title: Case T-415/06 P: Appeal brought on 29 December 2006 by De Smedt against the judgment of the Civil Service Tribunal delivered on 19 October 2006 in Case F-59/05, De Smedt v Commission

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/43

         Appeal brought on 29 December 2006 by De Smedt against the judgment of the Civil Service Tribunal delivered on 19 October 2006 in Case F-59/05, De Smedt v Commission
   (Case T-415/06 P)
   (2007/C 42/75)
   Language of the case: French
   Parties

      Appellant: Elisabeth de Smedt (Wezembeek-Oppem, Belgium) (represented by L. Vogel and R. Kechiche, lawyers)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought by the appellant

               —

               annulment in full of the judgment under appeal, delivered in 19 October 2006 by the Second Chamber of the Civil Service Tribunal, notified by registered letter of 19 October 2006, by which the action brought by the appellant on 8 July 2005 was dismissed;

               —

               grant to the appellant the forms of order sought in the action brought by her on 8 July 2005;

               —

               order the defendant and the intervener to pay the costs of the action pursuant to Article 87(2) of the Rules of Procedure, including the expenses necessarily incurred for the purposes of the proceedings, and, in particular, the costs of having an address for service, travel and accommodation expenses and lawyers' fees, pursuant to Article 91(b) of the Rules of Procedure.

         Pleas in law and main arguments
   By judgment of 19 October 2006, the annulment of which is sought by this appeal, the Civil Service Tribunal dismissed the action brought by the appellant seeking, first, annulment of the decision of the Commission of 21 March 2005 fixing the classification and remuneration of the applicant, who was previously an auxiliary agent recruited as a contractual agent, and, secondly, payment of damages.
   In support of her application for the annulment of that judgment, the appellant puts forward two grounds of appeal, the first of which is based on infringement of Article 80(3) of the Conditions of Employment of other servants of the Communities (CEOS) (1), together with a manifest error of assessment. The appellant argues that, in rejecting the first plea in law under her original application on the ground that the Commission was obliged to follow a timescale laid down in terms of Regulation No 723/2004 (2), for the replacement of the former temporary staff status by the new contractual agent status, the Civil Service Tribunal allowed the Commission to disregard all preliminary procedures relating to the recruitment of contractual agents, in breach of Article 80(3) of the CEOS.
   The second ground of appeal is based on infringement of the principle of non-discrimination, a failure to state adequate reasons and a failure to address the appellant's written pleadings in rejecting the second plea in law of her initial application, which was founded on the discriminatory situation in which the appellant was required to work, by comparison with other persons carrying out duties identical to her own, in the same department of the Commission. The appellant objects that the Civil Service Tribunal failed to provide a satisfactory response to her submissions in that regard and did no more than reject the plea, using an abstract form of words.

      (1)  The Conditions of Employment of Other Servants of the Communities were laid down under Article 3 of Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the CEOS (OJ 1968 L 6, p. 1).

      (2)  Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).


title: Case T-271/05: Action brought on 8 July 2005 by Miriam Arana de la Cal against the Commission of the European Communities

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/31

         Action brought on 8 July 2005 by Miriam Arana de la Cal against the Commission of the European Communities
   (Case T-271/05)
   (2005/C 229/67)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 July 2005 by Miriam Arana de la Cal, resident in Saint-Gilles (Belgium), represented Lucas Vogel, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision adopted by the Authority Responsible for Concluding Contracts of Employment on 21 March 2005 by which it dismissed the applicant's application of 30 November 2004, reclassified as a claim, against the decision fixing the grade and remuneration determined for the applicant in her capacity as contract staff under the terms of the contract which entered into effect on 16 September 2004;

               —

               in so far as necessary, annul also the original decision, by which the grade and remuneration were fixed for the applicant in her capacity as a contract staff under the terms of the contract which entered into effect on 16 September 2004;

               —

               order the defendant to pay EUR 25 000 by way of damages, subject to an increase or decrease or further specifications;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are identical to those put forward in Case T-253/05 Fernandez Tunon v Commission.


title: Case C-145/10: Judgment of the Court (Third Chamber) of 1 December 2011 (reference for a preliminary ruling from the Handelsgericht Wien — Austria) — Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG (Jurisdiction in civil matters — Regulation (EC) No 44/2001 — Article 6(1) — More than one defendant — Directive 93/98/EEC — Article 6 — Protection of photographs — Directive 2001/29/EC — Article 2 — Reproduction — Use of a portrait photograph as a template to establish a photo-fit — Article 5(3)(d) — Exceptions and limitations as regards quotations — Article 5(3)(e) — Exceptions and limitations for the purposes of public security — Article 5(5))

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/7

         Judgment of the Court (Third Chamber) of 1 December 2011 (reference for a preliminary ruling from the Handelsgericht Wien — Austria) — Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG
   (Case C-145/10) (1)

   (Jurisdiction in civil matters - Regulation (EC) No 44/2001 - Article 6(1) - More than one defendant - Directive 93/98/EEC - Article 6 - Protection of photographs - Directive 2001/29/EC - Article 2 - Reproduction - Use of a portrait photograph as a template to establish a photo-fit - Article 5(3)(d) - Exceptions and limitations as regards quotations - Article 5(3)(e) - Exceptions and limitations for the purposes of public security - Article 5(5))
   2012/C 32/11
   Language of the case: German

      Referring court

   Handelsgericht Wien

      Parties to the main proceedings

      Applicant: Eva-Maria Painer

      Defendants: Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG

      Re:

   Reference for a preliminary ruling — Handelsgericht Wien — Interpretation of Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), of Articles 1(1), 5(3)(d) and (e) and 5(5) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Publication of photographs in several periodicals, without the authorisation of the author and without the correct citation — Jurisdiction of a court to judge several actions brought for the same infringement of copyright but against different defendants, and based on legal grounds of two Member States which are identical in substance — Infringement of the copyright justified in the interests of public security

      Operative part of the judgment

               1.

               Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.

               2.

               Article 6 of Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights must be interpreted as meaning that a portrait photograph can, under that provision, be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph. Since it has been determined that the portrait photograph in question is a work, its protection is not inferior to that enjoyed by any other work, including other photographic works.

               3.

               Article 5(3)(e) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, read in the light of Article 5(5) of that directive, must be interpreted as meaning that the media, such as newspaper publishers, may not use, of their own volition, a work protected by copyright by invoking an objective of public security. However, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. It should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.

               4.

               Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as not precluding its application where a press report quoting a work or other protected subject-matter is not a literary work protected by copyright.

               5.

               Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However, if, in applying Article 5(3)(e) of Directive 2001/29, that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.

