seriously exceeded in the assessment of cartel fines.


title: Case T-592/10: Action brought on 27 December 2010 — El Corte Inglés v OHIM — Technisynthese (BTS)

text:
               12.3.2011

               EN

               Official Journal of the European Union

               C 80/19

         Action brought on 27 December 2010 — El Corte Inglés v OHIM — Technisynthese (BTS)
   (Case T-592/10)
   2011/C 80/37
   Language in which the application was lodged: Spanish

      Parties

      Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: M. E. López Camba and J. L. Rivas Zurdo, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Technisynthese SARL (Saint Pierre Montlimart, France)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2010 in Case R 1380/2009-1 in its entirety;

               —

               order the defendant and any interveners to pay all the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: El Corte Inglés, SA.

      Community trade mark concerned: Word mark ‘BTS’ for goods in Classes 14, 18, 25 and 28.

      Proprietor of the mark or sign cited in the opposition proceedings: Technisynthese SARL.

      Mark or sign cited in opposition: National and Community figurative marks containing the word element ‘TBS’ for goods in Classes 18 and 25.

      Decision of the Opposition Division: Opposition rejected.

      Decision of the Board of Appeal: Decision of the Opposition Division annulled and opposition upheld.

      Pleas in law: Failure to demonstrate that the earlier marks have a reputation and have been put to use, and infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks at issue.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case T-733/15: Action brought on 16 December 2015 — Portuguese Republic v Commission

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/35

         Action brought on 16 December 2015 — Portuguese Republic v Commission
   (Case T-733/15)
   (2016/C 068/45)
   Language of the case: Portuguese

      Parties

      Applicant: Portuguese Republic (represented by: L. Inez Fernandes and M. Figueiredo, Agents, assisted by L. Silva Morais, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission decision notified by the Secretariat-General of the Commission in Case SG-Greffe (2015) D/11533 of 12 October 2015; (1)

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   The Portuguese Republic maintains that the request for payment sent by the Secretariat-General of the European Commission in Case SG-Greffe (2015) D/11533 of 12 October 2015 is flawed by reason of the following and must, therefore, be declared invalid:

               1.

               There is no justification for the contested measure as the Commission has usurped the powers of EU judicature and therefore lacks competence.

               2.

               The measure is based on an artificial division of the effects of the judgment of the Court of Justice in Case C-76/13, thus resulting in infringement of the Treaties or of any rule of law relating to their application.

               3.

               The Commission measure that is contested in this annulment action disregards the principle of res judicata, resulting once again in infringement of the Treaties or of any rule of law relating to their application.

               4.

               The measure is also unlawful on the ground that it disregards the principles of legal certainty, the stability of legal relations and legitimate expectations, recognised by EU law.

               5.

               The measure infringes the principle of the prohibition of double penalties, which precludes obtaining, through a new individual legal act, what could not be obtained previously by means of the judicial decision, resulting in infringement of the Treaties or of any rule of law relating to their application.

      (1)  Decision of the Director General of the Directorate-General for Communications Networks, Content and Technology of the European Commission, which required the Portuguese Republic to pay, between 25 June and 21 August 2014, the sum of EUR 580 000 by way of application of the periodic penalty payment which it was ordered go pay by the Court of Justice in Case C-76/13.


title: Case T-168/14: Action brought on 13 March 2014  — Pérez Gutiérrez v Commission

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/60

         Action brought on 13 March 2014 — Pérez Gutiérrez v Commission
   (Case T-168/14)
   2014/C 135/79
   Language of the case: Spanish

      Parties

      Applicant: Ana Pérez Gutiérrez (Mataró, Spain) (represented by: J. Soler Puebla, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               Declare that there has been an unlawful interference in the right to honour, family life and the protection of personal image by the unauthorised use of Mr Patrick Johannes Jacquemyn’s picture, through the European Commission’s inclusion of his photograph in the Picture library for health warnings for tobacco products in the European Union.

               —

               Order the defendant to pay the applicant the amount of EUR 181 104 in respect of loss of earnings.

               —

               Order the defendant to pay the applicant the amount of EUR 0.01 per tobacco packet or product on which Mr Patrick Jacquemyn’s picture appears, the total amount to be determined at the time of enforcement of the judgment, and which at this time represents an amount of twenty-seven million five hundred and eighty-eight thousand five hundred and twenty-four euro (EUR 27 588 524).

               —

               Order the defendant to pay to the applicant compensation for the benefit obtained through the unlawful use of Mr Patrick Jacquemyn’s picture, which amounts to EUR 13 790 000 in Spain, the place of residence of the applicant and Mr Patrick Jacquemyn.

