title: Case C-405/15 P: Appeal brought on 24 July 2015 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment of the General Court (Eighth Chamber) delivered on 13 May 2015 in Case T-15/13 Group Nivelles v OHIM — Easy Sanitary Solutions (Shower drainage channel)

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/6

         Appeal brought on 24 July 2015 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment of the General Court (Eighth Chamber) delivered on 13 May 2015 in Case T-15/13 Group Nivelles v OHIM — Easy Sanitary Solutions (Shower drainage channel)

   (Case C-405/15 P)
   (2015/C 337/08)
   Language of the case: Dutch

      Parties

      Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Bonne and A. Folliard-Monguiral, acting as Agents)

      Other parties to the proceedings: Group Nivelles NV and Easy Sanitary Solutions BV

      Form of order sought

   OHIM claims that the Court should:

               —

               set aside the judgment under appeal;

               —

               order the applicant and the intervener before the General Court to pay the costs incurred by OHIM.

      Grounds of appeal and main arguments

   The General Court infringed Article 63(1) of [Regulation No 6/2002] (1) in holding that the older design, relied on in support of the application for a declaration of invalidity, is the ‘whole of the drainage device for liquid waste available from the company Blücher’. Group Nivelles relied only on the cover plate made available to the public both by Blücher and by other companies, irrespective of the shape of the collector;
   The General Court infringed Article 25(1)(b) of [Regulation No 6/2002], read in conjunction with Article 5 thereof, in holding that OHIM was required to compare the contested Community design with an earlier design resulting from the combination of two separate components, disclosed in various documents. According to the case-law of the Court of Justice applicable to Article 5 of [Regulation No 6/2002], the contested design may not be compared with ‘earlier individualised and defined designs, as opposed to an amalgam of specific features or parts of earlier designs’. The appearance of a product as assembled can sometimes be deduced from the appearance of its constituent parts, but that overall appearance remains hypothetical or, at any rate, subject to significant approximations. The concept of identity between two designs, specific to Article 5 of [Regulation No 6/2002], precludes a comparative analysis based on hypotheses or approximations;
   The General Court infringed Article 25(1)(b) of [Regulation No 6/2002], read in conjunction with Articles 6 and 7(1) thereof, in taking the view that, in the event that the compared designs are incorporated into products which differ in nature or in purpose, that difference may mean that it is impossible for the relevant informed user to recognise the earlier design. Article 7 of [Regulation No 6/2002] contains a legal fiction by which every ‘disclosed’ design is assumed to be known both to the professional public of the sector concerned by the earlier design and to the public of informed users of the type of product concerned by the contested design. Once the earlier design’s disclosure is established, it has to be assumed that the relevant informed user has knowledge both of the earlier design and of its methods of use, as follow from the evidence and arguments advanced by the parties.

      (1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).


title: Order of the President of the Court of First Instance of 25 June 2003 in Case T-175/03 R: Norbert Schmitt v European Agency for Reconstruction (Interim relief — Admissibility)

text:
C 213/36                EN                            Official Journal of the European Union                                         6.9.2003
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                  (3) order Europol to pay the applicant compensation includ-
                            INSTANCE                                                ing in any event the costs of the proceedings.
                          of 25 June 2003
                                                                              Pleas in law and main arguments
in Case T-175/03 R: Norbert Schmitt v European Agency
                        for Reconstruction
                                                                              The applicant has worked for the defendant since 1 July 1999.
                 (Interim relief — Admissibility)                             On 1 July 2003 her contract expires. However, the applicant’s
                                                                              request for a renewal of her contract was rejected by the
                                                                              defendant. The applicant is challenging that decision.
                          (2003/C 213/71)
                    (Language of the case: French)                            In support of her application the applicant first alleges an
                                                                              infringement of the duty to provide a statement of reasons.
In Case T-175/03 R: Norbert Schmitt, residing in Koellerbach                  The applicant goes on to assert that the defendant exceeded its
(Germany), represented by L. Polanz, lawyer, against European                 policy-making powers. The defendant drew up basic principles,
Agency for Reconstruction (Agent: C. Manolopoulos) —                          policy rules and a stage plan to ensure that contracts are
application for suspension of operation of the decision of the                extended in a clear and transparent manner. According to the
European Agency for Reconstruction to revoke the applicant’s                  applicant the defendant exceeded its margin of discretion in
contract of employment — the President of the Court of First                  the application of those rules.
Instance has made an order on 25 June 2003, the operative
part of which is as follows:
                                                                              Finally, the applicant submits that there was an infringement
1.    The application for interim relief is dismissed.                        of the duty of care, as well as an infringement of the principle
                                                                              of equal treatment.
2.    Costs are reserved.
                                                                              Lastly, the applicant asserts that the defendant misused its
                                                                              competence. The applicant states that the Netherlands Minister
                                                                              for Home Affairs carried out a security check on the applicant
                                                                              at the defendant’s request. That investigation disclosed nothing
                                                                              adverse against the applicant. However, according to the
                                                                              applicant, the mere fact that a security check was carried out
Action brought on 29 April 2003 by Elisabeth Saskia Smit                      constituted the actual reason for the refusal to extend her
                             v Europol                                        contract.
                          (Case T-143/03)
                          (2003/C 213/72)
                    (Language of the case: Dutch)
                                                                              Action brought on 30 April 2003 by Jose Maria Sison
                                                                                against the Council of the European Union
An action against Europol was brought before the Court of
                                                                                (Case T-150/03)
First Instance of the European Communities on 29 April 2003
by Elisabeth Saskia Smit, represented by P. de Casparis and
M.F. Baltussen.                                                                                (2003/C 213/73)
The applicant claims that the Court should:                                                      (Language of the case: English)
(1) annul the rejection by Europol on 25 February 2003
      of the applicant’s complaint against the decision of
      30 September 2002, together with the latter decision;                   An action against the Council of the European Union was
                                                                              brought before the Court of First Instance of the European
(2) order Europol to extend the applicant’s contract of                       Communities on 30 April 2003 by Jose Maria Sison, Utrecht,
      employment until 1 July 2007 or such other date as the                  the Netherlands, represented by Mr J. Fermon, Mr A. Comte,
      Court may determine;                                                    Mr E. Schultz and Mr D. Gurses, lawyers.