      (1)  OJ C 148, 5.6.2010.


title: Judgment of the Court (Sixth Chamber) of 19 September 2002 in Case C-221/01: Commission of the European Communities v Kingdom of Belgium (Directive 97/33/EC — Telecommunications — Interconnection of networks — Interoperability of services)

text:
C 274/14                EN                       Official Journal of the European Communities                                             9.11.2002
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                         (Sixth Chamber)                                                                (Sixth Chamber)
                      of 19 September 2002                                                         of 19 September 2002
in Case C-433/00 (Reference for a preliminary ruling                        in Case C-221/01: Commission of the European Communi-
from the Landgericht Köln): Aventis Pharma Deutschland                                        ties v Kingdom of Belgium ( 1)
GmbH v Kohlpharma GmbH, MTK Pharma Vertriebs-
                             GmbH (1)
                                                                            (Directive 97/33/EC — Telecommunications — Intercon-
                                                                                nection of networks — Interoperability of services)
(Trade mark rights — Medicinal products — Central market-
               ing authorisation — Repackaging)
                                                                                (2002/C 274/23)
                          (2002/C 274/22)
                                                                                (Language of the case: French)
                   (Language of the case: German)
                                                                            (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-221/01, Commission of the European Communities
                                                                            (Agent: H. van Lier) v Kingdom of Belgium (Agent: initially
In Case C-433/00: Reference to the Court under Article 234                  F. van de Craen, and, subsequently, A. Snoecx): Application
EC by the Landgericht Köln (Germany) for a preliminary ruling               for a declaration that, by failing to adopt all the laws,
in the proceedings pending before that court between Aventis                regulations and administrative provisions necessary to comply
Pharma Deutschland GmbH and Kohlpharma GmbH, MTK                            with Directive 97/33/EC of the European Parliament and
Pharma Vertriebs-GmbH, on the interpretation of Council                     of the Council of 30 June 1997 on interconnection in
Regulation (EEC) No 2309/93 of 22 July 1993 laying down                     Telecommunications with regard to ensuring universal service
Community procedures for the authorisation and supervision                  and interoperability through application of the principles of
of medicinal products for human and veterinary use and                      Open Network Provision (ONP) (OJ 1997 L 199, p. 32) and,
establishing a European Agency for the Evaluation of Medicinal              in particular, with Articles 7(5), 9(3) and 14(1) and (2) thereof,
Products (OJ 1993 L 214, p. 1) and of the rules of Community                the Kingdom of Belgium has failed to fulfil its obligations
law on the free movement of medicinal products, the Court                   under that directive, the Court (Sixth Chamber), composed of:
(Sixth Chamber), composed of: F. Macken, President of the                   F. Macken, President of the Chamber, N. Colneric, C. Gulmann
Chamber, N. Colneric, C. Gulmann (Rapporteur), J.-P. Puisso-                (Rapporteur), R. Schintgen and V. Skouris, Judges; F. G. Jacobs,
chet and V. Skouris, Judges; F. G. Jacobs, Advocate General;                Advocate General; R. Grass, Registrar, has given a judgment
H. A. Rühl, Principal Administrator, for the Registrar, has                 on 19 September 2002, in which it:
given a judgment on 19 September 2002, in which it has
ruled:
                                                                            1.    Declares that, by failing to adopt all the laws, regulations and
                                                                                administrative provisions necessary to comply with Articles 7(5)
Council Regulation (EEC) No 2309/93 of 22 July 1993 laying                        and 9(3) of Directive 97/33/EC of the European Parliament
down Community procedures for the authorisation and supervision of                and of the Council of 30 June 1997 on interconnection in
medicinal products for human and veterinary use and establishing a                Telecommunications with regard to ensuring universal service
European Agency for the Evaluation of Medicinal Products precludes                and interoperability through application of the principles of
a medicinal product which is the subject of two separate central                  Open Network Provision (ONP), as well as Article 14(1) in
marketing authorisations, one for packs of five items and the other               conjunction with Article 12(4) thereof, the Kingdom of Belgium
for packs of 10 items, from being marketed in a package consisting                has failed to fulfil its obligations under that directive;
of two packs of five items which have been joined together and
relabelled.                                                                 2.    Orders the Kingdom of Belgium to pay the costs.
( 1) OJ C 45 of 10.2.2001.                                                  (1 ) OJ C 227 of 11.8.2001.


title: Case C-453/01: Action brought on 22 November 2001 by the Commission of the European Communities against the Hellenic Republic

text:
C 17/10                EN                    Official Journal of the European Communities                                      19.1.2002
It is not disputed by the Hellenic Republic that it must adopt          It is not disputed by the Hellenic Republic that it must adopt
measures to comply with the abovementioned directive.                   measures to comply with the abovementioned directive.
The Commission records that until now the Hellenic Republic             The Commission records that until now the Hellenic Republic
has not adopted the appropriate measures for the full incorpor-         has not adopted the appropriate measures for the full incorpor-
ation of the directive at issue into Greek law.                         ation of the directive at issue into Greek law.
(1) OJ L 50, 26.2.1999, p. 26.                                          (1) OJ L 209, 7.8.1999, p. 22.
Action brought on 21 November 2001 by the Com-                          Action brought on 22 November 2001 by the Com-
mission of the European Communities against the Hellen-                 mission of the European Communities against the Hellen-
                            ic Republic                                                               ic Republic
                         (Case C-451/01)                                                           (Case C-453/01)
                          (2002/C 17/16)                                                            (2002/C 17/17)
                                                                        An action against the Hellenic Republic was brought before
An action against the Hellenic Republic was brought before
                                                                        the Court of Justice of the European Communities on 22 No-
the Court of Justice of the European Communities on 21 No-
                                                                        vember 2001 by the Commission of the European Communi-
vember 2001 by the Commission of the European Communi-
                                                                        ties, represented by Maria Kondou-Durande, Legal Adviser.
ties, represented by Maria Kondou-Durande, Legal Adviser.
                                                                        The Commission claims that the Court should:
The Commission claims that the Court should:
                                                                        —      declare that, by not adopting within the time-limit laid
—      declare that, by not adopting within the time-limit laid                down the laws, regulations and administrative provisions
       down the laws, regulations and administrative provisions                necessary to comply with Council Directive 98/58/EC (1)
       necessary to comply with Commission Directive                           of 20 July 1998 concerning the protection of animals
       1999/78/EC (1) of 27 July 1999 amending Directive                       kept for farming purposes, the Hellenic Republic has
       95/10/EC, the Hellenic Republic has failed to fulfil its                failed to fulfil its obligations under the Treaty and that
       obligations under the Treaty and that directive;                        directive;
—      order the Hellenic Republic to pay the costs.                    —      order the Hellenic Republic to pay the costs.
Pleas in law and main arguments                                         Pleas in law and main arguments
In accordance with the third paragraph of Article 249 EC,               In accordance with the third paragraph of Article 249 EC,
directives are binding, as to the result to be achieved, upon           directives are binding, as to the result to be achieved, upon
each Member State to which they are addressed.                          each Member State to which they are addressed.
Under the first paragraph of Article 10 EC, Member States are           Under the first paragraph of Article 10 EC, Member States are
to take all appropriate measures, whether general or particular,        to take all appropriate measures, whether general or particular,
to ensure fulfilment of the obligations arising out of the Treaty       to ensure fulfilment of the obligations arising out of the Treaty
or resulting from action taken by the institutions of the               or resulting from action taken by the institutions of the
Community.                                                              Community.
 ---pagebreak--- 19.1.2002              EN                     Official Journal of the European Communities                                       C 17/11
It is not disputed by the Hellenic Republic that it must adopt           PCBs to be removed or decontaminated, the plan referred
measures to comply with the abovementioned directive.                    to in Article 11 must be drawn up and notified to the
                                                                         Commission.
The Commission records that until now the Hellenic Republic
has not adopted the appropriate measures for the full incorpor-          (1) OJ L 243, 24.9.1996, p. 31.
ation of the directive at issue into Greek law.                          (2) See page 8 of this Official Journal.
(1) OJ L 221, 8.8.1998, p. 23.
                                                                         Appeal brought on 28 November 2001 by Andreas
                                                                         Tessas and Polixeni Tessa against the order made on
                                                                         11 September 2001 by the Court of First Instance of
Action brought on 22 November 2001 by the Com-                           the European Communities (Fourth Chamber) in Case
mission of the European Communities against the Federal                  T-270/99 Andreas Tessas and Polixeni Tessa against
                      Republic of Germany                                Council of the European Union, supported by the Hellenic
                                                                                Republic
                         (Case C-454/01)
                                                                                (Case C-461/01 P)
                          (2002/C 17/18)
                                                                                (2002/C 17/19)
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-             An appeal against the order made on 11 September 2001 by
ties on 22 November 2001 by the Commission of the                        the Court of First Instance of the European Communities
European Communities, represented by Götz zur Hausen,                    (Fourth Chamber) in Case T-270/99 Andreas Tessas and
Legal Adviser, acting as Agent, with an address for service in           Polixeni Tessa against Council of the European Union, support-
Luxembourg at the office of Luis Escobar Guerrero, a Member              ed by the Hellenic Republic, was brought before the Court of
of the Commission’s Legal Service, Wagner Centre, Kirchberg.             Justice of the European Communities on 28 November 2001
                                                                         by Andreas Tessas and Polixeni Tessa, represented by Andreas
The Commission claims that the Court should:                             Tessas, of the Larissa Bar.
1.    Declare that, by failing to draw up within the prescribed          The appellants claim that the Court should:
      period the plan required by the first indent of Article 11(1)
      of Council Directive 96/59/EC (1) of 16 September 1996             —     set aside in its entirety the order of the Court of First
      on the disposal of polychlorinated biphenyls and poly-                   Instance of 11 September 2001 in Case T-270/99 and
      chlorinated terphenyls (PCB/PCT), or in any event by                     grant the form of order sought at first instance;
      failing to notify such plan to the Commission, the Federal
      Republic of Germany has failed to fulfil its obligations           —     order the defendant to pay the costs.
      under the EC Treaty;
2.    Order the Federal Republic of Germany to pay the costs.            Grounds of appeal and main arguments
                                                                         —     Incorrect definition of the recipients of the Council
Pleas in law and main arguments                                                decision contested at first instance: the Court of First
                                                                               Instance wrongly held that the decision at issue was not
                                                                               of direct and individual concern to the appellants.
The pleas in law and main arguments are the same as in Case
C-435/01 (2); the prescribed period for the drawing up and               —     Infringement of the right to a fair hearing.
notification of the plan expired on 16 September 1999. Even
if the Federal Republic of Germany has only a relatively small           —     Infringement of the provisions of the Rules of Procedure
amount of equipment containing PCBs and small amounts of                       concerning costs.