      Pleas in law and main arguments

   The subject-matter of the present proceedings is an action to establish non-contractual liability in respect of, and for compensation for, the damage caused by, the European Commission’s unlawful use of a picture of Mr Patrick Johannes Jacquemyn, the applicant’s spouse, on the health warnings that are required to be included on all tobacco products in the European Union.
   In support of her action, the applicant claims that Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001, and Article 5(3) thereof, were implemented by European Commission Decision 2003/641/EC of 5 September 2003 on the use of colour photographs [or other illustrations] as health warnings on tobacco packages. Decision C (2005) 1452 of 26 May 2005 on the library of selected source documents containing colour photographs [or other illustrations] for each of the additional warnings listed in Annex I to Directive 2001/37/EC was subsequently adopted, and it was later amended by Decision C (2006) 1502 of 13 April 2006.
   That Directive and those Decisions concerning the pictures that are required to be included on tobacco packaging were transposed into the laws of each of the States of the European Union. Specifically, in the case of Spain, they were transposed by Royal Decree 639/2010 of 14 May [2010]. From the 42 pictures proposed by the European Commission, the Spanish State selected 14, including the picture of Mr Patrick Jacquemyn.
   The applicant states that Mr Jacquemyn was admitted to the Hospital de Barcelona on 21 June 2002 where he remained until 16 August 2002, and was in a coma for 22 days. Since then, and without his consent having been obtained, various pictures of Mr Jacquemyn have appeared on the internet, for his had been a clinical case of chronic obstructive pulmonary disease [COPD], he had undergone a difficult intubation and tracheotomy, and his had become a case-study.
   It was through this unauthorised use of a picture of Mr Patrick Jacquemyn while in a coma that one of his pictures was included in the Picture Library for health warnings, prior to the photograph being processed by the advertising company contracted for the campaign.


title: Case C-269/09: Action brought on 15 July 2009 — Commission of the European Communities v Kingdom of Spain

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/28

         Action brought on 15 July 2009 — Commission of the European Communities v Kingdom of Spain
   (Case C-269/09)
   2009/C 220/54
   Language of the case: Spanish

      Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal and F. Jimeno Fernández, acting as Agents)

      Defendant: Kingdom of Spain

      Form of order sought

               —

               declare that by adopting and maintaining in force, in Article 14 of Law No 35/2006 of 28 November 2006 on personal income tax and partially amending the laws on the taxation of corporations, non-residents’ income and wealth, a provision under which taxpayers who transfer their residence abroad are required to include any income not yet charged to tax in the tax base for the last tax year in which they were considered to be resident taxpayers, the Kingdom of Spain has failed to fulfil its obligations under Articles 19 EC, 38 EC and 43 EC and Articles 28 and 31 of the EEA Agreement;

               —

               order the Kingdom of Spain to pay the costs.

      Pleas in law and main arguments

               1.

               Under Article 14 of the Spanish Law on personal income tax and partially amending the laws on the taxation of corporations, non-residents’ income and wealth, revenue is subject to tax in the year in which it is received. Nevertheless, Article 14(2) contains special rules which make it possible to impute certain types of income to different tax periods. In cases in which a taxpayer transfers his residence abroad, however, Article 14(3) provides that all income not yet charged to tax is to be included in the tax base for the last tax year in which the taxpayer concerned was considered to be resident.

               2.

               The Commission submits that the Spanish legislation allows discriminatory treatment in cases in which an individual transfers his residence outside Spain and that Spanish law should apply the same rule irrespective of whether the individual maintains his residence on Spanish territory.

               3.

               The provision concerned infringes the principle of free movement of persons laid down in Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement.


title: Case T-361/06: Action brought on 5 December 2006 — Ballast Nedam v Commission

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/26

         Action brought on 5 December 2006 — Ballast Nedam v Commission
   (Case T-361/06)
   (2007/C 20/40)
   Language of the case: Dutch
   Parties

      Claimant: Ballast Nedam N.V. (represented by: A.R. Bosman and J.M.M. van de Hel, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Commission Decision C(2006) 4090 final of 13 September 2006, notified to the claimant on 25 September 2006, relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL), to the extent to which that decision is addressed to the claimant;

               —

               in the alternative, annul the decision in part, to the extent to which it is addressed to the claimant, with regard to the duration of the infringement and reduce the fine imposed on the claimant accordingly;

               —

               order the Commission to pay the costs of the present proceedings.

         Pleas in law and main arguments
   The claimant is challenging the Commission's decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL), by which a fine was imposed on the claimant for breach of Article 81 EC.
   According to the claimant, the Commission assumed, on grounds that are legally and factually flawed, that the claimant exercised a determining influence on the market conduct of Ballast Nedam Infra B.V. and Ballast Nedam Grond en Wegen B.V.
   In support of its action, the claimant invokes, in the first place, a breach of Article 81 EC. Second, the claimant submits that there has been an infringement of the general principles of Community law, in particular the principle of the presumption of innocence. In conclusion, the claimant contends that there has been a breach of Article 27(1) of Regulation No 1/2003 and of the rights of the defence in that it was not until the decision that the claimant's liability was assumed. The claimant was thus not given an opportunity to disprove that view by adducing evidence.


title: Case T-479/17: Action brought on 2 August 2017 — PO v EEAS

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/35

         Action brought on 2 August 2017 — PO v EEAS
   (Case T-479/17)
   (2017/C 347/44)
   Language of the case: French

      Parties

      Applicant: PO (represented by: N. de Montigny and J.-N Louis, lawyers)

      Defendant: European External Action Service

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the calculation note of 10 November 2016 which was sent to him by the EEAS human resources department as well as, to the extent necessary, the email of 24 October 2016 by which that department indicated to him that he is not eligible for reimbursement of the education costs of his two children above the ceiling set out in Article 15 of Annex X to the Staff Regulations of Officials since he is being reassigned;

               —

               annul, to the extent necessary, the reply expressly rejecting his complaint of 16 May 2017;

               —

               order the defendant to pay all costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging illegality inasmuch as the calculation note of 10 November 2016 (‘the contested individual decision’) as well as the note of 15 April 2016 and the note of 22 September 2016 on which it is based and the Guidelines infringe the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and Annex X thereto.

