title: ORDER OF THE COURT OF FIRST INSTANCE of 18 February 1998 in Case T-189/97: Comité d'entreprise de la Société française de production and Others v. Commission of the European Communities (State aid - Decision declaring aid incompatible with the common market - Action for annulment - Trade unions and works councils - Inadmissibility)

text:
C 113/16              EN                Official Journal of the European Communities                                   11.4.98
     ORDER OF THE COURT OF FIRST INSTANCE                          Republic Ð the Court of First Instance (Second Chamber),
                     of 13 February 1998                           composed of: A. Kalogeropoulos, President; C. W. Bellamy
                                                                   and J. Pirrung, Judges; H. Jung, Registrar, made an order
      in Case T-276/97: GueÂrin Automobiles EURL v.                on 16 February 1998, the operative part of which is as
       Commission of the European Communities (1)                  follows:
(Competition Ð Action for annulment Ð Time limit for
bringing proceedings Ð Manifest inadmissibility of the
                         application)                              1. the action is dismissed as inadmissible,
                        (98/C 113/39)
                                                                   2. the applicants are ordered to pay the costs.
                (Language of the case: French)
                                                                   (1) OJ C 271, 6.9.1997.
In Case T-276/97: GueÂrin Automobiles EURL, a company
in judicial liquidation, established at AlencËon (France),
acting in the person of Xavier LemeÂe, liquidator,
represented by Jean-Claude Fourgoux, of the Paris and
Brussels Bar, with an address for service in Luxembourg at
the Chambers of Pierrot Schiltz, 4 rue BeÂatrix de Bourbon,
v. Commission of the European Communities Ð                              ORDER OF THE COURT OF FIRST INSTANCE
application for annulment of Decision SG(97) D/823182                                   of 18 February 1998
of the Commission of 25 April 1997 rejecting the
applicant's complaint No IV/F-2/34.423 Ð the Court of              in Case T-189/97: ComiteÂ d'entreprise de la SocieÂteÂ
First Instance (Third Chamber), composed of V. Tiili,              francËaise de production and Others v. Commission of the
President, and C. P. BrieÈt and A. Potocki, Judges; H. Jung,                         European Communities (1)
Registrar, made an order on 13 February 1998, the
operative part of which is as follows:
                                                                   (State aid Ð Decision declaring aid incompatible with the
                                                                   common market Ð Action for annulment Ð Trade unions
                                                                               and works councils Ð Inadmissibility)
1. the application is dismissed as manifestly inadmissible,                                (98/C 113/41)
2. the applicant is ordered to bear its own costs.
                                                                                (Language of the case: French)
(1) OJ C 7, 10.1.1998.
                                                                   In Case T-189/97: ComiteÂ d'entreprise de la SocieÂteÂ
                                                                   francËaise de production, established at Bry-sur-Marne
                                                                   (France), Syndicat national de radiodiffusion et de
                                                                   teÂleÂvision CGT (SNRT-CGT), established in Paris,
                                                                   Syndicat unifieÂ de radio et de teÂleÂvision CFDT
                                                                   (SURT-CFDT), established in Paris, Syndicat national
     ORDER OF THE COURT OF FIRST INSTANCE
                                                                   force ouvrieÁre de radiodiffusion et de teÂleÂvision,
                     of 16 February 1998                           established in Paris, and Syndicat national de
                                                                   l'encadrement audiovisuel CFE-CGC (SNEA-CFE-CGC),
in Case T-182/97: Smanor SA and Others v. Commission
                                                                   established in Paris, represented by HeÂleÁne Masse-Dessen,
              of the European Communities (1)
                                                                   avocat at the Conseil d'EÂtat and at the Cour de Cassation,
(Refusal to bring Treaty infringement proceedings Ð                with an address for service in Luxembourg at the
          Action for annulment Ð Inadmissibility)                  Chambers of Guy Thomas, 77 boulevard de la Grande-
                                                                   Duchesse Charlotte, v. Commission of the European
                        (98/C 113/40)                              Communities (Agents: GeÂrard Rozet and Dimitris
                                                                   Triantafyllou) Ð application for annulment of
                (Language of the case: French)                     Commission Decision 97/238/EC of 2 October 1996
                                                                   concerning aid granted by the French State to the
                                                                   audiovisual production company SocieÂteÂ francËaise de
In Case T-182/97: Smanor SA, established at Saint-Martin-          production (2) Ð the Court of First Instance (Second
d'Ecublei (France), Hubert SeÂgaud and Monique SeÂgaud,            Chamber, Extended Composition), composed of A.
residing at Saint-Martin-d'Ecublei, represented by                 Kalogeropoulos, President, and C. P. BrieÈt, C. W. Bellamy,
Laurence Roques, of the Val de Marne Bar, 7Ð9 rue du               A. Potocki and J. Pirrung, Judges; H. Jung, Registrar,
GeÂneÂral de Larminat, CreÂteil (France), v. Commission of         made an order on 16 February 1998, the operative part of
the European Communities (Agents: Richard Wainwright               which is as follows:
and Olivier Couvert-Castera) Ð application for annulment
of the Commission's decision of 21 May 1997 not to
bring Treaty infringement proceedings against the French           1. the application is dismissed as inadmissible,