title: Case T-249/14: Judgment of the General Court of 25 November 2015 — Masafi v OHIM — Hd1 (masafi) (Community trade mark — Opposition proceedings — Application for Community figurative mark masafi — Earlier national word mark masafi — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               18.1.2016

               EN

               Official Journal of the European Union

               C 16/32

         Judgment of the General Court of 25 November 2015 — Masafi v OHIM — Hd1 (masafi)
   (Case T-249/14) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark masafi - Earlier national word mark masafi - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 016/39)
   Language of the case: English

      Parties

      Applicant: Masafi Co. LLC (Dubai, United Arab Emirates) (represented by: G. Hinarejos Mulliez, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Hd1 Ltd (Huddersfield, United Kingdom)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 17 February 2014 (Case R 1131/2013-4), concerning opposition proceedings between Hd1 Limited and Masafi Co. LLC.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Masafi Co. LLC to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 235, 21.7.2014.


title: Case T-93/13: Action brought on 15 February 2013 — United Kingdom v ECB

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/38

         Action brought on 15 February 2013 — United Kingdom v ECB
   (Case T-93/13)
   2013/C 114/61
   Language of the case: English

      Parties

      Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: K. Beal, QC, and E. Jenkinson, agent)

      Defendant: European Central Bank

      Form of order sought

   The applicant claims that the Court should:

               —

               Partially annul the Decision of the European Central Bank of 11 December 2012 amending decision ECB/2007/7 concerning the terms and conditions of TARGET2-ECB (Decision ECB/2012/31) (OJ 2013 L 13, p. 8.);

               —

               Partially annul the Guideline of the European Central Bank of 5 December 2012 on a Trans-European Automated Real-time Gross settlement Express Transfer system (TARGET2) (Guideline ECB/2012/27) (OJ 2013 L 30, p. 1);

               —

               Order the defendant to pay the costs of these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the ECB lacked competence to publish the contested acts, either at all or alternatively without recourse to the promulgation of a legislative instrument such as a Regulation, adopted either by the Council or alternatively by the ECB itself;

               2.

               Second plea in law, alleging that contested acts either de jure or de facto impose a residence requirement on Central Clearing Counterparties (‘CCPs’) that wish to undertake clearing or settlement operations in the euro currency whose daily trades exceed a certain volume. Further or alternatively they restrict or impede the nature and/or extent of services or capital which may be supplied to CCPs located in non-euro area Member States. The contested acts infringe all or any of Articles 48, 56 and/or 63 TFEU, in that:

                           —

                           CCPs established in non-euro area Member States, such as the United Kingdom, will be obliged to relocate their centres of administration and control to Member States which are members of the Eurosystem. They will also be obliged to re-incorporate as legal persons recognised in the domestic law of another Member State;

                           —

                           In the event that such CCPs do not relocate as required, they will be precluded from access to the financial markets in the Eurosystem Member States, either on the same terms as CCPs established in those territories, or at all;

                           —

                           Such non-resident CCPs will not be entitled to facilities offered by the ECB or the National Central Banks (‘NCBs’) of the Eurosystem, either on the same terms or at all;

                           —

                           As a result, the ability of such CCPs to offer clearing or settlement services in the euro currency to customers in the Union will be restricted or even prohibited in its entirety.

               3.

               Third plea in law, alleging that the contested acts infringe Articles 101 and/or 102 TFEU, read in conjunction with Article 106 TFEU and Article 13 TEU, since:

                           —

                           They effectively require all clearing operations proceeding in the euro currency exceeding a certain level to be conducted by CCPs established in a euro area Member State;

                           —

                           They effectively direct the ECB and/or euro-area and/or NCBs not to supply euro currency reserves to CCPs established in non-euro area Member States if they exceed the thresholds set in the decision.

               4.

               Fourth plea in law, alleging that the requirement for CCPs established in non-euro area Member States to adopt a different corporate personality and domicile is direct or indirect discrimination on grounds of nationality. It also offends the general EU principle of equality, since CCPs established in different Member States are subject to disparate treatment without any objective justification for the same.

               5.

               Fifth plea in law, alleging that the contested acts infringe relevant provisions of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4July 2012 on OTC derivatives, central counterparties and trade repositories (OJ 2012 L 201, p. 1).

               6.

               Sixth plea in law, alleging that contested acts infringe all or any of Articles II, XI, XVI and XVII of the General Agreement on Trade in Services (GATS).

               7.