               5.2.2005

               EN

               Official Journal of the European Union

               C 31/1

         Lists for the purposes of determining the composition of the formations of the Fourth, Fifth and Sixth Chambers as from 12 October 2004
   (2005/C 31/02)
   At its meeting on 12 October 2004, the Court drew up the lists, referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure, for the purposes of determining the composition of the Chambers of three Judges as follows:
   Fourth Chamber
   Ms Colneric
   Mr Cunha Rodrigues
   Mr Schiemann
   Mr Juhász
   Mr Ilešič
   Mr Levits
   Fifth Chamber
   Mr Gulmann
   Mr Schintgen
   Mr Makarczyk
   Mr Kūris
   Mr Arestis
   Mr Klučka
   Sixth Chamber
   Mr La Pergola
   Mr Puissochet
   Mrs Macken
   Mr von Bahr
   Mr Malenovský
   Mr Lõhmus


title: Case T-313/10: Action brought on 26 July 2010 — Three-N-Products Private/OHMI — Shah (AYUURI NATURAL)

text:
               25.9.2010

               EN

               Official Journal of the European Union

               C 260/22

         Action brought on 26 July 2010 — Three-N-Products Private/OHMI — Shah (AYUURI NATURAL)
   (Case T-313/10)
   ()
   2010/C 260/30
   Language in which the application was lodged: English

      Parties

      Applicant: Three-N-Products Private Ltd (New Delhi, India) (represented by: C. Jäger, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Mr S Shah, Mr A Shah, Mr M Shah — A Partnership t/a FUDCO (Wembley, 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 1 June 2010 in case R 1005/2009-4;

               —

               Order the defendant to confirm the decision of the Opposition Division of the Office For Harmonisation in the Internal Market (Trade Marks and Designs) of 2 July 2009 and to reject the community trade mark application No 5805387 in its entirety;

               —

               Order the defendant to bear the costs of the proceedings;

               —

               Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal and the Opposition Division, should it become an intervening party in this case.

      Pleas in law and main arguments

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

      Community trade mark concerned: The word mark ‘AYUURI NATURAL’, for goods in classes 3 and 5

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

      Mark or sign cited: Community trade mark registration No 2996098 of the figurative mark ‘Ayur’, for, amongst others, the goods in classes 3 and 5; Community trade mark registration No 5429469 of the word mark ‘AYUR’, for, amongst others, goods in classes 3 and 5

      Decision of the Opposition Division: Upheld the opposition and rejected the application in its entirety

      Decision of the Board of Appeal: Upheld the appeal, annulled the contested decision and rejected the opposition

      Pleas in law: The applicant advances two pleas in law in support of its application.
   On the basis of its first plea, the applicant claims that the contested decision infringes Articles 7 and 8 of Council Regulation (EC) No 207/2009, as the Board of Appeal erroneously stated that there is no likelihood of confusion and that the earlier trademarks have a suggestive connotation in relation to the goods at hand which reduces the distinctive character of the earlier marks.
   By its second plea, the applicant considers that the contested decision infringes Article 65(2) of Council Regulation (EC) No 207/2009, as the Board of Appeal misused its power by ruling the contested decision since it lacks objectivity and legal basis.


title: Action brought on 20 May 1997 by the Commission of the European Communities against the Italian Republic (Case C-195/97)

text:
12 . 7 . 97             EN                       Official Journal of the European Communities                                     No C 212/ 19
Action brought on 16 May 1997 by the Commission of                          References for a preliminary ruling made by the Tribunal
the European Communities against the Federal Republic                       Administratif du Grand-Duche de Luxembourg (First
                              of Germany                                    Chamber) by judgments of that court of 7 May 1997 in
                          ( Case C-192/97)
                                                                            the cases of Manuel de Castro Freitas and Raymond
                                                                            Escallier against the Minister for Small Businesses and
                            ( 97/C 212/34 )                                                                     Tourism
                                                                                ( Cases C-193/97 and C-194/97)
                                                                                ( 97/C 212/35 )
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European                         Reference has been made to the Court of Justice of the
Communities on 16 May 1997 by the Commission of the
                                                                            European Communities by judgments of the Tribunal
European Communities, represented by Gotz zur Hausen,
                                                                            Administratif du Grand-Duche de Luxembourg ( First
of its Legal Service, with an address for service in
                                                                            Chamber ) ( Administrative Tribunal of the Grand Duchy
Luxembourg at the office of Carlos Gomez de la Cruz,                        of Luxembourg ( First Chamber)) of 7 May 1997, received
also of the Commission's Legal Service, Wagner Centre,
                                                                            at the Court Registry on 21 May 1997, for preliminary
Kirchberg.                                                                  rulings in the cases of Manuel de Castro Freitas and
                                                                            Raymond Escallier against the Minister for Small
The applicant claims that the Court should:                                 Businesses and Tourism on the following questions:
                                                                             1 . Does the first paragraph of Article 3 of Council
                                                                                Directive 64/427/EEC of 7 July 1964 laying down
 1 . declare the Federal Republic of Germany in breach of
                                                                                detailed provisions concerning transitional measures in
      its obligations under Council Directive 82/501/EEC of
                                                                                respect of activities of self-employed persons in
      24 June 1982 on the major-accident hazards of certain
                                                                                manufacturing and processing industries falling within
      industrial activities H, and in particular of Article 1
                                                                                ISIC Major Groups 23 to 40 ( Industry and small craft
      thereof in conjunction with Annexes I and III thereto,
      in that :
                                                                                industries ) ( l ), which refers to the taking up ' or pursuit
                                                                                of any activity referred to in Article 1 ( 2 )' ( Tune des
                                                                                activites mentionnees a Particle premier paragraphe 2 ,
      — it failed fully to adopt the concept of 'major                             ou l'exercice de celles-ci ') and to 'the fact that the
           accidents' in national law, since persons who are                       activity in question has been pursued' (' l'exercice
           under a duty to prevent occurrences or to deal                          effectif... de l'activite consideree'), cover the
           with their consequences are excluded from the                           situation where a Community national has pursued
           category of persons affected by a serious danger,                       simultaneously in the Member State whence he comes
                                                                                more than one activity falling within the scope of this
                                                                                Directive and applies to establish his business in
      — it failed fully to adopt the concept of ' industrial
                                                                                another Member State, continuing the simultaneous
           activity' in national law, since the handling of
                                                                                pursuit of those activities ( Case C-193/97 ) or trades
           chemicals is covered only if a chemical
           transformation takes place,                                             ( Case C-194/97), having regard, in particular, to
                                                                                the principle of the freedom of establishment laid
                                                                                down in Article 52 of the Treaty, now amended, of
      — in relation to nitrous oxide, it set a threshold level                      17 April 1957 establishing the European Economic
           incompatible with Annex III to the Directive,                           Community ?
                                                                             2 . If so, is the period of experience required by Article 3
      — it failed to include the substance referred to in
                                                                                ( a ) altered in respect of all or some of the activities
           No 175 of Annex III to the Directive within the
                                                                                concerned owing to the fact that they were pursued
           scope of the national provisions;                                        simultaneously ?
                                                                             3 . Does the fact that the activities in question are closely
 2 . order the Federal Republic of Germany to pay the                               connected, or even unconnected, have any relevance ?
       costs .
                                                                              (') Official Journal, English Special Edition 1963—64, p. 148 .
  Pleas in law and main arguments adduced in support:
 The pleas in law and main arguments are identical with
  those in Case C-l 86/97 ( 2). The period for implementation                 Action brought on 20 May 1997 by the Commission of
  expired on 8 January 1984 .                                                    the European Communities against the Italian Republic
                                                                                ( Case C-195/97)
  (') OJ No L 230 , 5 . 8 . 1982 , p. 1 , as last amended by Directive                                       ( 97/C 212/36 )
      91 /692/EEC ( OJ No L 377, 31 . 12 . 1991 , p . 48 ).
  (2) See page 16 of this Official Journal.
                                                                              An action against the Italian Republic was brought before
                                                                              the Court of Justice of the European Communities on
                                                                              20 May 1997 by the Commission of the European
 ---pagebreak--- No C 212/20              EN                  Official Journal of the European Communities                                       12 . 7. 97
Communities, represented by Paolo Stancanelli, of its                   3.   refer the action back to the Court of First Instance for
Legal Service, acting as Agent, with an address for service                  determination on the merits;
in Luxembourg at the office of Carlos Gomez de la Cruz,
also of its Legal Service, Wagner Centre, Kirchberg.                    4 . order the Commission to pay the costs of the
                                                                             interlocutory dispute .
The applicant claims that the Court should :
                                                                        Pleas in law and main arguments adduced in support:
— declare that, by failing to adopt and notify within the
      prescribed period the provisions necessary to transpose
      into its domestic legal system Council Directive 91/              The contested order states, contrary to the appellant's
      676/EEC of 12 December 1991 concerning the                        express intention, that the real object of the appellant's
      protection of waters against pollution caused by                  action was a declaration that the Federal Republic of
      nitrates from agricultural sources ('), and in particular         Germany has infringed the Treaty through the case-law
      by failing to comply with the obligation laid down in             of its courts, and that the appellant has thereby suffered
      Article 3 ( 2 ) of that Directive, the Italian Republic has       loss . That reinterpretation is factually unjustified and
      failed to fulfil its obligations under Community law,             procedurally inadmissible .
— order the Italian Republic to pay the costs of the
      proceedings.
Pleas in law and main arguments adduced in support:
                                                                        Reference for a preliminary ruling by the Liverpool
                                                                        Industrial Tribunal, by order of that court of 28 April
 Article 189 of the EC Treaty, which provides that a                    1997, in the case of Donna Marie Davies against
 Directive is binding, as to the result to be achieved, upon                                          Girobank pic
 each Member State to which it is addressed, implies an
 obligation on Member States to respect the time limits for                                        ( Case C-197/97)
 transposition laid down in Directives . That time limit                                             ( 97/C 212/38 )
 passed without the Italian Republic having adopted the
 measures necessary to comply with the Directive referred
 to in the form of order sought by the Commission.                      Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Liverpool
 0 ) OJ No L 375 , 31 . 12 . 1991 , p . 1 .                             Industrial Tribunal of 28 April 1997, which was received
                                                                         at the Court Registry on 23 May 1997, for a preliminary
                                                                         ruling in the case of Donna Marie Davies against
                                                                         Girobank pic, on the following questions :
                                                                         1 . Are all or any of the following contractual provisions
 Appeal brought on 21 May 1997 by Intertronic F.                              contrary to the principle of equal pay for equal work
 Cornelis GmbH against the order made on 19 February                          under Article 119 of the EC Treaty so far as they
  1997 by the Third Chamber of the Court of First Instance                    affect a woman who has returned to work after taking
 of the European Communities in Case T- 11 7/96 between                       maternity leave to which she was entitled:
 Intertronic F. Cornelis GmbH and the Commission of the
                       European Communities                                   ( a ) a provision whereby entitlement to a pension
                          ( Case C-196/97 P)                                         ( under a final salary pension scheme ) is calculated
                                                                                according to a formula which includes a factor
                             ( 97/C 212/37 )                                         representing pensionable service, where that
                                                                                pensionable service does not accrue during any
  An appeal against the order made on 19 February 1997                               period of unpaid leave (which term includes a
  by the Third Chamber of the Court of First Instance of the                         period of unpaid maternity leave when the woman
  European Communities in Case T-l 17/96 between                                     is no longer in receipt of the contractual or
  Intertronic F. Cornelis GmbH and the Commission of the                             statutory maternity pay ) when the employee does
  European Communities was brought before the Court of                               not pay contributions into the employer's
  Justice of the European Communities on 21 May 1997 by                              contributory pension scheme ;
  Intertronic F. Cornelis GmbH, Emden ( Germany ),
  represented by Detlef Schumacher and Wilhelm Wiltfang,                       ( b ) a practice whereby entitlement to a pension ( under
  Rechtsanwalte, Bremen.                                                              a final salary pension scheme ) is calculated
                                                                                according to a formula which includes a factor
                                                                                representing final pensionable salary, which means
  The appellant claims that the Court should:
                                                                                whichever is the greater of ( i ) the amount of the
                                                                                employee's pensionable salary paid during the
   1.  set aside the order of the Court of First Instance                             period of 12 months ending on the last day of her
       (Third Chamber ) of 19 February 1997;                                          employment, and ( ii ) the highest amount of
                                                                                pensionable salary received by the employee during
  2 . declare the action admissible;                                                  any one of the last five complete tax years before