               2.

               Second plea in law, alleging illegality inasmuch as the notes on which the contested individual decision is based breach the Guidelines.

               3.

               Third plea in law, based on the illegality of the contested individual decision on the following grounds:

                           —

                           infringement of the precautionary principle and of the principles of legitimate expectations and legal certainty, and infringement of the principle of sound administration as well as that of acquired rights;

                           —

                           infringement of the right to family and the right to education;

                           —

                           infringement of the principles of equal treatment and non-discrimination;

                           —

                           failure to carry out a balancing of interests and failure to observe the principle that the measure adopted must be proportionate.


title: Case C-465/13: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 August 2013 — Europäische Schule München v Barbara O’Leary

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/7

         Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 August 2013 — Europäische Schule München v Barbara O’Leary
   (Case C-465/13)
   2013/C 336/17
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Appellant on a point of law: Europäische Schule München

      Respondent on a point of law: Barbara O’Leary

      Questions referred

               1.

               Is the first sentence of Article 27(2) of the Convention defining the Statute of the European Schools of 21 June 1994 (SES) (1) to be interpreted as meaning that part-time teachers employed by a European School, who are not seconded by the Member States, are persons covered by the Convention and are not — unlike the administrative and ancillary staff — excepted from the application of that provision?

               2.

               If the Court of Justice answers the first question in the affirmative:
               Is the first sentence of Article 27(2) of the SES to be interpreted as meaning that that provision also covers the legality of any act, based on the Convention or on the rules made under it, which is performed in relation to part-time teachers by the headteacher of a school in the exercise of his powers as specified by that Convention and which adversely affects such teachers?

               3.

               If the Court of Justice answers the second question in the affirmative:
               Is the first sentence of Article 27(2) of the SES to be interpreted as meaning that the conclusion of a contract between the headteacher of a European School and a part-time teacher concerning the fixed-term nature of the part-time teacher’s employment relationship also constitutes an act which is performed by the headteacher in relation to that part-time teacher and which adversely affects the latter?

               4.

               If the Court of Justice answers the second or third question in the negative:
               Is the first sentence of Article 27(2) of the SES to be interpreted as meaning that the Complaints Board referred to therein has exclusive jurisdiction in the first and final instance, once all administrative channels have been exhausted, in any dispute relating to the fixed-term nature of a contract of employment which the headteacher of a school concludes with a part-time teacher if that contract is essentially based on the requirement of the Board of Governors in point 1.3 of the Conditions of Employment for Part-time Teachers recruited after 31 August 1994, which provides for ‘annual contracts’?

      (1)  OJ 1994 L 212, p. 3.


title: Case T-184/13: Judgment of the General Court of 5 May 2015 — Skype v OHIM — Sky and Sky IP International (SKYPE) (Community trade mark — Opposition proceedings — Application for Community word mark SKYPE — Earlier Community word mark SKY — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/28

         Judgment of the General Court of 5 May 2015 — Skype v OHIM — Sky and Sky IP International (SKYPE)
   (Case T-184/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark SKYPE - Earlier Community word mark SKY - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 205/37)
   Language of the case: English

      Parties

      Applicant: Skype Ultd (Dublin, Ireland) (represented: initially by I. Fowler, Solicitor, J. Schmitt, lawyer, and J. Mellor QC, and subsequently by A. Carboni and M. Browne, Solicitors)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock and N. Bambara, acting as Agents)

      Other parties to the proceedings before the Board of Appeal of OHIM: Sky plc, formerly British Sky Broadcasting Group plc (Isleworth, United Kingdom); and Sky IP International Ltd (Isleworth) (represented by: R. Guthrie, D. Rose, V. Baxter, Solicitors, and T. Moody-Stuart, Barrister, subsequently by R. Guthrie, D. Rose, T. Moody-Stuart and J. Curry, Solicitor)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 30 January 2013 (Case R 121/2011-4) concerning opposition proceedings between, on the one hand, British Sky Broadcasting Group plc and Sky IP International Ltd and, on the other hand, Skype Ultd.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Skype Ultd to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Sky plc and Sky IP International Ltd.