               Seventh plea in law, alleging that, without assuming the burden of establishing that a public interest justification for such restrictions is not available (the onus being on the ECB to advance its case for a derogation if it so chooses), the United Kingdom contends that any public policy justification advanced by the ECB would not satisfy the requirement of proportionality, since less restrictive means of ensuring control over financial institutions resident within the Union but outside the euro area are available.


title: Case C-545/07: Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria)) — Apis-Hristovich EOOD v Lakorda AD (Directive 96/9/EC — Legal protection of databases — Sui generis right — Obtaining, verification or presentation of the contents of a database — Extraction — Substantial part of the contents of a database — Database containing official legal data)

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/7

         Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria)) — Apis-Hristovich EOOD v Lakorda AD
   (Case C-545/07) (1)

   (Directive 96/9/EC - Legal protection of databases - Sui generis right - Obtaining, verification or presentation of the contents of a database - Extraction - Substantial part of the contents of a database - Database containing official legal data)
   2009/C 102/10
   Language of the case: Bulgarian

      Referring court

   Sofiyski gradski sad

      Parties to the main proceedings

      Applicant: Apis-Hristovich EOOD

      Defendant: Lakorda AD

      Re:

   Reference for a preliminary ruling — Sofia City Court — Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20) — Concepts of extraction and utilisation — Legal databases relating to legislation and case-law in a Member State

      Operative part of the judgment

               1.

               The delimitation of the concepts of ‘permanent transfer’ and ‘temporary transfer’ in Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases is based on the criterion of the length of time during which materials extracted from a protected database are stored in a medium other than that database. The time at which there is an extraction, within the meaning of Article 7, from a protected database, accessible electronically, is when the materials which are the subject of the act of transfer are stored in a medium other than that database. The concept of extraction is independent of the objective pursued by the perpetrator of the act at issue, of any modifications he may make to the contents of the materials thus transferred, and of any differences in the structural organisation of the databases concerned.
               The fact that the physical and technical characteristics present in the contents of a protected database made by a particular person also appear in the contents of a database made by another person may be interpreted as evidence of extraction within the meaning of Article 7 of Directive 96/9, unless that coincidence can be explained by factors other than a transfer between the two databases concerned. The fact that materials obtained by the maker of a database from sources not accessible to the public also appear in a database made by another person is not sufficient, in itself, to prove the existence of such extraction but can constitute circumstantial evidence thereof.
               The nature of the computer program used to manage two electronic databases is not a factor in assessing the existence of extraction within the meaning of Article 7 of Directive 96/9.

               2.

               Article 7 of Directive 96/9 must be interpreted as meaning that, where there is a body of materials composed of separate modules, the volume of the materials allegedly extracted and/or re-utilised from one of those modules must, in order to assess whether there has been extraction and/or re-utilisation of a substantial part, evaluated quantitatively, of the contents of a database within the meaning of that article, be compared with the total contents of that module, if the latter constitutes, in itself, a database which fulfils the conditions for protection by the sui generis right. Otherwise, and in so far as the body of materials constitutes a database protected by that right, the comparison must be made between the volume of the materials allegedly extracted and/or re-utilised from the various modules of that database and its total contents.
               The fact that the materials allegedly extracted and/or re-utilised from a database protected by the sui generis right were obtained by the maker of that database from sources not accessible to the public may, according to the amount of human, technical and/or financial resources deployed by the maker to collect the materials at issue from those sources, affect the classification of those materials as a substantial part, evaluated qualitatively, of the contents of the database concerned, within the meaning of Article 7 of Directive 96/9.
               The fact that part of the materials contained in a database are official and accessible to the public does not relieve the national court of an obligation, in assessing whether there has been extraction and/or re-utilisation of a substantial part of the contents of that database, to verify whether the materials allegedly extracted and/or re-utilised from that database constitute a substantial part, evaluated quantitatively, of its contents or, as the case may be, whether they constitute a substantial part, evaluated qualitatively, of the database inasmuch as they represent, in terms of the obtaining, verification and presentation thereof, a substantial human, technical or financial investment.

      (1)  OJ C 51, 23.2.2008.


title: Case C-423/09: Reference for a preliminary ruling from the Hoge Raad der Nederlanden, lodged on 29 October 2009 — Staatssecretaris van Financiën v X

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/21

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden, lodged on 29 October 2009 — Staatssecretaris van Financiën v X
   (Case C-423/09)
   2010/C 24/36
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: Staatssecretaris van Financiën

      Respondent: X

      Question referred

   What criteria are to be applied in order to determine whether vegetables (garlic bulbs) which have been dried to some degree, but from which not all, or not almost all, of the moisture has been removed, and which are imported in a chilled state, are to be classified under tariff subheading 0703 20 00 of the CN or under tariff subheading 0712 90 90 of the CN?


title: Judgment of the Court of First Instance of 20 February 2002 in Case T-117/01: Marcos Roman Parra v Commission of the European Communities (Officials — Promotion — Complaint through official channels — Implied rejection — Reasons)

text:
1.6.2002                   EN                    Official Journal of the European Communities                                          C 131/17
2.    The remainder of the application is dismissed.                        2.   Orders the Commission to pay the costs.
3.    The Commission is ordered to pay the costs.
                                                                            (1) OJ C 227 of 11.8.2001.
In Cases T-357/00, T-361/00 and T-363/00:
1.    The applications are dismissed.
2.    The parties shall bear their own costs.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
(1) OJ C 61 of 24.2.2001.
                                                                                of 25 January 2002
                                                                            in Case T-207/00: Nuno Antas de Campos v European
                                                                                Parliament (1)
                                                                            (Officials — Mobility scheme of the European Parliament
                                                                                — Inadmissibility)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (2002/C 131/33)
                         of 20 February 2002
                                                                                (Language of the case: Portuguese)
in Case T-117/01: Marcos Roman Parra v Commission of
                   the European Communities (1)
(Officials — Promotion — Complaint through official                         In Case T-207/00: Nuno Antas de Campos, an official of
            channels — Implied rejection — Reasons)                         the European Parliament, residing in Lisbon, represented by
                                                                            C. Botelho Moniz, lawyer, with an address for service in
                                                                            Luxembourg, against European Parliament (Agents: R. Da Silva
                             (2002/C 131/32)                                Passos and J.F. De Wachter) — application for annulment of
                                                                            the decision communicated to him by a letter of 30 March
                                                                            2000 by the Directorate General of Personnel, according to
                      (Language of the case: French)                        which he is subject to the mobility scheme for 2000 — the
                                                                            Court of First Instance (Second Chamber), composed of
                                                                            R.M. Moura Ramos, President, J. Pirrung and A.W.H. Meij,
                                                                            Judges; H. Jung, Registrar, made an order on 25 January 2002,
                                                                            the operative part of which is as follows:
In Case T-117/01: Marcos Roman Parra, an official of the
Commission of the European Communities, residing in Zaven-
tem (Belgium), represented by J.-N. Louis and V. Peere,                     1.   The order is dismissed as inadmissible.
avocats, with an address for service in Luxembourg, against
Commission of the European Communities (Agents: C. Berar-
dis-Kayser) — application for annulment of the Commission’s                 2.   The European Parliament shall bear its own costs and pay one
decision not to promote him to Grade A 6 in the course of the                    half of those incurred by the applicant. The applicant shall bear
2000 promotion procedure — the Court of First Instance                           one half of his own costs.
(Single Judge: Mr H. Legal); Blanca Pastor, Principal Adminis-
trator, for the Registrar, gave a judgment on 20 February
                                                                            3.   The parties shall bear their own costs incurred in the interlocu-
2002, in which it:
                                                                                tory proceedings.
1.    Annuls the decision of the Commission not to promote
      Mr Roman Parra to Grade A 6 in the course of the 2000                 (1) OJ C 302 21.10.2000.
      promotion procedure, as evidenced by the publication in
      Administrative Notices No 65-2000 of 14 August 2000 of
      the list of officials promoted to that Grade.