 ---pagebreak--- 11.4.98               EN                Official Journal of the European Communities                                C 113/17
2. the applicants are ordered to pay the costs.                    requested the Commission to reimburse the fines paid by
                                                                   them. By letter of 4 October 1995, the Commission
(1) OJ C 271, 6.9.1997.                                            refused on the ground that the decision imposing the fines
(2) OJ L 95, 10.4.1997, p. 19.                                     was still standing with regard to the applicants. The
                                                                   applicants applied to the Court of First Instance for the
                                                                   annulment of the Commission's decision of refusal (1). By
                                                                   judgment of 10 July 1997 the Court of First Instance
                                                                   annulled that decision.
Action brought on 14 November 1997 by AssiDöman
                                                                   The applicants state that the Court of First Instance held
Kraft Products AB and six other Swedish wood pulp
                                                                   that, pursuant to Article 176 of the Treaty, the
companies against the Commission of the European
                                                                   Commission should have reviewed, in the light of the
                          Communities
                                                                   wood pulp judgment, the lawfulness of the wood pulp
                       (Case T-292/97)                             Decision in so far as it applies to the Swedish addressees
                         (98/C 113/42)                             and, if it concluded that there was no lawful basis for the
                                                                   fines imposed on them, it would be required, by virtue of
                                                                   the rule of law and pursuant to the principle of proper
               (Language of the case: English)
                                                                   administration, to repay the fines.
An action against the Commission of the European
Communities was brought before the Court of First                  By letter of 12 August 1997, the applicants called on the
Instance of the European Communities on 14 November                Commission to take a position on the obligations arising
1997 by AssiDöman Kraft Products AB and six other                  out of the judgment of 10 July 1997 within two months of
Swedish wood pulp companies, represented by John                   receipt of that letter. No response of any kind was
Pheasant, Solicitor of the Supreme Court of England and            received from the Commission.
Wales, of Lovell White Durrant, with an address for
service in Luxembourg at the offices of Loesch & Wolter,
11 rue Goethe, Luxembourg.                                         The applicants maintain that the Commission, though
                                                                   called on to act, has failed to comply with the obligations
                                                                   arising out of the judgment of 10 July 1997, contrary to
The applicants claim that the Court should:
                                                                   Article 176 of the Treaty and in defiance of the principle
                                                                   of proper administration and of the rule of law.
Ð declare, pursuant to Article 175 of the EC Treaty, that,
    in breach of Article 176 of that Treaty, the
    Commission has failed to take the necessary measures           (1) Case T-227/95 (OJ C 64, 2.3.1996, p. 16).
    to comply with the Court's judgment of 10 July 1997,
Ð order, pursuant to Article 176 of the Treaty and
    without prejudice to the rights of the applicants under
    the second paragraph of Article 215 thereof, the
    Commission to take the necessary measures to comply            Action brought on 26 January 1998 by Amedeo Musso
    with the judgment of 10 July 1997,                                against the Commission of the European Communities
                                                                                (Case T-23/98)
Ð order the Commission to pay the costs.
                                                                                (98/C 113/43)
Pleas in law and main arguments adduced in support:
                                                                                (Language of the case: Italian)
The applicants, or their predecessors in title, were among
the addressees of Commission Decision 85/202/EEC of
19 December 1984 relating to a proceeding pursuant to              An action against the Commission of the European
Article 85 of the EC Treaty (IV/29.725 Ð Wood pulp) by             Communities was brought before the Court of First
which the Commission imposed fines on 43 of the                    Instance of the European Communities on 26 January
addressees of the Decision. The applicants, who had never          1998 by Amedeo Musso, represented by Vincenzo Cinque
accepted the allegations of infringement, did not bring an         and Luciana Candriella, of the Udine Bar, 34 via
action for annulment of the Decision and paid the fines to         Morpurgo, Udine.
the Commission. On application by other addressees of
the Decision, the Court of Justice, by judgment of
31 March 1993 in Joined Cases C-89/85, C-104/85,                   The applicant claims that the Court should:
C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/
85, A. Ahlström Oy v. Commission, annulled, inter alia,            Ð annul Commission Decision C(97) 2735 final of
two of the key findings of infringement with the result                 30 July 1997,
that the Commission was required to repay to the
producers who had been parties to those proceedings the
fines imposed on the basis of those findings of                    Ð in the alternative, annul Article 5 of that Decision
infringement. Pursuant to that judgment, the applicants                 inasmuch as it requires the Member State to recover