      (1)  OJ C 171, 15.6.2013.


title: Case T-161/09: Judgment of the General Court of 16 December 2010 — Ilink Kommunikationssysteme v OHIM (ilink) (Community trade mark — Application for Community word mark ilink — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

text:
               12.2.2011

               EN

               Official Journal of the European Union

               C 46/11

         Judgment of the General Court of 16 December 2010 — Ilink Kommunikationssysteme v OHIM (ilink)
   (Case T-161/09) (1)

   (Community trade mark - Application for Community word mark ilink - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))
   2011/C 46/20
   Language of the case: German

      Parties

      Applicant: Ilink Kommunikationssysteme GmbH (Berlin, Germany) (represented by: B Schütze, lawyer)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 5 February 2009 (Case R 1849/2007-4), relating to registration of the word sign ‘ilink’ as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Ilink Kommunikationssysteme GmbH to pay the costs.

      (1)  OJ C 153 of 4.7.2009.


title: Case T-14/14: Action brought on 6 January 2014 — Islamic Republic of Iran Shipping Lines and Others/Council

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/26

      Action brought on 6 January 2014 — Islamic Republic of Iran Shipping Lines and Others/Council
      (Case T-14/14)
      (2014/C 71/49)
      Language of the case: English

         Parties

         Applicants: Islamic Republic of Iran Shipping Lines (Tehran, Iran), Hafize Darya Shipping Lines (HDSL) (Tehran), Khazar Shipping Lines (Anzali Free Zone, Iran), IRISL Europe GmbH (Hamburg, Germany), IRISL Marine Services and Engineering Co. (Qeshm Island, Iran), Irano — Misr Shipping Co. (Tehran), Safiran Payam Darya Shipping Lines (SAPID) (Tehran), Shipping Computer Services Co. (Tehran), Soroush Sarzamin Asatir Ship Management (Tehran), South Way Shipping Agency Co. Ltd (Tehran); and Valfajr 8th Shipping Line Co. (Tehran) (represented by: F. Randolph, QC, M. Lester, Barrister, and M. Taher, Solicitor)

         Defendant: Council of the European Union

         Form of order sought

      The applicants claim that the Court should:

                  —

                  Annul Council Decision 2013/497/CFSP of 10 October 2013, amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 272, p. 46) and Council Regulation (EU) No 971/2013 of 10 October 2013, amending Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 272, p. 1);

                  —

                  Order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that there is no proper legal basis for the contested measures, which include as listing criteria a connection with the first applicant (IRISL), shortly after the latter succeeded in its application for annulment.

                  2.

                  Second plea in law, alleging that the Council has breached the applicants’ legitimate expectations and the principles of finality, legal certainty, non bis in idem, res judicata and non-discrimination.

                  3.

                  Third plea in law, alleging that the Council has breached the applicants’ rights of defence by not informing IRISL or the other applicants that it intended to enact the contested measures and not giving the applicants a chance to make observations.

                  4.

                  Fourth plea in law, alleging that the contested measures violate the applicants’ fundamental rights, including their right to respect for their reputation and property.

                  5.

                  Fifth plea in law, alleging that the Council has abused its powers by enacting the contested measures; targeting IRISL and connected companies in circumvention of a Court judgment is not a proper use of its powers.


title: Case C-338/14: Judgment of the Court (Fourth Chamber) of 3 December 2015 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — Quenon K. SPRL v Beobank SA, formerly Citibank Belgium SA, Metlife Insurance SA, formerly Citilife SA (Reference for a preliminary ruling — Self-employed commercial agents — Directive 86/653/EEC — Article 17(2) — Termination of the agency contract by the principal — Compensation of the agent — Prohibition of the simultaneous operation of the indemnity for customers scheme and compensation for damage scheme — Entitlement of the agent to damages additional to the indemnity for customers — Conditions)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/7

         Judgment of the Court (Fourth Chamber) of 3 December 2015 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — Quenon K. SPRL v Beobank SA, formerly Citibank Belgium SA, Metlife Insurance SA, formerly Citilife SA
   (Case C-338/14) (1)

   ((Reference for a preliminary ruling - Self-employed commercial agents - Directive 86/653/EEC - Article 17(2) - Termination of the agency contract by the principal - Compensation of the agent - Prohibition of the simultaneous operation of the indemnity for customers scheme and compensation for damage scheme - Entitlement of the agent to damages additional to the indemnity for customers - Conditions))
   (2016/C 038/09)
   Language of the case: French

      Referring court

   Cour d’appel de Bruxelles

      Parties to the main proceedings

      Appellant: Quenon K. SPRL

      Respondents: Beobank SA, formerly Citibank Belgium SA, Metlife Insurance SA, formerly Citilife SA

      Operative part of the judgment

               1.

               Article 17(2) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as not precluding national legislation providing that a commercial agent is entitled, on termination of the agency contract, both to an indemnity for customers limited to a maximum of one year’s remuneration and, if that indemnity does not cover all of the loss actually incurred, to the award of additional damages, provided that such legislation does not result in the agent being compensated twice for the loss of commission following termination of the contract.

               2.

               Article 17(2)(c) of Directive 86/653/EEC must be interpreted as meaning that it does not make the award of damages conditional on demonstration of the existence of a fault attributable to the principal which caused the alleged harm, but does require the alleged harm to be distinct from that compensated for by the indemnity for customers.