title: Reference for a preliminary ruling from the Schleswig-Holsteinisches Verwaltungsgericht by order of that court of 18 October 1996 in the case of Hilmar Kellinghusen v. Amt für Land- und Wasserwirtschaft Kiel (Case C-36/97)

text:
22. 3 . 97               I EN |                  Official Journal of the European Communities                                     No C 94/9
dismissal. The award of retirement pension points,                                authorities in the Member States from charging
including those awarded where the worker concerned has                            applicants administrative fees for processing their
been dismissed, constitutes a condition of employment                             applications for support payments, if those
agreed between the employer and the worker by virtue of                           administrative fees correspond to the rates which are
the fact that they are bound by collective agreements. The                        otherwise usual in national law and are so low that
fact that, following his dismissal, a frontier worker                             they are not capable of deterring applicants from
receives unemployment benefit in another Member State                             applying for support payments ?
pursuant to Article 71 of Regulation ( EEC) No 1408/
71 (2) cannot constitute, for the employer ( that is to say,                ( b) If Question ( a ) is answered in the affirmative :
the supplementary retirement pension institution to which
he is affiliated and which carries out his contractual
obligations in the matter), a reason for depriving his                            Does Article 15 ( 3 ) of the said Council Regulation
former employee of the contractual advantages agreed.                             infringe higher-ranking Community law, in particular
Although the discrimination in question results from                              the principle of cooperation in good faith under
collective agreements and not from legislation, it                                Article 5 of the EC Treaty, the principle of
nevertheless represents an infringement of Community law                          proportionality under the third paragraph of Article 3 b
by the defendant State, since that State has not only                             of the EC Treaty, and the principle of subsidiarity
accepted the existence of such discrimination within                              under the second paragraph of Article 3b of the EC
supplementary retirement pension schemes but has                                  Treaty ?
approved those agreements and made them generally
compulsory;, by Article L 731-5 of the French Social
Security Code, membership of a supplementary retirement
pension scheme is compulsory for all employed persons
subject to a compulsory old-age pension scheme . Although
the management of supplementary retirement pension                          Reference for a preliminary ruling from the Schleswig
schemes is in principle left to the social partners, such                   Holsteinisches Verwaltungsgericht by order of that court
schemes are in fact based on agreements between the                         of 18 October 1996 in the case of Ernst-Detlef Ketelsen v.
social partners and the public authorities, which intervene                           Amt für Land- und Wasserwirtschaft Husum
actively in them, especially as regards the maintenance of
financial equilibrium.                                                                                ( Case C-37/97)
                                                                                ( 97/C 94/18 )
The fact that the French supplementary retirement pension
schemes 'validate' periods of unemployment in France for
which benefit is paid to frontier workers who have lost                     Reference has been made to the Court of Justice of the
their job in another Member State does not eliminate or                     European Communities by an order of the First Chamber
make up for the discrimination applied, to their detriment,                 of the Schleswig-Holsteinisches Verwaltungsgericht
to frontier workers residing in another Member State .                      ( Schleswig-Holstein Administrative Court) of 18 October
                                                                            1996, which was received at the Court Registry on
(') Official Journal, English Special Edition 1968 ( II ), p. 475 .         27 January 1997, for a peliminary ruling in the case of
( 2 ) Official Journal , English Special Edition 1971 ( II ), p. 416 .      Ernst-Detlef Ketelsen v. Amt fur Land- und Wasserwirt
                                                                            schaft Husum on the following questions :
                                                                            ( a ) Is Article 30a of Council Regulation ( EEC ) No 2066/
                                                                                92 of 30 June 1992 amending Regulation ( EEC )
Reference for a preliminary ruling from the Schleswig                            No 805/68 on the common organization of the market
Holsteinisches Verwaltungsgericht by order of that court                          in beef and veal and repealing Regulation ( EEC )
of 18 October 1996 in the case of Hilmar Kellinghusen v.                          No 468/87 laying down general rules applying to the
             Amt fur Land- und Wasserwirtschaft Kiel                              special premium for beef producers and Regulation
                             ( Case C-36/97)
                                                                                ( EEC ) No 1357/80 introducing a system of premiums
                                                                                for maintaining suckler cows ( OJ No L 215 , 30 . 7.
                               ( 97/C 94/17)                                      1992, p. 49 ) to be interpreted as prohibiting the
                                                                                authorities in the Member States from charging
Reference has been made to the Court of Justice of                                applicants administrative fees for processing their
the European Communities by an order of the First                                 applications for aid, if those administrative fees
Chamber of the Schleswig-Holsteinisches Verwaltungsge                            correspond to the rates which are otherwise usual in
richt ( Schleswig-Holstein Administrative Court) of                               national law and are so low that they are not capable
18 October 1996, which was received at the Court                                  of deterring applicants from applying for aid ?
Registry on 27 January 1997, for a preliminary ruling in
the case of Hilmar Kellinghusen v. Amt fur Land- und                        ( b ) If Question ( a ) is answered in the affirmative :
Wasserwirtschaft Kiel on the following questions :
( a ) Is Article 15 ( 3 ) of Council Regulation ( EEC ) No 1765/                  Does Article 30a of the said Council Regulation
       92 of 30 June 1992 establishing a support system for                       infringe higher-ranking Community law, in particular
       producers of certain arable crops ( OJ No L 181 , 1 . 7.                   the principle of cooperation in good faith under
       1992, p. 12 ) to be interpreted as prohibiting the                         Article 5 of the EC Treaty, the principle of


title: Case T-329/13: Action brought on 4 June 2013 — Khatzithoma and Khatzithoma v Commission and European Central Bank

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/33

         Action brought on 4 June 2013 — Khatzithoma and Khatzithoma v Commission and European Central Bank
   (Case T-329/13)
   2013/C 252/56
   Language of the case: Greek

      Parties

      Applicants: Petros Khatzithoma (Nicosia, Cyprus) and Elenitsa Khatzithoma (Nicosia, Cyprus) (represented by: E. Εfstathiou, K. Εfstathiou and K. Liasidou, lawyers)

      Defendants: European Central Bank, European Commission

      Form of order sought

   The applicants claims that the General Court should:

               —

               declare the action to be admissible and well founded;

               —

               annul the decision of the Eurogroup of 25 March 2013, which took its final form through the decision of the Governor of the Central Bank of Cyprus as the representative and/or agent of the European System of Central Banks dated 29 Μarch 2013, K.D.P [Regulatory Administrative Act] 104/2013, whereby the ‘sale of certain operations’ of Cyprus Popular Bank Public Co Ltd was decided and which in essence constitutes a joint decision of not only the European Central Bank but also of the European Commission;

               —

               in addition, declare that the abovementioned decision of the Eurogroup in essence constitutes a decision of the European Central Bank and/or of the European Commission jointly irrespective of the shape or form in which it was dressed;

               —

               order the European Central Bank and/or the European Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   In support of the action the applicants put forward four pleas in law.

               1.

               By the first plea for annulment the applicants maintain that the contested decision is null and void, since the decision exceeds the powers conferred by the Treaty on European Union on not only the European Central Bank but also the European Commission, that is to say, it is an act which was ultra vires of those two institutions.

               2.

               By the second plea for annulment, the applicants maintain that the contested decision is in breach of the right to respect for property, which is protected by Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Article 14 of the European Convention for the Protection of Human Rights, as confirmed by the Charter of Fundamental Rights of the European Union.