title: Case T-439/04: Action brought on 5 November 2004 by Eurohypo AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               19.2.2005

               EN

               Official Journal of the European Union

               C 45/24

         Action brought on 5 November 2004 by Eurohypo AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-439/04)
   (2005/C 45/54)
   Language of the case: German
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 5 November 2004 by Eurohypo AG, Eschborn (Germany), represented by M. Kloth, Hamburg (Germany), lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 August 2004 (Case R-829/2002-4), in so far as it dismisses the appeal;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

               Applicant for the Community trade mark

               The applicant

               The trade mark applied for:

               The word mark EUROHYPO for services in Class 36 (financial affairs; monetary affairs; real estate affairs; provision of financial services; financing; financial analysis; investment affairs; insurance affairs)

               Decision of the examiner:

               Rejection of the application in respect of all services

               Decision of the Board of Appeal:

               Annulment of the contested decision with regard to the services financial analysis, investment affairs, insurance affairs in Class 36. Dismissal of the remainder of the appeal.

               Pleas in law:

               Infringement of the first sentence of Article 74(1) of Regulation (EC) No 40/94
               Misinterpretation of Article 7(1)(b)


title: Case C-359/01 P: Appeal brought on 21 September 2001 by British Sugar plc against the judgment delivered on 12 July 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Joined Cases T-202/98, T-204/98 and T-207/98 between Tate & Lyle plc, British Sugar plc, Napier Brown & Co. Ltd and the Commission of the European Communities