      (1)  OJ C 339, 29.9.2014.


title: Judgment of the Court (Second Chamber) of 30 September 2004 in Case C-275/02 (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Engin Ayaz v Land Baden-Württemberg (EEC-Turkey Association — Freedom of movement for workers — First paragraph of Article 7 of Decision No 1/80 of the Association Council — Personal scope — Concept of ‘member of the family’ of a Turkish worker duly registered as belonging to the labour force of a Member State — Stepson of such a worker)

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/1

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 30 September 2004
   in Case C-275/02 (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Engin Ayaz v Land Baden-Württemberg (1)

   (EEC-Turkey Association - Freedom of movement for workers - First paragraph of Article 7 of Decision No 1/80 of the Association Council - Personal scope - Concept of ‘member of the family’ of a Turkish worker duly registered as belonging to the labour force of a Member State - Stepson of such a worker)
   (2004/C 284/01)
   Language of the case: German
   In Case C-275/02: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Stuttgart (Germany), made by decision of 11 July 2002, received at the Court on 26 July 2002, in the proceedings between Engin Ayaz and Land Baden-Württemberg — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.N. Cunha Rodrigues and R. Schintgen (Rapporteur), and F. Macken, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 30 September 2004, in which it has ruled:
   The first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, adopted by the Association Council established by the Association Agreement between the European Economic Community and Turkey, is to be interpreted as meaning that a stepson who is under the age of 21 years or is a dependant of a Turkish worker duly registered as belonging to the labour force of a Member State is a member of the family of that worker, for the purposes of that provision, and enjoys the rights conferred on him by that decision, provided that he has been duly authorised to join that worker in the host Member State.

      (1)  OJ C 261, 26.10.2002.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 20 February 1997 in Case C-260/95 (reference for a preliminary ruling from the High Court of Justice (Queen's Bench Division)): Commissioners of Customs and Excise v. DFDS A/S (Sixth VAT Directive - Special scheme for travel agents - Place of taxation of supply of services)

text:
No C 108/6              EN                  Official Journal of the European Communities                                      5 . 4 . 97
               JUDGMENT OF THE COURT                                                 JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                      (Fifth Chamber)
                       of 20 February 1997                                                  of 20 February 1997
in Case C- 1 66/95 P: Commission of the European
                                                                       in Case C-260/95 (reference for a preliminary ruling from
              Communities v. Frédéric Daffix (')
                                                                       the High Court of Justice ( Queen's Bench Division )):
  (Officials — Removal from post — Statement of reasons)                  Commissioners of Customs and Excise v. DFDS A/S (')
                            ( 97/C 108/09 )                            (Sixth VAT Directive — Special scheme for travel agents
                                                                                — Place of taxation of supply of services)
                                                                                ( 97/C 108/ 10 )
                 (Language of the case: French)
                                                                                (Language of the case: English)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
In Case C-l 66/95 P: Commission of the European                          (Provisional translation; the definitive translation will be
Communities (Agents: Dimitrios Gouloussis, assisted by                          published in the European Court Reports)
Benoit Cambier) — appeal against the judgment of the
Court of First Instance (Third Chamber) of 28 March
1995 in Case T-12/94 Daffix v. Commission [ 1995] ECR
SC 11-233, seeking to have that judgment set aside — the               In Case C-260/95 : reference to the Court under Article 177
other party to the proceedings being Frederic Daffix, an               of the EC Treaty from the High Court of Justice ( Queen's
official of the Commission of the European Communities,                Bench Division ) for a preliminary ruling in the
residing in Brussels, represented by Georges Vandersanden              proceedings pending before that court between
and Laure Levi, of the Brussels Bar, with an address for               Commissioners of Customs and Excise and DFDS A/S —
service in Luxembourg at the office of Fiduciaire Myson                on the interpretation of Article 26 of the Sixth Council
Sari, 1 Rue Glesener — the Court (Fifth Chamber),                      Directive ( 77/388/EEC) of 17 May 1977 on the
composed of: J. C. Moitinho de Almeida, President of the               harmonization of the laws of the Member States relating
Chamber,      L.   Sevón, D.        A.  O.  Edward, P. Jann            to turnover taxes — Common system of value added tax:
(Rapporteur) and M. Wathelet, Judges; A. La Pergola,                   uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977,
Advocate- General; D. Louterman-Hubeau, Principal                      p. 1 ) — the Court ( Fifth Chamber ), composed of: J. C.
Administrator, for the Registrar, has given a judgment on              Moitinho de Almeida, President of the Chamber, L. Sevón,
20 February 1997, in which it:                                         D. A. O. Edward, J. -P. Puissochet ( Rapporteur ) and M.
                                                                       Wathelet, Judges; A. La Pergola, Advocate-General; L.
                                                                       Hewlett, Administrator, for the Registrar, has given a
1 . quashes the judgment of the Court of First Instance of             judgment on 20 February 1997, in which it has ruled:
     28 March 1995 in Case T-12/94 Daffix v. Commission
     inasmuch as it, first, annulled the Commission 's
     decision of 18 March 1 993 removing Mr Daffix from
     his post, on the ground that the statement of reasons             Article 26 (2) of the Sixth Council Directive (77/388/EEC)
     was inadequate and, secondly, ordered the                         of 17 May 1977, on the harmonization of the laws of the
     Commission to pay the costs;                                      Member States relating to turnover taxes — Common
                                                                       system of value added tax: uniform basis of assessment, is
                                                                       to be interpreted as meaning that, where a tour operator
                                                                       established in one Member State provides services to
2. refers the case back to the Court of First Instance so              travellers through the intermediary of a company
     that it may give judgment on the other pleas relied               operating as an agent in another Member State, VAT is
     upon by the applicant at first instance, which are set            payable on those services in the latter State if that
     out in paragraph 29 of the contested judgment;                    company, which acts as a mere auxiliary organ of the tour
                                                                       operator, has the human and technical resources
                                                                       characteristic of a fixed establishment.
3.   reserves the costs .
                                                                        O OJ No C 248 , 23 . 9 . 1995 .
 (») OJ No C 208 , 12 . 8 . 1995 .