title: Case T-341/07: Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009 — Sison v Council of the European Union (Common foreign and security policy — Restrictive measures against certain persons and entities with a view to combating terrorism — Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 — Actions for annulment — Adaptation of heads of claim — Judicial review — Statement of reasons — Conditions for implementation of a Community measure freezing funds)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/42

         Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009 — Sison v Council of the European Union
   (Case T-341/07) (1)

   (Common foreign and security policy - Restrictive measures against certain persons and entities with a view to combating terrorism - Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 - Actions for annulment - Adaptation of heads of claim - Judicial review - Statement of reasons - Conditions for implementation of a Community measure freezing funds)
   2009/C 282/78
   Language of the case: English

      Parties

      Applicant: Jose Maria Sison (Utrecht, Netherlands) (represented by: J. Fermon, A. Comte, H. Schultz, D. Gürses and W. Kaleck, Lawyers)

      Defendant: Council of the European Union (represented by: M. Bishop and E. Finnegan, Agents)

      Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland, (represented by S. Behzadi Spencer and I. Rao, Agents); Kingdom of the Netherlands, (represented by C. Wissels, M. de Mol, M. Noort and Y. de Vries, Agents) Commission of the European Communities (represented by P. Aalto and S. Boelaert, Agents)

      Re:

   First, an application for annulment in part of Council Decision of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58) and, second, an application for compensation

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Decision 2007/445/EC of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC, Council Decision 2007/868/EC of 20 December 2007 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2007/445, Council Decision 2008/343/EC of 29 April 2008 amending Decision 2007/868, Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2007/868, Council Decision 2009/62/EC of 26 January 2009 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2008/583, and Regulation (EC) No 501/2009 of 15 June 2009 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2009/62, in so far as those acts concern Jose Maria Sison;

               2.

               Reserves the costs.