text:
C 317/20               EN                    Official Journal of the European Communities                                     10.11.2001
Appeal brought on 21 September 2001 by British Sugar                    Pleas in law and main arguments
plc against the judgment delivered on 12 July 2001 by the
Fourth Chamber of the Court of First Instance of the
                                                                        The appellant maintains that the facts relied upon by the Court
European Communities in Joined Cases T-202/98,
                                                                        of First Instance fail to establish that the agreement/concerted
T-204/98 and T-207/98 (1) between Tate & Lyle plc, British
                                                                        practice in question was capable of having an effect on inter-
Sugar plc, Napier Brown & Co. Ltd and the Commission
                                                                        State trade. The Court of First Instance also failed to have
                of the European Communities
                                                                        sufficient regard to the structure of the relevant market, a
                                                                        factor which, according to the Appellant, ought to have been
                                                                        taken into account as a mitigating factor. The Appellant
                                                                        therefore maintains that, on the basis of the fact and law as
                        (Case C-359/01 P)                               found by the Court of First Instance, that Court ought to have
                                                                        held that the fine imposed by the Commission was grossly
                                                                        disproportionate.
                         (2001/C 317/36)
                                                                        (1) OJ C 48, 20.2.1999, p. 29-30.
An appeal against the judgment delivered on 12 July 2001 by
the Fourth Chamber of the Court of First Instance of the
European Communities in Joined Cases T-202/98, T-204/98
and T-207/98 between Tate & Lyle plc, British Sugar plc,                Action brought on 24 September 2001 by the Com-
Napier Brown & Co. Ltd and the Commission of the European                  mission of the European Communities against Ireland
Communities, was brought before the Court of Justice of the
European Communities on 21 September 2001 by British                                             (Case C-362/01)
Sugar plc, represented by Messrs Thomas Sharpe QG, Daniel
Jowell, barrister, et Alex Nourry, solicitor, with an address for
                                                                                (2001/C 317/37)
service in Luxembourg.
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 24 September
                                                                        2001 by the Commission of the Europe an Communities,
The Applicant claims that the Court should find that:                   represented by Karen Banks, acting as agent, with an address
                                                                        for service in Luxembourg.
1)   the agreement/concerted practice was not capable of                The Applicant requests that the Court should:
     having an effect on trade between Member States; alterna-
     tively                                                             1)    declare that by failing to adopt the laws, regulations
                                                                              or administrative provisions necessary to comply with
                                                                              European Parliament and Council Directive 98/5/EC of
                                                                              16 February 1998 to facilitate practice of the profession
2)   the fine imposed was disproportionate
                                                                              of lawyer on a permanent basis in a Member State other
                                                                              than that in which the qualification was obtained (1), or
                                                                              in any event by failing to inform the Commission of
and seeks an order in the following terms:                                    those measures, Ireland has failed to fulfil its obligations
                                                                              under that Directive.
1)   that the Judgment of the Court of First Instance be set            2)    order Ireland to pay the costs of this action.
     aside: and
                                                                        Pleas in law and main arguments
2)   the contested Decision be annulled in whole, or alterna-
     tively in part; alternatively                                      Article 249 EC under which a directive shall be binding as to
                                                                        the result to be achieved, upon each Member State, carries by
                                                                        implication an obligation on the Member States to observe the
3)   Articles 3 and 4 of the contested Decision be annulled or          period for compliance laid down in the directive. That period
     the fine reduced; and                                              expired on 14 March 2000 without Ireland having enacted the
                                                                        provisions necessary to comply with the directive referred to
                                                                        in the conclusions of the Commission.
4)   the Commission pay British Sugar’s costs incurred in
     relation to this Appeal and the costs relating to Case,            (1) OJ L 77, 14.3.1998, p. 36-43.
     T-204/98 including those relating to the proceedings for
     interim relief.


title: Judgment of the Court of 12 September 2000 in Case C-276/97: Commission of the European Communities v French Republic (Failure to fulfil obligations — Article 4(5) of the Sixth VAT Directive — Access to roads on payment of a toll — Failure to levy VAT — Regulations (EEC, Euratom) Nos 1552/89 and 1553/89 — Own resources accruing from VAT)