title: Case T-71/00: Action brought on 24 March 2000 by Kawasaki Steel Corporation against the Commission of the European Communities

text:
27.5.2000              EN                     Official Journal of the European Communities                                     C 149/41
— the re-opening and continuation of that competition                    — the contested decision infringes procedural rules, since it is
    constitute an inappropriate measure by which to give                     based on documents obtained by the Commission in 1994
    effect to the earlier judgments;                                         in the context of an investigation carried out in a separate
                                                                             case; such investigations were furthermore carried out in
— the re-opening and continuation of that competition are                    application of a Commission decision which was in fact
    contrary to the agreements reached between the parties;                  illegally adopted on the basis of both Articles 53 of the
                                                                             EEA Agreement and 85 of the EC Treaty; the contested
                                                                             decision also illegally relies on undated documents from
— the applicant’s contract for an indefinite period was                      an unknown source;
    terminated on the basis of his results in an internal
    competition, whereas, according to a Commission letter,
    failure to pass an external competition alone can constitute         — the contested decision fails to demonstrate the existence of
    a ground for terminating the employment relationship; the                the alleged infringement;
    contested decision dismissing the applicant is not reasoned;
    the dismissal was notified for a date which is legally               — the alleged agreement between European and Japanese
    incorrect.                                                               producers cannot in any event be regarded as having had
                                                                             an effect on trade between Member States;
                                                                         — the alleged agreement between European and Japanese
                                                                             producers cannot in any event be regarded as having had
                                                                             an appreciable effect on competition in the EC;
                                                                         — the duration of the infringement found by the Commission
                                                                             must at any event be regarded as erroneous;
Action brought on 24 March 2000 by Kawasaki Steel
Corporation against the Commission of the European
                           Communities                                   — in the event that the contested decision can be regarded as
                                                                             covering the EU offshore regions and in particular the UK
                                                                             offshore, the Commission has failed to state reasons for its
                          (Case T-71/00)                                     decision;
                         (2000/C 149/76)                                 — the fine imposed on the applicant should be reduced
                                                                             notably on the ground that any alleged agreement between
                                                                             the European producers should have been regarded as
                                                                             separate from the alleged agreement between the European
                   (Language of the case: English)                           and Japanese producers.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 24 March 2000 by Kawasaki Steel
Corporation, represented by Alexandre Vandencasteele and
Monica Cunningham of Liedekerke Siméon Wessing Houthoff,
Brussels.
                                                                         Action brought on 30 March 2000 by Artegodan GmbH
The applicant claims that the Court should:
                                                                           against the Commission of the European Communities
— annul the Commission decision of 8 December 1999 in
    case IV/EA/35.860-B Seamless steel tubes;                                                     (Case T-74/00)
— alternatively, to substantially reduce the fine imposed upon                                   (2000/C 149/77)
    the applicant;
— order the Commission to bear the costs of the procedure.                                 (Language of the case: German)
                                                                         An action against the Commission of the European Communi-
Pleas in law and main arguments                                          ties was brought before the Court of First Instance of the
                                                                         European Communities on 30 March 2000 by Artegodan
                                                                         GmbH, of Lüchow, Germany, represented by Ulf Doepner,
The applicant submits that the contested decision should be              Rechtsanwalt, of Bruckhaus Westrick Heller Löber, Düsseldorf,
annulled and/or the fine imposed on it at least substantially            Germany, with an address for service in Luxembourg at the
reduced for the following reasons:                                       Chambers of Bonn & Schmitt, 7 Val Ste Croix.