      (1)  OJ C 269, 10.11.2007.


title: Case T-287/13: Judgment of the General Court of 13 February 2015 — Husky CZ v OHIM — Husky of Tostock (HUSKY) (Community trade mark — Revocation proceedings — Community word mark HUSKY — Genuine use of the trade mark — Partial revocation — Extension of the time-limit — Rule 71(2) of Regulation (EC) No 2868/95 — Translation into the language of the proceedings)

text:
               30.3.2015

               EN

               Official Journal of the European Union

               C 107/25

      Judgment of the General Court of 13 February 2015 — Husky CZ v OHIM — Husky of Tostock (HUSKY)
      (Case T-287/13) (1)

      ((Community trade mark - Revocation proceedings - Community word mark HUSKY - Genuine use of the trade mark - Partial revocation - Extension of the time-limit - Rule 71(2) of Regulation (EC) No 2868/95 - Translation into the language of the proceedings))
      (2015/C 107/33)
      Language of the case: English

         Parties

         Applicant: Husky CZ s.r.o. (Prague, Czech Republic) (represented by: L. Lorenc, lawyer)

         Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Geroulakos and I. Harrington, acting as Agents)

         Other party to the proceedings before the Board of Appeal of OHIM: Husky of Tostock Ltd (Woodbridge, United Kingdom)

         Re:

      Action brought against the decision of the First Board of Appeal of OHIM of 14 March 2013 (Case R 748/2012-1), relating to revocation proceedings between Husky CZ s.r.o. and Husky of Tostock Ltd.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Husky CZ s.r.o. to pay the costs.

         (1)  OJ C 207, 20.7.2013.


title: Case T-500/10: Action brought on 19 October 2010 — Dorma v OHIM — Puertas Doorsa (doorsa FÁBRICA DE PUERTAS AUTOMÁTICAS)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/52

         Action brought on 19 October 2010 — Dorma v OHIM — Puertas Doorsa (doorsa FÁBRICA DE PUERTAS AUTOMÁTICAS)
   (Case T-500/10)
   ()
   2010/C 346/103
   Language in which the application was lodged: English

      Parties

      Applicant: Dorma GmbH & Co. KG (Ennepetal, Germany) (represented by: P. Koch Moreno, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Puertas Doorsa, SL (Petrel, Spain)

      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 17 August 2010 in case R 542/2009-4; and

               —

               Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings.

      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 figurative mark “doorsa FÁBRICA DE PUERTAS AUTOMÁTICAS”, for goods in classes 6, 9 and 19 — Community trade mark application No 4884359

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

      Mark or sign cited: German trade mark registration No 39525884 of the figurative mark “DORMA”, for goods and services in classes 6, 9, 16, 19 and 37; United Kingdom trade mark registration No 2201691 of the word mark “DORMA” for goods in classes 6, 7, 9, 16 and 19; International trade mark registration No 722009 of the figurative trade mark “DORMA” for goods in classes 6, 7, 9, 16 and 19

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: The applicant considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal misapplied the provisions of this article to the contested trade mark.


title: Case T-666/14: Action brought on 16 September 2014 — Monster Energy v OHIM (GREEN BEANS)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/29

         Action brought on 16 September 2014 — Monster Energy v OHIM (GREEN BEANS)
   (Case T-666/14)
   (2015/C 127/40)
   Language of the case: English

      Parties

      Applicant: Monster Energy Company (Corona, United States of America) (represented by: P. Brownlow, Solicitor)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community word mark ‘GREEN BEANS’ — Application for registration No 11 410 801

      Contested decision: Decision of the First Board of Appeal of OHIM of 2 December 2013 in Case R 1530/2013-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea(s) in law

               —

               Infringement of Articles 7(1)(b) and 7(1)(c) of Regulation No 207/2009.


title: Case T-82/00: Action brought on 15 April 2000 by Bic S.A., Flamagas S.A. and Swedish Match S.A. against Council of the European Union