text:
C 316/8                  EN                     Official Journal of the European Communities                                          4.11.2000
1.    Protocol No 2 on Article 119 of the Treaty establishing the          1.    Dismisses the appeal;
      European Community, annexed to the EC Treaty, applies to a
      payment such as the additional pre-retirement payment provided       2.    Orders the European Parliament to pay the costs.
      for by Collective Agreement No 17, rendered compulsory by the
      Royal Decree of 16 January 1975 and provided for in the
      Collective Labour Agreement of 23 May 1984 concluded                 (1) OJ C 246 of 28.8.1999.
      within Joint Sub-Committee No 315.1.
2.    An additional payment which, as in the present case, constitutes
      ‘pay’ within the meaning of Article 119 of the EC Treaty
      (Articles 117 to 120 of the EC Treaty have been replaced by
      Articles 136 EC to 143 EC) is not covered by Article 5 of
      Council Directive 76/207/EEC of 9 February 1976 on the
      implementation of the principle of equal treatment for men and
      women as regards access to employment, vocational training                            JUDGMENT OF THE COURT
      and promotion, and working conditions.
                                                                                of 12 September 2000
(1) OJ C 188 of 3.7.1999.
                                                                           in Case C-276/97: Commission of the European Communi-
                                                                                ties v French Republic (1)
                                                                           (Failure to fulfil obligations — Article 4(5) of the Sixth VAT
                                                                           Directive — Access to roads on payment of a toll — Failure to
                                                                           levy VAT — Regulations (EEC, Euratom) Nos 1552/89 and
                                                                                1553/89 — Own resources accruing from VAT)
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                           (2000/C 316/15)
                            of 13 July 2000
                                                                                (Language of the case: French)
in Case C-174/99 P: European Parliament v Pierre
                               Richard (1)                                 (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Officials — Recruitment procedure — Application of
             Article 29(1) of the Staff Regulations)
                                                                           In Case C-276/97: Commission of the European Communities
                                                                           (Agents: H. Michard and E. Traversa) v French Republic
                           (2000/C 316/14)                                 (Agents: K. Rispal-Bellanger, and G. Mignot) — application for
                                                                           a declaration that,
                     (Language of the case: French)                        —     by failing to charge value added tax on motorway tolls as
                                                                                consideration for the service supplied to users, contrary
                                                                                to Articles 2 and 4 of the Sixth Council Directive
(Provisional translation; the definitive translation will be published           77/388/EEC of 17 May 1977 on the harmonisation of
                    in the European Court Reports)                               the laws of the Member States relating to turnover taxes
                                                                                — Common system of value added tax: uniform basis of
In Case C-174/99 P: European Parliament (Agent: J. Sant’Anna,                    assessment (OJ 1977 L 145, p. 1), and
assisted by D. Waelbroeck) appeal against the judgment of the
Court of First Instance of the European Communities (Fifth                 —     by failing to make the corresponding sums, with interest
Chamber) of 9 March 1999 in Case T-273/97 Richard v                              for late payment, available to the Commission as own
Parliament [1999] ECR-SC I-A-45 and II-235, seeking to have                      resources,
that judgment set aside, the other party to the proceedings
being: Pierre Richard, an official of the European Parliament,             the French Republic has failed to fulfil its obligations under
residing in Luxembourg, represented by A. Lutgen and J. Felt-              the EC Treaty, — the Court, composed of: G.C. Rodrı́guez
gen, of the Luxembourg Bar, with an address for service in                 Iglesias, President, J.C. Moitinho de Almeida (Rapporteur),
Luxembourg at their Chambers, 1 Rue Jean-Pierre Brasseur —                 L. Sevón and R. Schintgen (Presidents of Chambers), P.J.G. Kap-
the Court (Fifth Chamber), composed of: D.A.O. Edward,                     teyn, C. Gulmann, J.-P. Puissochet, P. Jann, H. Ragnemalm,
President of the Chamber, P.J.G. Kapteyn, P. Jann, H. Ragne-               V. Skouris and F. Macken, Judges; S. Alber, Advocate General;
malm (Rapporteur) and M. Wathelet, Judges; J. Mischo, Advo-                D. Louterman-Hubeau and H.A. Rühl, Principal Adminis-
cate General; H.A. Rühl, Principal Administrator, for the                  trators, for the Registrar, has given a judgment on 12 Septemb-
Registrar, has given a judgment on 13 July 2000, in which it:              er 2000, in which it:
 ---pagebreak--- 4.11.2000               EN                       Official Journal of the European Communities                                                 C 316/9
1.   Declares that by failing to charge value added tax on motorway         resources and interest for late payment as a consequence of
     tolls collected as consideration for the service supplied to users,    that infringement, Ireland has failed to fulfil its obligations
     where that service is not provided by a body governed by public        under the EC Treaty — the Court, composed of: G.C. Rodrı́guez
     law within the meaning of Article 4(5) of the Sixth Council            Iglesias, President, J.C. Moitinho de Almeida (Rapporteur),
     Directive 77/388/EEC of 17 May 1977 on the harmonisation               L. Sevón, R. Schintgen (Presidents of Chambers), P.J.G. Kap-
     of the laws of the Member States relating to turnover taxes —          teyn, C. Gulmann, J.-P. Puissochet, P. Jann, H. Ragnemalm,
     Common system of value added tax: uniform basis of assess-             V. Skouris and F. Macken, Judges; S. Alber, Advocate General;
     ment, and by failing to make available to the Commission of            D. Louterman-Hubeau and H.A. Rühl, Principal Adminis-
     the European Communities as own resources accruing from                trators, for the Registrar, has given a judgment on 12 Septemb-
     value added tax the amounts corresponding to the value added           er 2000, in which it:
     tax which should have been levied on those tolls together with
     interest for late payment, the French Republic has failed to fulfil    1.    Declares that by failing to subject to value added tax tolls
     its obligations under Articles 2 and 4 of that directive and                 collected for the use of toll roads and toll bridges as consideration
     under Council Regulation (EEC, Euratom) No 1553/89 of                        for the service supplied to users, when that service is not provided
     29 May 1989 on the definitive uniform arrangements for the                   by a body governed by public law within the meaning of
     collection of own resources accruing from value added tax and                Article 4(5) of the Sixth Council Directive 77/388/EEC of
     Council Regulation (EEC, Euratom) No 1552/89 of 29 May                       17 May 1977 on the harmonisation of the laws of the Member
     1989 implementing Decision 88/376/EEC, Euratom on the                        States relating to turnover taxes — Common system of value
     system of the Communities’ own resources;                                    added tax: uniform basis of assessment, and by failing to make
                                                                                available to the Commission of the European Communities as
2.   Orders the French Republic to bear the costs.                                own resources accruing from value added tax the amounts
                                                                                corresponding to the tax which should have been levied on those
                                                                                tolls together with interest for late payment, Ireland has failed
(1) OJ C 295 of 27.9.1997.
                                                                                to fulfil its obligations under Articles 2 and 4 of that directive
                                                                                and under Council Regulation (EEC, Euratom) No 1553/89
                                                                                of 29 May 1989 on the definitive uniform arrangements for
                                                                                the collection of own resources accruing from value added tax
                                                                                and Council Regulation (EEC, Euratom) No 1552/89 of
                                                                                29 May 1989 implementing Decision 88/376/EEC, Euratom
                                                                                on the system of the Communities’ own resources.
                                                                            2.    Orders Ireland to bear the costs.
                  JUDGMENT OF THE COURT
                                                                            (1) OJ C 387 of 20.12.1997.
                       of 12 September 2000
in Case C-358/97: Commission of the European Communi-
                           ties v Ireland (1)
(Failure to fulfil obligations — Article 4(5) of the Sixth VAT                                 JUDGMENT OF THE COURT
Directive — Access to roads on payment of a toll — Failure to
levy VAT — Regulations (EEC, Euratom) Nos 1552/89 and
       1553/89 — Own resources accruing from VAT)                                                   of 12 September 2000
                          (2000/C 316/16)                                   in Case C-359/97: Commission of the European Communi-
                                                                            ties v United Kingdom of Great Britain and Northern
                                                                                Ireland (1)
                    (Language of the case: English)
                                                                            (Failure to fulfil obligations — Article 4(5) of the Sixth VAT
                                                                            Directive — Access to roads on payment of a toll — Failure to
In Case C-358/97: Commission of the European Communities                    levy VAT — Regulations (EEC, Euratom) Nos 1552/89 and
(Agents: H. Michard and B. Doherty) v Ireland (Agent: M.A.                         1553/89 — Own resources accruing from VAT)
Buckley, assisted by D. Sherlock, T. McCann and D. Moloney)
— application for a declaration that by not subjecting tolls for                                        (2000/C 316/17)
the use of toll roads and toll bridges in Ireland to value added
tax, contrary to Articles 2 and 4(1), (2) and (5) of the
Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                                (Language of the case: English)
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977 L 145, p. 1), and by failing to                In Case C-359/97: Commission of the European Communities
make available to the Commission the amounts of own                         (Agents: H. Michard and B. Doherty) v United Kingdom of


title: Case F-115/12: Order of the Civil Service Tribunal (Single judge) of 25 June 2013 — Marcuccio v Commission (Civil service — Officials — Action for damages — Availability of a parallel remedy — Manifestly inadmissible)

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/52

         Order of the Civil Service Tribunal (Single judge) of 25 June 2013 — Marcuccio v Commission
   (Case F-115/12) (1)

   (Civil service - Officials - Action for damages - Availability of a parallel remedy - Manifestly inadmissible)
   2013/C 252/96
   Language of the case: Italian

      Parties

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

      Defendant: European Commission (represented by: C. Berardis-Kayser and G. Gattinara, Agents)

      Re:

   Application for annulment of the implied decision rejecting the claim for compensation for the harm purportedly suffered by the applicant as a result of the Commission’s sending a letter concerning the recovery of the sum of EUR 4 875 relating to the costs which the General Court ordered the applicant to pay in Case T-241/03.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

      (1)  OJ C 26, 26.1.2013, p. 71.


title: Case C-9/16: Request for a preliminary ruling from the Amtsgericht Kehl (Germany) lodged on 7 January 2016 — Criminal proceedings against A

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/8

         Request for a preliminary ruling from the Amtsgericht Kehl (Germany) lodged on 7 January 2016 — Criminal proceedings against A
   (Case C-9/16)
   (2016/C 136/13)
   Language of the case: German

      Referring court

   Amtsgericht Kehl

      Party to the main proceedings

   A

      Other party: Staatsanwaltschaft Offenburg

      Questions referred

               1.

               Must Article 67(2) TFEU and Articles 20 and 21 of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (1), or any other rules of EU law, be interpreted as precluding national legislation which grants the police authorities of the Member State in question the power to check, within an area of up to 30 km from the land border of that Member State with the States party to the Convention implementing the Schengen Agreement of 14 June 1985 (Convention implementing the Schengen Agreement) (2), the identity of any person, irrespective of his behaviour and of specific circumstances, with a view to impeding or stopping unlawful entry into the territory of that Member State or to preventing certain criminal acts directed against the security or protection of the border or committed in connection with the crossing of the border, in the absence of any temporary reintroduction of border controls at the relevant internal border pursuant to Article 23 et seq. of the Schengen Borders Code?