title: Reference for a preliminary ruling by the Royal Court of Jersey by order of that court dated 28 April 1997, in the case of Emidio Marco Rios against His Excellency the Lieutenant Governor of Jersey (Case C-199/97)

text:
No C 212/22             EN                     Official Journal of the European Communities                                      12 . 7 . 97
     Even the instances expressly admitted by the Federal                 Adviser, and Dimitris Triantafillou, of its Legal Service,
     Republic of one-off infringements of the maximum                     with an address for service in Luxembourg at the office of
     limits would, in the event of the proposal for                       Carlos Gomez de la Cruz, of its Legal Service, Wagner
     amendment being accepted by the Council, still not                   Centre, Kirchberg.
     lose their significance so long as the Federal Republic
     continues on average to carry out only eight to 10                   The applicant claims that the Court should :
     sampling operations per bathing season.
— Infringement of Article 6 (1 ) of the Directive :                       1 . declare that, by not giving notification of the laws,
                                                                               regulations and administrative provisions necessary to
                                                                               comply with Council Directive 93/76/EEC of
     The report to the Commission for 1995 shows that                          13 September 1993 to limit carbon dioxide emissions
     6,5 % of bathing areas on German coasts and 42,5 %                        by improving energy efficiency ( Save ) ('), or by not
     of German internal bathing areas were not sufficiently                    having adopted the measures necessary to comply with
     monitored in 1995 .
                                                                               it, the Hellenic Republic has failed to fulfil its
                                                                               obligations under that Directive;
                                                                          2 . order the Hellenic Republic to pay the costs.
Reference for a preliminary ruling by the Royal Court of                  Pleas in law and main arguments adduced in support:
Jersey by order of that court dated 28 April 1997, in the
case of Emidio Marco Rios against His Excellency the                      Under Article 10 of Directive 93/76/EEC, the Member
                  Lieutenant Governor of Jersey                           States were to adopt the measures necessary to comply
                          ( Case C-l 99/97 )                              with its provisions by 31 December 1994 and to inform
                                                                          the Commission thereof.
                             ( 97/C 212/40 )
                                                                          The Commission notes that the Hellenic Republic has not
Reference has been made to the Court of Justice of the                    yet brought its legislation into line with the Directive ,
European Communities by an order of the Royal Court of                    thereby failing to fulfil its obligations under Article 189 of
Jersey dated 28 April 1997, which was received at the                     the EC Treaty and Article 10 of the Directive .
Court Registry on 23 May 1997, for a preliminary ruling
in the case of Emidio Marco Rios and His Excellency the
                                                                          (') OJ No L 237, 22 . 9 . 1993 , p . 28 .
Lieutenant Governor of Jersey on the following questions:
1 . On the premise that British citizens are not liable to
     immigration control in, or to be deported from, Jersey,
     does Article 4 of the third Protocol to the Act of
     Accession of the United Kingdom to the European
     Communities (') have the effect that nationals of                    Reference       for a preliminary ruling by the
     another Member State are equally not liable to be                    Arrondissementsrechtbank Amsterdam by judgment of
     deported from Jersey ?                                               that court of 22 May 1997 in the case of Fitzwilliam
                                                                          Executive Search Limited, trading under the name of
2 . If the answer to the first question is 'No', does                     Fitzwilliam Technical Services (FTS ) against Bestuur van
     Article 4 prohibit the competent authorities in Jersey               het Landelijk Instituut Sociale Verzekeringen, successor
      from deporting a national of another Member State                   in law of the Bestuur van de Nieuwe Algemene
      save where such deportation is justified on grounds of                                     Bedrij fsvereniging
     public policy, public security or public health ?                                             ( Case C-202/97 )
                                                                                ( 97/C 212/42 )
 (') Official Journal, English Special Edition, 27. 3 . 1972, p. 164 .
                                                                          Reference has been made to the Court of Justice
                                                                          of the European Communities by judgment of the
                                                                          Arrondissementsrechtbank ( District Court) Amsterdam of
                                                                          22 May 1997, received at the Court Registry on 27 May
Action brought on 26 May 1997 by the Commission of                         1997, for a preliminary ruling in the case of Fitzwilliam
  the European Communities against the Hellenic Republic                  Executive Search Limited, trading under the name of
                           ( Case C-201 /97                               Fitzwilliam Technical Services ( FTS ) against Bestuur van
                                                                          het Landelijk Instituut Sociale Verzekeringen, successor in
                              ( 97/C 212/41 )                             law of the Bestuur van de Nieuwe Algemene
                                                                          Bedrijfsvereniging, on the following questions:
 An action against the Hellenic Republic was brought
 before the Court of Justice of the European Communities                   1 . ( a ) May the words 'undertaking to which he is
 on 26 May 1997 by the Commission of the European                                    normally attached' in Article 14 ( 1 ) ( a ) of EEC
 Communities, represented by Hendrik Van Lier, Legal                                 Regulation No 1408/71 be supplemented by other


title: Case C-445/17: Request for a preliminary ruling from the Commissione Tributaria Regionale del Lazio (Italy) lodged on 24 July 2017 — Agenzia delle Dogane e dei Monopoli v Pilato SpA

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/11

         Request for a preliminary ruling from the Commissione Tributaria Regionale del Lazio (Italy) lodged on 24 July 2017 — Agenzia delle Dogane e dei Monopoli v Pilato SpA
   (Case C-445/17)
   (2017/C 347/12)
   Language of the case: Italian