text:
C 176/24               EN                      Official Journal of the European Communities                                     24.6.2000
Action brought on 4 April 2000 by ACA — Associação                       Pleas in law and main arguments
Comercial de Aveiro against the Commission of the
                    European Communities                                  This action is directed against Council Regulation (EC)
                                                                          No 174/2000 of 24 January 2000 repealing Council Regu-
                         (Case T-81/00)                                   lation (EEC) No 3433/91 in so far as it imposes a definitive
                                                                          anti-dumping duty on imports of gas-fuelled, non-refillable
                        (2000/C 176/41)                                   pocket flint lighters originating in Japan (1).
                                                                          The applicants represent more than 75 % of Community
                 (Language of the case: Portuguese)                       production of gas-fuelled, non-refillable pocket flint lighters.
                                                                          They are suffering the consequences of failure to adopt the
An action against the Commission of the European Communi-                 anti-dumping measures concerned.
ties was brought before the Court of First Instance of the
European Communities on 4 April 2000 by ACA — Associa-
                                                                          In support of their action the applicants allege:
ção Comercial de Aveiro, a non-profit-making organisation,
whose registered office is at Aveiro (Portugal), represented by
João Amaral e Almeida and Bernardo Diniz de Ayala, of the                — manifest error in the appreciation of the facts, having
Lisbon Bar.                                                                    regard to the total lack of correspondence between the
                                                                               results of the preparatory inquiry conducted by the
                                                                               Commission and the content of the provisions enacted by
The applicant claims that the Court should:                                    the Council. It is pointed out in this connection that,
                                                                               according to the Commission’s investigations, the average
a) Declare admissible the present action and, accordingly,                     price of the products imported from Japan amounted to a
     annul the decision of the Commission of the European                      reduction of 22,9 % in relation to the average weighted
     Communities approving the claim for payment of the                        price of the Community producers, despite the upward
     balance relating to file 891038 P3 of 30 November 1999,                   effect which the anti-dumping duty of 35,7 % imposed by
     notified to the applicant on 27 January 2000 by way of                    Regulation No 3433/91 exerted on the prices charged;
     decision No 00723 of the DAFSE — Departamento para
     os Assuntos do Fundo Social Europeu;                                 — breach of Article 253 of the Treaty, inasmuch as there is
                                                                               plainly a conflict between the facts and the contents of the
b) Order the Commission to pay the costs.                                      contested regulation. In that regard, they claim that the
                                                                               regulation does not reveal a single fact which might lend
                                                                               support to the repeal of the anti-dumping measures. On
Pleas in law and main arguments
                                                                               the contrary, all the recitals in the preamble to the
                                                                               regulation emphasise the persistence of a state of grave
The pleas in law and main arguments are identical with those                   danger for the Community industry and the gradual loss
in Case T-80/00.                                                               of profitability recorded in that sector.
                                                                          (1) OJ L 22 of 27 January 2000, p. 16.
Action brought on 15 April 2000 by Bic S.A., Flamagas
S.A. and Swedish Match S.A. against Council of the
                        European Union
                                                                          Action brought on 19 April 2000 by Adolfo Kind against
                         (Case T-82/00)                                          the Commission of the European Communities
                        (2000/C 176/42)
                                                                                (Case T-91/00)
                   (Language of the case: Italian)                                                 (2000/C 176/43)
An action against the Council of the European Union was
brought before the Court of First Instance of the European                                    (Language of the case: Italian)
Communities on 15 April 2000 by Bic S.A., Flamagas S.A. and
Swedish Match S.A., represented by Alessio Vianello.                      An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
The applicants claim that the Court should:                               European Communities on 19 April 2000 by Adolfo Kind,
                                                                          represented by Giuseppe Marchesini, of the Vicenza Bar, with
— annul Council Regulation (EC) No 174/2000 of 24 January                 an address for service in Luxembourg at the chambers of
     2000 and order the Council to pay the costs.                         Ernest Arendt, 8-10 Rue Mathias Hardt.


title: Case C-345/10 P: Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-110/08 Freixenet v OHIM

text:
               9.10.2010

               EN

               Official Journal of the European Union

               C 274/9

         Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-110/08 Freixenet v OHIM
   (Case C-345/10 P)
   ()
   2010/C 274/13
   Language of the case: French

      Parties

      Appellant: Freixenet, SA (represented by: F. de Visscher, E.Cornu and D. Moreau, lawyers)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

               —

               principally: set aside the judgment of the General Court of 27 April 2010 and annul the decision of the First Board of Appeal of OHIM of 20 November 2007, and decide that the application for Community trade mark No 32 540 satisfies the conditions for publication under Article 40 of Regulation No 40/94 (now Article 39 of Regulation No 207/2009);

               —

               in the alternative, set aside the judgment of the General Court of 27 April 2010;

               —

               in any event, order OHIM to pay the costs.