               2.

               Must Article 67(2) TFEU and Articles 20 and 21 of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), or any other rules of EU law, be interpreted as precluding a rule of national law which grants the police authorities of the Member State in question the power briefly to stop and question any person on a train or on the premises of the railways of that Member State, with a view to impeding or stopping unlawful entry into the territory of that Member State, and to request that person to produce for purposes of checking the identity documents or border crossing papers he is carrying and visually inspect the articles he is carrying, if, on the basis of known facts or border police experience, it may be presumed that such trains or railway premises are used for unlawful entry and that entry is effected from a State party to the Convention implementing the Schengen Agreement of 14 June 1985 (Convention implementing the Schengen Agreement), in the absence of any temporary reintroduction of border controls at the relevant internal border pursuant to Article 23 et seq. of the Schengen Borders Code?

      (1)  Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).

      (2)  Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19).


title: Case T-180/16: Action brought on 22 April 2016 — L’Oréal v EUIPO — Guinot (MASTER SHAPE)

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/26

         Action brought on 22 April 2016 — L’Oréal v EUIPO — Guinot (MASTER SHAPE)
   (Case T-180/16)
   (2016/C 222/33)
   Language in which the application was lodged: French

      Parties

      Applicant: L’Oréal (Paris, France) (represented by: T. de Haan and P. Péters, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Guinot SAS (Paris, France)

      Details of the proceedings before EUIPO

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘MASTER SHAPE’ — Application for registration No 11 566 262

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 23 February 2016 in Case R 2907/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs, including those incurred by the applicant for the purposes of the proceedings before the Fifth Board of Appeal of EUIPO.

      Plea in law

               —

               Infringement of Article 8(1)(b) read in conjunction with Article 75 of Regulation No 207/2009.


title: Case T-240/17: Action brought on 20 April 2017 — Campine and Campine Recycling v Commission

text:
               26.6.2017

               EN

               Official Journal of the European Union

               C 202/25

         Action brought on 20 April 2017 — Campine and Campine Recycling v Commission
   (Case T-240/17)
   (2017/C 202/41)
   Language of the case: English

      Parties

      Applicants: Campine NV (Beerse, Belgium) and Campine Recycling NV (Beerse) (represented by: C. Verdonck, S. De Cock and Q. Silvestre, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare its application admissible;

               —

               annul Article 1 and 2 of the decision of the European Commission of 8 February 2017 (C(2017) 900 final) relating to a proceeding under Article 101 TFUE (‘the contested decision’), to the extent that it holds that the Applicants have infringed Article 101 TFUE;

               —

               in subsidiary order, annul Article 2 of the contested decision to the extent it imposes a fine on the Applicants of EUR 8 158 000,00 and to reduce the fine in line with the arguments of the application;

               —

               order the Commission to pay the Applicants’ costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on four pleas in law.

               1.

               First plea in law, alleging alleging a number of procedural heads of complaint including the duty to give reasons relating to the determination of the amount of the fine and in particular the need for the adjustment applied under point 37 of the Fining Guidelines (1) and regarding the percentage of the applied increase. The Applicants also submit that the Commission breached their rights of defense, their right to be heard and the principle of good administration by not stating the intention to apply an increase under point 37 of the Fining Guidelines in the Statement of Objections or in any Supplementary Statement of Objections. They also plead infringement of the duty to give reasons, the principles of legal certainty, equal treatment and proportionality because the Commission increased the amount of the Applicants’ fine by 10 % based on point 37 of the Fining Guidelines and applied this uniform increase to all the undertakings that had participated in the alleged infringement, without taking into account that the Applicants’ individual participation differed greatly from that of the other undertakings involved.

               2.

               Second plea in law, alleging alleging that the contested decision is erroneous as it has not established to the requisite legal standard that the Applicants committed an infringement of Article 101 TFEU. The Applicants invoke both the contested decision’s incorrect assessment of the evidence as well as the evidence’s inability to support the contested decision’s finding that the Applicants were a party to the infringement found in Article 1 of the contested decision.

               3.

               Third plea in law, alleging, in subsidiary order, if the Court were to conclude that the Applicants have been engaged in any agreement or practice infringing Article 101(1) TFEU, an infringement of Article 23(3) of Regulation No 1/2003 (2) and the Fining Guidelines due to an incorrect assessment of the gravity and duration of the infringement as well as the mitigating circumstances and a breach of the principle of non-discrimination in the calculation of the basic amount of the fine.

               4.

               Fourth plea in law, alleging, in subsidiary order, to the extent the Court would not annul the contested decision because of the procedural heads of complaint in the first plea in law, that these procedural breaches should at least give rise to an annulment of the increase of the fine imposed under point 37 of the Fining Guidelines.

      (1)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006, C 210, p. 2).

      (2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003, L 1, p. 1).


title: Case T-249/17: Action brought on 28 April 2017 — Casino, Guichard-Perrachon and EMC Distribution v Commission

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/32

         Action brought on 28 April 2017 — Casino, Guichard-Perrachon and EMC Distribution v Commission
   (Case T-249/17)
   (2017/C 221/45)
   Language of the case: French

      Parties

      Applicants: Casino, Guichard-Perrachon (Saint-Étienne, France) and EMC Distribution (Vitry-sur-Seine, France) (represented by: D. Théophile, I. Simic, O. de Juvigny and T. Reymond, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               prior to delivering judgment, order the Commission, pursuant to Article 89 and Article 90 of the Court’s Rules of Procedure, to produce all of the documents and other information on the basis of which, on the date of Decision C(2017) 1054, it considered that it had sufficiently strong evidence to justify carrying out an inspection at the applicants’ premises;

               —

               declare inapplicable in the present case, pursuant to Article 277 TFEU, Article 20 of Regulation No 1/2003 and, consequently, annul Commission Decision C(2017) 1054 of 9 February 2017;

               —

               annul, pursuant to Article 263 TFEU, European Commission Decision C(2017) 1054 of 9 February 2017;

               —

               order the Commission to pay all of the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on five pleas in law.

               1.

               First plea in law, alleging the illegality of the European Commission Decision of 9 February 2017 ordering the applicants to undergo an inspection pursuant to Article 20(1) and (4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), a decision which is contested in the present case (‘the contested decision’). The applicants claim in this regard that:

                           —

                           the contested decision is based on a provision which is itself illegal and therefore inapplicable in the present case, in accordance with Article 277 of the Treaty on the Functioning of the European Union (‘TFEU’);

                           —

                           Article 20 of Regulation No 1/2003 infringes the fundamental right to an effective remedy laid down in Article 47 of the European Union Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), in that it does not allow undertakings to which a Commission inspection decision is addressed to bring effective proceedings to challenge the manner in which the inspection is carried out;

                           —

                           that provision also infringes the principle of equality of arms and the rights of defence laid down in Article 47 and 48 of the Charter and Article 6 of the ECHR, in that it does not allow the parties to obtain access to the documents underlying the Commission’s decision to carry out an inspection.

               2.