      Referring court

   Commissione Tributaria Regionale del Lazio

      Parties to the main proceedings

      Applicant: Agenzia delle Dogane e dei Monopoli

      Defendant: Pilato SpA

      Question referred

   Has CN heading 8704 of the Combined Nomenclature to be interpreted to the effect that it must include hearses? If the answer to the first question is in the negative, are hearses to be classified under CN heading 8705 or CN heading 8703?


title: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division, Divisional Court, by order of that court of 2 November 1998, in the case of Abbey National plc against Commissioners of Customs and Excise (Case C-408/98) (1999/C 1/19)

text:
C 1/10               EN                  Official Journal of the European Communities                                      4.1.1999
Reference      for      a     preliminary     ruling    from             authority's sphere of activity or the highest posts in
Överklagandenämnden för Högskolan by order of that                       that sphere?
body of 14 October 1998 in the case of 1. Katarina
Abrahamsson and 2. Leif Anderson against Elisabet
                                                                    (1) OJ L 39, 14.2.1976, p. 40.
                           Fogelqvist
                       (Case C-407/98)
                         (1999/C 1/18)
Reference has been made to the Court of Justice of                  Reference for a preliminary ruling by the High Court of
the      European       Communities       by      order    of       Justice (England & Wales), Queen's Bench Division,
Överklagandenämnden för Högskolan (Universities                     Divisional Court, by order of that court of 2 November
Appeals Board) of 14 October 1998, received at the Court            1998, in the case of Abbey National plc against
Registry on 26 October 1998, for a preliminary ruling in                        Commissioners of Customs and Excise
the case of 1. Katarina Abrahamsson and 2. Leif Anderson
against Elisabet Fogelqvist on the following question:                                      (Case C-408/98)
                                                                                (1999/C 1/19)
1. Do Articles 2(1) and 2(4) of Council Directive
    76/207/EEC (1) of 9 February 1976 on the
    implementation of the principle of equal treatment for          Reference has been made to the Court of Justice of the
    men and women as regards access to employment,                  European Communities by an order of the High Court of
    vocational training and promotion, and working                  Justice (England & Wales), Queen's Bench Division,
    conditions preclude national legislation under which            Divisional Court, of 2 November 1998, which was
    an applicant of the underrepresented sex possessing             received at the Court Registry on 17 November 1998, for
    sufficient qualifications for a public post is to be            a preliminary ruling in the case of Abbey National plc
    selected in priority over an applicant of the opposite          against Commissioners of Customs and Excise, on the
    sex who would otherwise have been selected (positive           following questions:
    special treatment') if there is a need for an applicant
    of the underrepresented sex to be selected and under
    which positive special treatment is not to be applied           1. Having regard to the terms of Article 17(2) of the
    only if the difference between the applicants'                       Sixth VAT Directive (1), do the words in Article 5(8)
    qualifications is so great that such treatment would be              thereof the recipient shall be treated as the successor
    contrary to the requirement of objectivity in the                    to the transferor' require that the recipient's supplies
    making of appointments?                                              should be treated as if they had been made by the
                                                                         transferor, for the purpose of determining the
                                                                         transferor's input tax deduction?
2. If the answer to Question 1 is in the affirmative, is
    positive special treatment not permissible in such a
    case even if application of the national legislation is         2. In the event of a transfer . . . of a totality of assets or
    restricted to appointments to either a limited number                part thereof' within Article 5(8) of the Sixth VAT
    of pre-determined posts (as under Regulation                         Directive, where the Member State, by virtue of
    1995/936) or posts created as part of a special                      national measures adopted pursuant to that article,
    programme adopted by an individual university                        considers that no supply of goods or services has taken
    under which positive special treatment may be                        place, may the taxpayer, upon the proper
    applied (as under Article 15(a) of Part 4 of                         interpretation of Article 5(8) and Article 17(2), deduct
    Högskoleförordningen)?                                               the whole of the input tax in respect of costs
                                                                         attributable to the transfer, if the taxpayer would, part
                                                                         from the application of Article 5(8), be obliged to
3. If the answer to Question 2 means that treatment like                 account for output tax on the transfer?
    positive special treatment is in some respect unlawful,
    can the rule, based on Swedish administrative practice
    and the second paragraph of Article 15 of Part 4 of             3. Where the economic activity of the transferor prior to
    Högskoleförordningen Ð approved by the Appeals                       the transaction falling within Article 5(8) has been
    Board Ð that an applicant belonging to the                           fully taxable, is input tax deductible in respect of a
    underrepresented sex must be given priority over a                   payment made in connection with the termination of
    fellow applicant of the opposite sex, provided that the              that activity?
    applicants can be regarded as equal or nearly equal in
    terms of merit, be regarded as being in some respect
                                                                    (1) Council Directive 77/388/EEC of 17 May 1977 on the
    contrary to Directive 76/207/EEC?                                   harmonisation of the laws of the Member States relating to
                                                                        turnover taxes Ð Common system of value added tax:
                                                                        uniform basis of assessment (OJ L 145, 13.6.1977, p. 1).
4. Does it make any difference in determining the
    questions set out above whether the legislation
    concerns lower-grade recruitment posts in an