      Pleas in law and main arguments

   The appellant relies on the following three pleas in support of its appeal.
   By its first plea, the appellant essentially alleges an infringement of the rights of the defence and the right to a fair hearing, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 73 (second sentence) and 38(3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) (now Articles 75 (second sentence) and 37(3) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark). (2)

   The first part of this plea alleges the breach of the audi alteram partem rule. According to the appellant, contrary to what the General Court found in the judgment under appeal, the First Board of Appeal of OHIM, in the decision that was brought before the General Court, undertook a new appraisal of the distinctive character of the appellant’s trade mark without allowing the appellant to make observations on that new appraisal. In this respect the reasons given by the General Court in support of the decision of the First Board of Appeal are incorrect and insufficient in the light of the principle of procedural fairness and respect for the rights of the defence. The judgment under appeal furthermore infringes the principle of the rights of the defence and procedural fairness, in deciding that the Office could communicate to the appellant a series of facts, indicating that it would base its refusal decision on those facts and then, after receiving the appellant’s written observations on those facts, decided, at least in part, to disregard them and to found its decision on an evaluation that was factually and conceptually different, without giving the appellant the opportunity to submit any observations.
   In the second part, the appellant principally alleges a breach by the General Court of the requirement to state reasons, in that the judgment under appeal could not consider that a sufficient statement of reasons was given for the decision of the First Board of Appeal on the application of Article 7(1)(b), a decision which does not specify any of the documents upon which it seeks to rely, and could not consider that it was unnecessary to refer to items of evidence because the First Board of Appeal allegedly relied upon “deductions made from practical experience”. Furthermore, the uncertainty of the facts and the documents upon which the Office and the General Court relied affect both the rights of the defence and the requirement under Article 73 of Regulation No 40/94 to state reasons.
   By its second plea, the appellant argues a breach by the General Court of Article 7(1)(b) of Regulation No 40/94. Although the appellant established, supported by documents, that the trade mark applied for consists of a combination of very characteristic elements which distinguish it significantly from the presentation of other products on the market, the General Court, in finding that the trade mark applied for did not have any distinctive character, only referred to the vague and general denials of the Office. The General Court was stricter in its appraisal of the distinctive character of the trade mark in question than in the case of other more traditional trade marks. The judgment under appeal thus infringed the obligation to carry out a specific assessment of the distinctive character of a trade mark. Moreover, in finding that the great majority of consumers do not perceive the original appearance of the trade mark as a useful factor in determining the origin of the sparkling wine in question, but prefer to refer to the label, the General Court ruled out the protection of the shape of a product’s packaging, even though that possibility is expressly envisaged by Article 4 of the Regulation.
   By its third plea, the appellant alleges a breach by the General Court of Article 7(3) of Regulation No 40/94 in that the judgment under appeal imposes a requirement that the trade mark applied for has acquired a distinctive character through use in each of the Member States of the European Union. By refusing to acknowledge recognition of its distinctive character through its use by a significant proportion of the relevant class of persons, whilst at the same time acknowledging that the appellant’s trade mark had at least acquired such character in Spain, the General Court formulated a rule that was excessive and incorrect in the light of the Regulation.

      (1)  OJ 1994, L 11, p. 1.

      (2)  OJ 2009, L 78, p. 1.


title: Case T-362/05: Action brought on  21 September 2005  — Nuovo Agricast v Commission of the European Communities

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/33

         Action brought on 21 September 2005 — Nuovo Agricast v Commission of the European Communities
   (Case T-362/05)
   (2005/C 296/69)
   Language of the case: Italian
   Parties

      Applicant(s): Nuovo Agricast s.r.l. (Cerignola, Italy) (represented by Michele Arcangelo Calabrese)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant claims, subject to all procedural reservations, that the Court should declare that, by having acted unlawfully as set out in the application, the Commission has seriously and manifestly infringed Community law, and has caused the applicant financial damage, and must therefore be ordered to pay to the applicant:

               (a)

               compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the first part of the aid;

               (b)

               compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the second part of the aid;

               (c)

               compensation of EUR 701 692,77 by way of indemnifying the damage consisting of failure to obtain the third part of the aid;

               (d)

               interest on those sums as revalued;

               (e)

               EUR 1 453 387,03, or whatever greater or lesser sum may be determined — possibly in agreement with the Commission — during the proceedings, as compensation for the loss of income in the normal management of the undertaking in the financial year ending 30 June 2002 compared with the income it would have had if the investment programme had been completed;

               (f)

               interest on the sum under (e) as revalued;

               (g)

               the costs of the proceedings, including those of the party's technical consultancy.

         Pleas in law and main arguments
   The applicant in this case, as in Cases T-139/03 (1), T-151/03 (2) and T-98/04 (3), charges the Commission with having acted unlawfully in the preliminary investigation in respect of State aid N 715/99, the result of which was a decision to grant authorisation without objections. That authorisation extended, for the six-year period 2000-2006, the State aid scheme referred to by Law No 488/92, which had previously in 1997 been authorised until 31 December 1999.
   It is in this regard to be borne in mind that in accordance with the special administrative procedure for the obtaining of aid the Italian Government ought every six months to have issued invitations to tender, in which the undertakings concerned might have taken part. The financial resources used to fund the tender procedure would have been allocated to the undertakings in order of classification until exhausted. Having taken part in the third tender procedure, the applicant could not obtain aid because the resources intended for funding of its classification level had been exhausted.
   The Italian Government, in proposing the investigation into aid No 715/99, asked the Commission to agree, in the first tender procedure under the new scheme, to the reformulation of applications submitted under the third and fourth notices to tender. The Commission, however, restricted its authorisation to the fourth invitation to tender.
   In support of its claims, the applicant argues that the Commission:

               —

               by having failed to initiate the formal investigation procedure when, once it had received the Italian Government's proposal for reformulation of the applications in respect of the third invitation to tender under the previous scheme, it considered that proposal incompatible with the common market, has infringed Article 88(2) of the Treaty and the principle of protection of the right to a fair hearing;

               —

               has breached the principle of legal certainty;

               —

               has committed an error of assessment.

         According to the applicant, by making the compatibility with the common market of the proposal to allow undertakings taking part in the third tender procedure to reformulate their tender and by concluding, without the least discussion with the parties concerned, that the proposal was incompatible, the Commission has altered its decision to approve the 1997 scheme, which presupposed a previous investigation under Article 87 of the Treaty.
   Furthermore, the applicant alleges that, by affecting and putting an end to pre-existing legal situations, the defendant has in fact revoked the authorisation decision of 1997, without observing the procedural guarantees provided by Regulation EC No 659/99 for cases of revocation of aid.

      (1)  Order of the Court of First Instance of 8 June 2005, not published.

      (2)  Order of the Court of First Instance of 8 June 2005, not yet published in the ECR.

      (3)  Order of the Court of First Instance of 15 June 2005, not published.


title: Case C-496/09: Action brought on 2 December 2009 (faxed on 30 November 2009 ) — European Commission v Italian Republic

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/44

         Action brought on 2 December 2009 (faxed on 30 November 2009) — European Commission v Italian Republic
   (Case C-496/09)
   2010/C 24/77
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: L. Pignataro and E. Righini, agents)

      Defendant: Italian Republic

      Form of order sought

               —

               Declare that, by failing to adopt all the measures necessary to comply with the judgment delivered by the Court of Justice of the European Communities on 1 April 2004 in Case C-99/02 concerning the recovery from beneficiaries of aid considered unlawful and incompatible with the common market by Commission Decision 2000/128/EC (1) of 11 May 1999 concerning aid granted by Italy to promote employment, the Italian Republic has failed to fulfil its obligations under that decision and under Article 228(1) EC;

               —

               Order the Italian Republic to pay to the Commission a daily penalty payment of EUR 285 696 for the delay in implementing the judgment in Case C-99/02 concerning Decision 2000/128/EC, from the date on which judgment is delivered in the present case until the judgment in Case C-99/02 is complied with;

               —

               Order the Italian Republic to pay to the Commission a lump sum, the amount of which is calculated by multiplying a daily amount of EUR 31 744 by the number of days over which the failure to fulfil obligations continues from the date of delivery of judgment in the present case concerning Decision 2000/128/EC;

               —

               order the Italian Republic to pay the costs.