               3.

               By the third plea for annulment, the applicants maintain that the contested decision is manifestly unfounded and lacking any legal basis and is contrary to the principle of proportionality.

               4.

               By the fourth plea for annulment, the applicants maintain that the contested decision is also contrary to the generally recognised legal principles which have been disseminated in European Union law and in particular to the principle that no-one may rely on his own failures to obtain an advantage and/or to justify wrongful and/or unlawful conduct.


title: Case C-41/14: Judgment of the Court (Fourth Chamber) of 26 February 2015 (request for a preliminary ruling from the Cour de cassation — France) — Christie’s France SNC v Syndicat national des antiquaires (Reference for a preliminary ruling — Directive 2001/84/EC — Article 1 — Intellectual property — Sale at auction of original works of art — Resale right for the benefit of the author of an original work of art — Person liable for the resale royalty — Buyer or seller — Derogation by agreement)

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/19

         Judgment of the Court (Fourth Chamber) of 26 February 2015 (request for a preliminary ruling from the Cour de cassation — France) — Christie’s France SNC v Syndicat national des antiquaires
   (Case C-41/14) (1)

   ((Reference for a preliminary ruling - Directive 2001/84/EC - Article 1 - Intellectual property - Sale at auction of original works of art - Resale right for the benefit of the author of an original work of art - Person liable for the resale royalty - Buyer or seller - Derogation by agreement))
   (2015/C 138/24)
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Appellant: Christie’s France SNC

      Respondent: Syndicat national des antiquaires

      Operative part of the judgment

   Article 1(4) of Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art must be interpreted as not precluding the person by whom the resale royalty is payable, designated as such by national law, whether that is the seller or an art market professional involved in the transaction, from agreeing with any other person, including the buyer, that that other person will definitively bear, in whole or in part, the cost of the royalty, provided that a contractual arrangement of that kind does not affect the obligations and liability which the person by whom the royalty is payable has towards the author.

      (1)  OJ C 102, 7.4.2014.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/35

         Removal from the register of Case C-359/02 (1)

   (2004/C 94/90)
   By order of 26 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-359/02 (Reference for a preliminary ruling by the Tribunale di Modena, Italy, Ufficio del Guidice per le indagini preliminari): Christian Lanzotti.

      (1)  OJ C 359 of 7.12.2002.


title: Case F-105/14: Order of the Civil Service Tribunal (Third Chamber) of 22 April 2015 — ED v ENISA (Civil service — Temporary staff member — Selection procedure — Decision rejecting an application, during the pre-selection stage, following examination by a selection board — No complaint lodged within the time-limit laid down in the Staff Regulations against the decision rejecting the application — Request for information — Reply from the authority authorised to conclude employment contracts not including a review of the decision rejecting the application — Complaint lodged against that reply — Failure to comply with the pre-litigation procedure — Manifest inadmissibility — Article 81 of the Rules of Procedure)

text:
               8.6.2015

               EN

               Official Journal of the European Union

               C 190/32

         Order of the Civil Service Tribunal (Third Chamber) of 22 April 2015 — ED v ENISA
   (Case F-105/14) (1)

   ((Civil service - Temporary staff member - Selection procedure - Decision rejecting an application, during the pre-selection stage, following examination by a selection board - No complaint lodged within the time-limit laid down in the Staff Regulations against the decision rejecting the application - Request for information - Reply from the authority authorised to conclude employment contracts not including a review of the decision rejecting the application - Complaint lodged against that reply - Failure to comply with the pre-litigation procedure - Manifest inadmissibility - Article 81 of the Rules of Procedure))
   (2015/C 190/37)
   Language of the case: English

      Parties

      Applicant: ED (represented by: S.A. Pappas, lawyer)

      Defendant: European Union Agency for Network and Information Security (ENISA) (represented by: A. Ryan, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers)

      Re:

   Action for the annulment of the decision not to retain the applicant’s application for the post of ‘Legal Officer’ in response to Vacancy Notice ENISA-TA-AD-2013-05.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               ED shall bear her own costs and pay the costs incurred by the European Union Agency for Network and Information Security.

      (1)  OJ C 7 of 12.1.2015, p. 53.


title: Case T-131/04: Action brought on 26 March 2004 by Luc Jacobs against the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/51

         Action brought on 26 March 2004 by Luc Jacobs against the Commission of the European Communities
   (Case T-131/04)
   (2004/C 118/110)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 March 2004 by Luc Jacobs, resident in Brussels, represented by Nicolas Lhoëst, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court of First Instance should:

               —

               annul the decision of the appointing authority of 14 April 2003 inasmuch as it:

                           —

                           did not classify the applicant in Grade B4, step 3, at the time of his recruitment;

                           —

                           did not reconstitute the career in terms of the applicant's grade by bringing forward the date of his promotion to Grade B3 and granting him, if it so be, promotion to Grade B2;

                           —

                           limited the date of effect of the reclassification decision in regard to its pecuniary effects to 5 October 1995;

               —

               annul the decision of the appointing authority of 11 December 2003, served on the applicant on 16 December 2003, rejecting his complaint R/4/73/03;

               —

               order the defendant to pay compensation provisionally set in the amount of EUR 125 000 per annum in the event that, owing to impossibility, it is unable to reconstitute the applicant's career in terms of his grade;

               —

               order the defendant to pay all the costs.

         Pleas and main arguments
   The applicant in these proceedings who, on his recruitment in January 1991, was classified in Grade B5, step 3, challenges the decision of the appointing authority classifying him, on revision, in Grade B4, step 2, and not in Grade B4, step 3, refusing to reconstitute his career and limiting the date of effect of the decision on his reclassification to 5 October 1995.
   The pleas raised are identical to those in Case T-125/04 Rousseaux v Commisison


title: Case C-48/11: Judgment of the Court (Third Chamber) of 19 July 2012 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Veronsaajien oikeudenvalvontayksikkö v A Oy (Direct taxation — Freedom of establishment — Free movement of capital — EEA Agreement — Articles 31 and 40 — Directive 2009/133/EC — Scope — Exchange of shares between a company established in a Member State and a company established in a third State party to the EEA Agreement — Refusal of a tax advantage — Agreement on mutual administrative assistance in the field of taxation)

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/8

         Judgment of the Court (Third Chamber) of 19 July 2012 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Veronsaajien oikeudenvalvontayksikkö v A Oy
   (Case C-48/11) (1)

   (Direct taxation - Freedom of establishment - Free movement of capital - EEA Agreement - Articles 31 and 40 - Directive 2009/133/EC - Scope - Exchange of shares between a company established in a Member State and a company established in a third State party to the EEA Agreement - Refusal of a tax advantage - Agreement on mutual administrative assistance in the field of taxation)
   2012/C 295/12
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

      Applicant: Veronsaajien oikeudenvalvontayksikkö

      Defendant: A Oy

      Re:

   Reference for a preliminary ruling — Korkein hallinto-oikeus — Articles 31 and 40 of the Agreement of 2 May 1992 on the European Economic Area (OJ 1992 L 1, p. 3) — Interpretation of Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States (OJ 2009 L 310, p. 34) — Scope of application of that directive — Exchange of shares between a company established in a Member State of the European Union and a company established in a third state that is a member of the EEA (Norway) — Whether those transactions are treated for tax purposes in the same way as an exchange of shares between domestic companies or between companies established in Member States

      Operative part of the judgment

   Article 31 of Agreement on the European Economic Area of 2 May 1992 precludes legislation of a Member State which treats an exchange of shares between a company established in that Member State and a company established in a third country that is a party to that agreement as a taxable disposal of shares whereas such an operation would be neutral for tax purposes if it concerned only domestic companies or companies established in other Member States, if there is, between that Member State and the third country, an agreement on mutual administrative assistance in the field of taxation which provides for an exchange of information between the national authorities which is as effective as that provided for in Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799, which is for the referring court to ascertain.