               Second plea in law, alleging an infringement of the fundamental right to the inviolability of the home, laid down in Article 7 of the Charter and Article 8 of the ECHR, in that the contested decision is valid for an indefinite period and is both imprecise and disproportionate in its scope of application, since:

                           —

                           the contested decision specifies only the date on which the inspection may start but provides neither an end date nor a maximum duration for the inspection;

                           —

                           it applies to all companies of the Casino group, irrespective of their activity and geographical location, without identifying any one individually, except for its parent company;

                           —

                           it allows the inspection to be carried out at any of the group’s premises.

               3.

               Third plea in law, alleging infringement of the Commission’s obligation to state reasons, in that the contested decision does not state the type, nature, origin or content of the information with respect to which the Commission has decided to order an inspection.

               4.

               Fourth plea in law, alleging that the contested decision infringes the fundamental right to inviolability of the home, laid down in Article 7 of the Charter and in Article 8 of the ECHR, in that it was adopted without the Commission having sufficiently strong evidence to justify the carrying out of an inspection at the applicants’ premises.

               5.

               Fifth plea in law, alleging infringement of the principle of proportionality by reason of the adoption of the contested decision inasmuch as that decision provided for the start of the inspection on a date which is extremely disadvantageous for the applicants’ activity, even though another date, significantly less restrictive for them, could have been set, without any inconvenience for the Commission. In that regard, the applicants submit that, although it concerns specifically the premises of the entity within the Casino group responsible for negotiations with suppliers, the contested decision provides for the inspection to start on 20 February 2017 or shortly thereafter, that is to say the final week of negotiations concerning the annual agreements with suppliers, which Article L. 441-7 of the French code de commerce (Commercial Code) requires should be concluded before 1 March of the current year, this being a fact of which, it is submitted, the Commission was perfectly aware.


title: Case T-299/00: Action brought on 19 September 2000 by Gestevisión Telecinco against Commission of the European Communities

text:
C 355/30              EN                      Official Journal of the European Communities                                        9.12.2000
Action brought on 18 September 2000 by the company                       Finally, the applicant bases its action, in the alternative, on the
Claude-Anne de Solène against the Council of the Euro-                   objective responsibility of the Community for the unequal
pean Union and the Commission of the European Com-                       discharge of public burdens.
                             munities
                        (Case T-297/00)
                        (2000/C 355/67)                                  Action brought on 19 September 2000 by Gestevisión
                                                                         Telecinco against Commission of the European Communi-
                                                                                ties
                   (Language of the case: French)
                                                                                (Case T-299/00)
An action against the Council of the European Union and the                                        (2000/C 355/68)
Commission of the European Communities was brought
before the Court of First Instance of the European Communities
on 18 September 2000 by Claude-Anne de Solène, a company                                    (Language of the case: Spanish)
having its registered office in Houplines (France), represented
by Claude Lazarus and Florent Prunet, of the Paris Bar.                  An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 19 September 2000 by Gestevisión
The applicant claims that the Court should:                              Telecinco, whose registered office is at Madrid, represented by
                                                                         Santiago Muñoz Machado.
—     order the defendants to pay the applicant the sum of
      EUR 317 759 in respect of harm sustained, pursuant to              The applicant claims that the Court should:
      Article 288 of the EC Treaty (together with such amount            —     annul Commission Decision 2000/400/EC of 10 May
      as the Court may award to take account of the period                     2000 relating to a proceeding pursuant to Article 81 of
      between the date on which the action was brought and                     the EC Treaty, adopted in Case IV/32.150 — Eurovision,
      the date of judgment);                                                   published in OJ 2000 L 151, p. 18,
—     order the defendants to pay the costs.                             —     order the Commission to pay the costs of these proceed-
                                                                               ings.
Pleas in law and main arguments                                          Pleas in law and main arguments
                                                                         The decision being challenged in the present case is the
The applicant is a specialist manufacturer of cotton bed linen,          same as that in Case T-185/00 Métropole Télévision (M6) v
a significant proportion of which is marketed in the United              Commission (1).
States of America. Following the banana trade dispute between
the European Union and the United States, the United States              The pleas in law and main arguments are similar to those put
required importers of certain products, including the applicant,         forward in that case. In particular, the applicant alleges:
to pay additional customs duty of 100 % on the products
which they import into the United States.                                —     failure to comply with the judgment in Joined Cases
                                                                               T-528/93, T-542/93, T-543/93 and T-546/93 Métropole
                                                                               Télévision and Others v Commission;
The action seeks compensation for the loss caused by those
trade sanctions applied by the United States.                            —     failure to state reasons and substantive errors in assessing
                                                                               the facts and the applicable legislation, so far as concerns
                                                                               definition of the relevant market, the indispensable nature
In support of its action, the applicant claims, first, that by                 of the exclusivity clauses, the effects of public funding for
adopting and maintaining in force the Community import                         most of the EBU membership on its competitive position
arrangements for fresh bananas the defendants are in breach                    in the relevant market and the actual effect of the system
of the rules laid down by the GATT and the WTO. The                            of sub-licences as adopted 4;
Community institutions are required to observe those pro-
                                                                         —     infringement of each and every one of the four conditions
visions when drafting secondary Community legislation.                         laid down in Article 81(3) of the EC Treaty;
                                                                         —     Misuse of powers.
Second, the applicant relies on an infringement of the prin-
ciples of equality, non-discrimination and protection of legit-
imate expectations, in that the defendants unlawfully failed to          (1) Not yet published.
have regard to the situation of the undertakings affected by the
sanctions.


title: Order of the Court of Justice (Third Chamber) of 16 November 2000 in Case C-289/99 P: Schiocchet SARL v Commission of the European Communities (Appeal — International coach and bus transport of passengers — Appeal manifestly unfounded)