      (1)  OJ C 103, 2.4.2011.


title: Case T-384/08: Action brought on 11 September 2008 — Elliniki Nafpigokataskevastiki and Others v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/48

         Action brought on 11 September 2008 — Elliniki Nafpigokataskevastiki and Others v Commission
   (Case T-384/08)
   (2008/C 301/82)
   Language of the case: English
   Parties

      Applicants: Elliniki Nafpigokataskevastiki AE Chartofylakeiou (Skaramangas,Greece) Howaldtswerke-Deutsche Werft GmbH (Kiel, Germany) and ThyssenKrupp Marine Systems AG (Hamburg, Germany) (represented by: U. Soltész, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Order the annulment of Article 16 of the decision of the Commission of 2 July 2008 on the Measures No C 16/2004 (ex NN 29/2004, CP 71/2002 and CP 133/2005) implemented by Greece in favour of Hellenic Shipyards; and

               —

               Order the Commission to pay the applicant's costs of the present proceedings.

         Pleas in law and main arguments
   By means of their application the applicants seek partial annulment of Commission Decision C(2008) 3118 final, of 2 July 2008, concerning sixteen measures implemented by the Greek State in favour of Hellenic Shipyards SA (‘HSY’) and, in particular, annulment of Article 16 of the said decision according to which the Commission decided that the Indemnification Guarantee granted by HSY's previous owner, Hellenic Bank of Industrial Development (‘ETVA’), to the consortium (1) that acquired HSY through a share purchase agreement (Howaldtswerke-Deutsche Werft (2) and Ferrostaal), in the event of state aid recovery from HSY, constitutes illegal state aid and should be stopped immediately.
   The applicants claim that the Commission incorrectly considered that the Indemnification Guarantee in the privatisation agreement was given at a time when ETVA was under state control. According to the applicants, the Indemnification Guarantee was only validly agreed after ETVA's privatisation and therefore constituted a measure negotiated between private parties, not imputable to the Greek State and therefore cannot be regarded as state aid.
   Moreover, the applicants submit that the Commission's allegation that the two separate clauses in the addendum to the purchase sharing agreement constituted one overall mechanism through which HSY would benefit is erroneous. In fact, the applicants submit that the two guarantees were granted independently of each other. In addition, the applicants contend that the Commission wrongly considered that HSY benefited from the Indemnification Guarantee since, having regard to the facts of the case, only Piraeus Bank could be considered to have benefited form it.
   The applicants argue that the Commission was wrong in considering that an economic advantage was conferred on HSY by virtue of the Indemnification Guarantee which (i) is a standard term under private law, (ii) was given after a dully carried out assessment and (iii) conforms to the conduct of a private vendor.
   Further, it is submitted that the Commission misapplied Article 88(2) EC and Article 14(1) of Regulation (EC) No 659/1999 in targeting Elliniki Nafpigokataskevastiki, which was not the beneficiary of the aid, by ordering it to stop the Indemnification Guarantee.
   Also, the applicants claim that the Commission's argument alleging circumvention of the effet utile of recovery wrongly relies on the assumption that circumvention occurs by the simple granting of the Indemnification Guarantee.
   Finally, the applicants submit that the Commission misapplied Article 296 EC in that it does not allow HSY to carry on a certain degree of civil activities which are of an ancillary nature in order to sustain the operation of the whole shipyard.

      (1)  This consortium founded Elliniki Nafpigokataskevastiki in order to harbour the holding in HSY.

      (2)  HDW is wholy owned by ThyssenKrupp Marine Systems which also acquired Ferrostaaal's shares in Elliniki Nafpigokataskevastiki in 2005.


title: Case T-469/09: Action brought on 23 November 2009 — Hellenic Republic v Commission

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/62

         Action brought on 23 November 2009 — Hellenic Republic v Commission
   (Case T-469/09)
   2010/C 24/109
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: I. Khalkias and S. Papaioannou)

      Defendant: European Commission

      Form of order sought

               —

               annul the contested Commission decision in its entirety;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In its action contesting Commission Decision C(2009) 7044 final of 24 September 2009 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2009 L 257, p. 28) in so far as the decision concerns financial corrections to its detriment, the Hellenic Republic puts forward the following two pleas for annulment.
   By the first plea for annulment, concerning the fruit and vegetable (tomato) processing sector, the applicant pleads incorrect interpretation and application of Article 28(1)(f), Article 28(2), Article 31(1) and (2) and Article 3(2) of Regulation (EC) No 1535/2003 (1) and of the guidelines AGRI VI 5330/97, 17933/2000 and 63983/2002 concerning financial corrections, given that in that sector all the key controls were effected satisfactorily and there were deficiencies only in ancillary secondary controls.
   By the second plea for annulment, concerning the public storage of rice, the applicant submits that there is no valid legal basis for imposing the correction, since the Commission misinterpreted Articles 4 and 6 of Regulation (EC) No 2148/1996, (2) or in the alternative that the principle of proportionality has been infringed.

      (1)  Commission Regulation (EC) No 1535/2003 of 29 August 2003 laying down detailed rules for applying Council Regulation (EC) No 2201/96 as regards the aid scheme for products processed from fruit and vegetables (OJ 2003 L 218, p. 14).

      (2)  Commission Regulation (EC) No 2148/96 of 8 November 1996 laying down rules for evaluating and monitoring public intervention stocks of agricultural products (OJ 1996 L 288, p. 6).


title: Order of the Court of First Instance of 21 March 2003 in Case T-167/02: Établissements Toulorge v European Parliament and Council of the European Union (Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Directive 2002/2/EC — Inadmissibility — Claim for damages)

text:
C 171/26                 EN                           Official Journal of the European Union                                              19.7.2003
Stahlhandel GmbH & Co. KG, established in Essen (Germany),                    repealing Commission Directive 91/357/EEC (OJ 2002 L 63,
and Metal Traders Stahlhandel GmbH, established in Düssel-                    p. 23) and a claim for compensation for the damage allegedly
dorf (Germany) represented by K. Friedrich, lawyer, with an                   suffered — the Court of First Instance (Fourth Chamber),
address for service in Luxembourg, against the Commission of                  composed of V. Tiili, President of the Chamber, P. Mengozzi
the European Communities (Agents: J. Forman and R. Raith) —                   and M. Vilaras, Judges; H. Jung, Registrar, made an order on
application, first, for the annulment of Commission Regulation                21 March 2003, the operative part of which is as follows:
(EC) No 560/2002 of 27 March 2002 imposing provisional
safeguard measures against imports of certain steel products
(OJ 2002 L 85, p. 1) and, second, a claim for damages —                       1.    The application is dismissed as inadmissible so far as it concerns
the Court of First Instance (First Chamber), composed of                            the annulment of Directive 2002/2/EC of the European
B. Vesterdorf, President R.M. Moura Ramos and H. Legal,                             Parliament and of the Council of 28 January 2002 amending
Judges; H. Jung, Registrar, made an order on 27 March 2003,                         Council Directive 79/373/EEC on the circulation of compound
the operative part of which is as follows:                                          feedingstuffs and repealing Commission Directive 91/357/
                                                                                EEC.
1.     There is no need to give a decision on the claim for annulment.
                                                                              2.    The requests submitted by the defendants that the action, in so
2.     The application for a ruling on the admissibility of the claim               far as it seeks compensation for the damage allegedly suffered,
       for damages is joined to the application on the substance.                   should be held inadmissible, are reserved for final judgment.
3.     The costs are reserved.                                                3.    Costs are reserved.
( 1) OJ C 191 of 10.8.02.
                                                                              (1 ) OJ 2002 C 180.
       ORDER OF THE COURT OF FIRST INSTANCE
                          of 21 March 2003
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
in Case T-167/02: Établissements Toulorge v European
      Parliament and Council of the European Union ( 1)                                                 of 31 March 2003
(Actions for annulment — Natural or legal persons —
Measures of direct and individual concern to them —                           in Case T-226/02: André Hecq v Commission of the
Directive 2002/2/EC — Inadmissibility — Claim for dam-                                            European Communities (1)
                                  ages)
                                                                              (Officials — Action for annulment — Act adversely affect-
                           (2003/C 171/43)                                                     ing an official — Inadmissibility)
                     (Language of the case: French)
                                                                                (2003/C 171/44)
                                                                                (Language of the case: French)
In Case T-167/02: Établissements Toulorge, established in
Bricquebec (France), represented by D. Waelbroeck and
D. Brinckman, lawyers, against European Parliament (Agents:
C. Pennera and Mme E. Waldherr) and Council of the European
Union (Agents: I. Diez Parra and F. P. Ruggeri Laderchi),
supported by Federal Republic of Germany (Agents: W.-                         In Case T-226/02: André Hecq, an official of the Commission
D. Plessing nad M. Lumma) and Commission of the European                      of the European Communities, residing in Mondercange
Communities (Agent: A. Bordes) — application for the annul-                   (Luxembourg), represented by L. Vogel and D. Amatulli,
ment of Directive 2002/2/EC of the European Parliament and                    lawyers, against the Commission of the European Communi-
of the Council of 28 January 2002 amending Council Directive                  ties (Agent: M. Currall) — application for the annulment of the
79/373/EEC on the circulation of compound feedingstuffs and                   Commission decision of 15 June 2001 approving the


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 7, 10.1.2004

text:
C 21/48         EN                     Official Journal of the European Union                         24.1.2004
                                                          III
                                                       (Notices)
                                                   (2004/C 21/93)
               Last publication of the Court of Justice in the Official Journal of the European Union
        OJ C 7, 10.1.2004
        Past publications
        OJ C 304, 13.12.2003
        OJ C 289, 29.11.2003
        OJ C 275, 15.11.2003
        OJ C 264, 1.11.2003
        OJ C 251, 18.10.2003
        OJ C 239, 4.10.2003
                                             These texts are available on:
                                        EUR-Lex: http://europa.eu.int/eur-lex
                                         CELEX: http://europa.eu.int/celex


title: Case T-299/01: Action brought on 27 November 2001 by Furness Intercontinental Services B.V. against the Commission of the European Communities

text:
16.2.2002             EN                      Official Journal of the European Communities                                         C 44/23
Action brought on 27 November 2001 by Furness Inter-                     In support of its claim, the applicant pleads, first of all,
continental Services B.V. against the Commission of the                  violation of the right to a fair hearing, as well as infringement
                    European Communities                                 of Articles 906a and 907 of Regulation No 2454/93 and
                                                                         misunderstanding of the principle of legal certainty. In particu-
                                                                         lar, the applicant was not given access to all the documents on
                        (Case T-299/01)                                  the file. As a result, it was unable to express its comments on
                                                                         the matter in a similar way, and could not validly put forward
                                                                         its point of view in accordance with Article 906a of Regulation
                         (2002/C 44/42)                                  No 2454/93. In addition, the Commission’s decision was given
                                                                         out of time, inasmuch as the time-limit for adoption of the
                                                                         decision could not be extended pursuant to Article 907 of that
                   (Language of the case: Dutch)                         regulation.
An action against the Commission of the European Communi-                The applicant further pleads infringement of Article 905 et
ties was brought before the Court of First Instance of the               seq. of Regulation No 2454/93 and the absence of a statement
European Communities on 27 November 2001 by Furness                      of reasons for the contested decision. According to the
Intercontinental Services B.V., established in Rotterdam, rep-           applicant, the Commission should have carried out an indepen-
resented by Johannes Wilhelmus Lambertus Maria ten Braak,                dent investigation into the question whether or not the Spanish
with an address for service in Luxembourg.                               customs authorities were involved in the fraud. The applicant
                                                                         maintains that the possible involvement of customs officials in
                                                                         the fraud constitutes a special circumstance justifying the
                                                                         repayment of the customs duties.
The applicant claims that the Court should:
—     annul decision REM 12/00 of the Commission on the                  The applicant also pleads a misunderstanding of the facts on
      grounds stated, pursuant to Article 230 EC;                        the part of the Commission. Thus, the Commission failed to
                                                                         take any or any sufficient account of the fact that the
                                                                         competent authorities were already aware of the fraud even
—     order the Commission to pay the costs.                             before the transportation in question took place. Moreover,
                                                                         those authorities thereafter requested the applicant’s assistance
                                                                         in their investigation of that fraud. The applicant further states
                                                                         that the simple declaration by the Spanish authorities that false
                                                                         stamps were used in that fraud is not supported by sufficient
Pleas in law and main arguments                                          evidence. In addition, according to the applicant, the decision
                                                                         does not contain an adequate statement of reasons on those
                                                                         points.
The applicant operates as a customs agent, storing goods
under customs control on behalf of third parties and dealing
with customs declarations. In that connection, it drew up
declarations in respect of the external Community transit of             Lastly, the applicant claims that the Commission, in adopting
ethyl alcohol from the Netherlands to Morocco. On behalf of              the contested decision, misconstrued its own responsibility in
the same client, the applicant also drew up declarations in              the matter. According to the applicant, the Commission is
respect of other shipments under the external Community                  responsible for the proper functioning of the customs system.
transit procedure. It subsequently became apparent, however,             At the time of the shipments in question, it was not possible
that there had been irregularities in relation to those shipments.       for the applicant to avoid or trace the fraud, which was
The goods were not in fact delivered to their declared                   perpetrated by third parties, even by taking all possible
destination, and the Spanish customs authorities’ documents              precautionary measures.
relating to the clearance of the goods appeared to be forgeries.
The applicant states that it was not aware of this.
                                                                         (1) Council Regulation (EEC) No 2913/92 of 12 October 1992
                                                                             establishing the Community Customs Code.
The applicant was required to pay the import duties still due            (2) Council Regulation (EEC) No 1430/79 of 2 July 1979 on the
in that regard. The applicant subsequently applied to the                    repayment or remission of import or export duties.
Netherlands authorities for a refund of those import duties              (3) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
pursuant to Article 239(2) of Regulation (EEC) No 2913/92 (1).               down provisions for the implementation of Council Regulation
The Netherlands authorities in turn submitted an application                 (EEC) No 2913/92 establishing the Community Customs Code.
in this regard to the European Commission pursuant to
Article 13 of Regulation (EEC) No 1430/79 (2) and Article 905
of Regulation No 2454/93 (3). That application was rejected
by the Commission in the contested decision.