text:
30.6.2001                 EN                      Official Journal of the European Communities                                            C 186/3
D.A.O. Edward, P. Jann and L. Sevón (Rapporteur), Judges;                   ings pending before that court by Vincent Offermanns and
J. Mischo, Advocate General; H.A. Rühl, Principal Adminis-                   Esther Offermanns — on the interpretation of Articles 3 and
trator, for the Registrar, has given a judgment on 15 March                  4(1)(h) of Council Regulation (EEC) No 1408/71 of 14 June
2001, in which it has ruled:                                                 1971 on the application of social security schemes to
                                                                             employed persons, to self-employed persons and to members
1.    In order to determine whether a frontier worker is to be regarded      of their families moving within the Community, as amended
      as partially unemployed or wholly unemployed within the                and updated by Council Regulation (EC) No 118/97 of
      meaning of Article 71(1)(a) of Council Regulation (EEC)                2 December 1996 (OJ 1997 L 28, p. 1), and of Articles 6 and
      No 1408/71 of 14 June 1971 on the application of social                52 of the EC Treaty (now, after amendment, Articles 12 EC
      security schemes to employed persons, to self-employed persons         and 43 EC), — the Court (Fifth Chamber), composed of: A. La
      and to members of their families moving within the Community,          Pergola, President of the Chamber, M. Wathelet, D.A.O. Edward
      as amended and updated by Council Regulation (EEC)                     (Rapporteur), P. Jann and L. Sevón, Judges; S. Alber, Advocate
      No 2001/83 of 2 June 1983, uniform Community criteria                  General; H.A. Rühl, Principal Administrator, for the Registrar,
      must be applied. That assessment may not be made on the                has given a judgment on 15 March 2001, in which it has
      basis of criteria drawn from national law.                             ruled:
2.    If, in a Member State other than that in whose territory he
      resides, a worker remains in employment with the same                  A benefit such as the advances on maintenance payments provided
      undertaking, but part-time, while remaining available for work         for by the Austrian Bundesgesetz über die Gewährung von Vorschüss-
      on a full-time basis, he is partially unemployed and the related       en auf den Unterhalt von Kindern (Unterhaltsvorschussgesetz)
      benefits are to be provided by the competent institution of that       (Federal Austrian Law on the Grant of Advances on Maintenance for
      State. On the other hand, if a frontier worker no longer has any       Children) constitutes a family benefit within the meaning of
      link with that State and is wholly unemployed, those benefits          Article 4(1)(h) of Council Regulation (EEC) No 1408/71 of 14 June
      are to be provided by the institution of the place of residence at     1971 on the application of social security schemes to employed
      its own expense. It is for the national court to determine on the      persons, to self-employed persons and to members of their families
      basis of those criteria, in the case pending before it, the category   moving within the Community, as amended and, updated by Council
      to which the worker in question belongs.                               Regulation (EC) No 118/97 of 2 December 1996. Consequently,
                                                                             persons residing in the territory of a Member State to which the
                                                                             provisions of that regulation apply are entitled, in accordance with
(1) OJ C 48 of 20.2.1999.                                                    Article 3 of that regulation, to receive such a benefit under the
                                                                             legislation of that Member State on the same conditions as that
                                                                             State’s nationals.
                                                                             (1) OJ C 174 of 19.6.1999.
                  JUDGMENT OF THE COURT
                            (Fifth Chamber)
                           of 15 March 2001                                              ORDER OF THE COURT OF JUSTICE
in Case C-85/99 (reference for a preliminary ruling from                                               (Third Chamber)
the Oberster Gerichtshof, Austria): by Vincent
             Offermanns and Esther Offermanns (1)                                                   of 16 November 2000
(Regulation (EEC) No 1408/71 — Definition of ‘family                         in Case C-289/99 P: Schiocchet SARL v Commission of
benefits’ — National legislation providing for payment of                                     the European Communities (1)
advances on maintenance payments due by a worker to his
minor child — Condition concerning the child’s nationality)                  (Appeal — International coach and bus transport of passen-
                                                                                gers — Appeal manifestly unfounded)
                            (2001/C 186/05)
                                                                                (2001/C 186/06)
                    (Language of the case: German)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-85/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Oberster                         In Case C-289/99 P: Schiocchet SARL, having its registered
Gerichtshof, Austria, for a preliminary ruling in the proceed-               office in Beuvillers, France, represented by P. Barbier, avocat,
 ---pagebreak--- C 186/4                EN                  Official Journal of the European Communities                                       30.6.2001
Thionville, with an address for service in Luxembourg at the          2.    accordingly, declare the application admissible and send
premises of Borislav Erdeljan, 90 Route de Thionville —                     it back to the Court of First Instance for judgment (or for
Appeal against the unpublished order of the Court of First                  a stay of proceedings pending delivery of the judgment
Instance of the European Communities (First Chamber) of                     of the Court of Justice in Case C-310/99 Italy v Com-
21 May 1999 in Cases T-169/98 and T-170/98 Schiocchet v                     mission);
Commission, seeking to have that order annulled and to have
the forms of order sought by the appellant at first instance          3.    order the Commission to pay the full costs incurred by
granted, the other party to the proceedings being: Commission               the appellants in respect of matters adjunct to proceedings
of the European Communities (Agent: M. Wolfcarius, assisted                 before the Court of First Instance and the present appeal
by J.-L. Fagnart) — The Court (Third Chamber), composed of:                 proceedings, reserving the costs of the main proceedings.
C. Gulmann (Rapporteur), President of the Chamber,
J.-P. Puissochet and F. Macken, Judges; S. Alber, Advocate
General; R. Grass, Registrar, has made an order on 16 Novem-          Pleas in law and main arguments
ber 2000, the operative part of which is as follows:
                                                                      The contested order is vitiated by the following errors in law:
1.    The appeal is dismissed.
                                                                      —     infringement and misapplication of Articles 111 and 114
2.    Schiocchet SARL shall pay the costs.                                  of the Rules of Procedure of the Court of First Instance;
                                                                      —     infringement and misapplication of the provisions of the
                                                                            Rules of Procedure of the Court of First Instance with
(1) OJ C 281 of 2.10.1999.                                                  regard to calculating procedural time-limits in the event
                                                                            of publication of the contested act;
                                                                      —     failure to give reasons in relation to the legal arguments
                                                                            for the application of the rules on time-limits invoked by
                                                                            the appellant;
                                                                      —     in the alternative, error of law and failure to state reasons
                                                                            with regard to the matter of excusable error.
Appeal brought on 27 March 2001 by Confederazione
Generale dell’Industria Italiana (Confindustria), estab-
lished in Rome, Confederazione Generale Italiana del
Commercio, del Turismo, dei Servizi e delle PMI
(Confcommercio), Confartigianato, Associazione Bancaria
Italiana (ABI), established in Rome, Associazione Naziona-
le fra le Imprese Assicuratrici (ANIA), established in Milan          Reference for a preliminary ruling by the Bundesfinanzh-
(Italy), and Banco di Napoli SpA, established in Naples               of by order of that court of 1 March 2001 in the case of
(Italy) against the order made on 19 January 2001 by the              Kyocera Electronics Europe GmbH against Hauptzollamt
                  Second Chamber, Extended                                                          Krefeld
                        (Case C-141/01 P)                                                      (Case C-152/01)
                                                                                (2001/C 186/08)
                         (2001/C 186/07)
                                                                      Reference has been made to the Court of Justice of the
An appeal against the order made on 19 January 2001 by the            European Communities by order of the Bundesfinanzhof
Second Chamber extended Composition, of the Court of First            (Federal Finance Court) of 1 March 2001, received at the Court
Instance of the European Communities in Case T-126/00                 Registry on 9 April 2001, for a preliminary ruling in the case
between Confederazione Generale dell’Industria Italiana (Con-         of Kyocera Electronics Europe GmbH v Hauptzollamt Krefeld
findustria) and Others and the Commission of the European             on the following questions:
Communities was brought before the Court of Justice of the
European Communities on 27 March 2001 by Confederazione               1.    Must Article 3(2)(a) of Commission Regulation (EEC)
Generale dell’Industria Italiana (Confindustria) and the other              No 1495/80 (1) of 11 June 1980 implementing certain
abovementioned companies.                                                   provisions of Articles 1, 3 and 8 of Council Regulation
                                                                            (EEC) No 1224/80 (2) on the valuation of goods for
                                                                            customs purposes as amended by Regulation (EEC)
The appellant claims that the Court should:                                 No 220/85 (3) be interpreted as meaning that payments
                                                                            of interest are distinct from the price of the goods if at
1.    set aside the order of the Court of First Instance of the             the material time, namely the acceptance of the customs
      European Communities of 19 January 2001;                              declaration, only the invoice for the net price of the goods