      Pleas in law and main arguments

   The Italian Republic has failed to adopt all the measures necessary to recover the aid considered unlawful and incompatible in the decision in that, by June 2009, it had recovered only EUR 52 088 600,60 out of a total sum to be recovered of EUR 281 525 688,79. The Italian Republic acknowledges that the sum yet to be recovered is EUR 229 437 086,19. It has therefore failed to adopt all the measures necessary to comply with the decision, which it was required to do in the judgment in Case C-99/02.

      (1)  OJ 2000 L 42, p. 1.


title: Case C-39/12: Order of the President of the Court of 18 June 2012 — (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Vu Thang Dang, interested party: Generalbundesanwalt beim Bundesgerichtshof

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/21

         Order of the President of the Court of 18 June 2012 — (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Vu Thang Dang, interested party: Generalbundesanwalt beim Bundesgerichtshof
   (Case C-39/12) (1)

   2012/C 303/42
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 118, 21.4.2012.


title: Case T-79/15: Judgment of the General Court of 17 December 2015 — Olympus Medical Systems v OHIM (3D) (Community trade mark — Application for the Community figurative mark 3D — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/17

         Judgment of the General Court of 17 December 2015 — Olympus Medical Systems v OHIM (3D)
   (Case T-79/15) (1)

   ((Community trade mark - Application for the Community figurative mark 3D - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2016/C 059/18)
   Language of the case: English

      Parties

      Applicant: Olympus Medical Systems Corp. (Tokyo, Japan) (represented by: A. Ebert-Weidenfeller and C. Opatz, lawyers)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 11 December 2014 (Case R 1708/2014-2) relating to an application for registration of the figurative sign 3D as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Olympus Medical Systems Corp. to pay the costs.

      (1)  OJ C 118, 13.4.2015.


title: Judgment of the Court of First Instance of 11 July 2002 in Case T-163/01: Juan Pedro Perez Escanilla v Commission of the European Communities (Officials — Promotion — Consideration of comparative merits — Action for annulment)

text:
14.9.2002               EN                      Official Journal of the European Communities                                          C 219/19
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               sels, represented by N. Korogiannakis, lawyer, against Com-
                                                                           mission of the European Communities (Agents: X. Yataganas
                           of 11 July 2002                                 and C. Berardis-Kayser) — application for the annulment of
                                                                           the decision of the Commission of 15 December 2000
                                                                           appointing the applicant and classifying him in Grade A 5,
in Case T-163/01: Juan Pedro Perez Escanilla v Com-                        step 1, with effect from 16 December 2000 — the Court of
           mission of the European Communities (1)                         First Instance (Single Judge: M. Vilaras); J. Palacio González,
                                                                           Administrator, for the Registrar, gave a judgment on 11 July
(Officials — Promotion — Consideration of comparative                      2002, in which it:
                 merits — Action for annulment)
                                                                           1.    annuls the decision of the Commission of 15 December 2000
                          (2002/C 219/47)                                        classifying the applicant in Grade A 5, step 1, with effect from
                                                                                16 December 2000.
                    (Language of the case: French)
                                                                           2.    orders the Commission to pay the costs.
In Case T-163/01: Juan Pedro Perez Escanilla, an official of
                                                                           (1 ) OJ C 3 of 5.1.2002.
the Commission of the European Communities, residing in
Brussels, represented by J.-N. Louis and V. Peere, lawyers, with
an address for service in Luxembourg, against Commission of
the European Communities (Agent: C. Berardis-Kayser) —
application for annulment of the decision of the Commission
not to promote the applicant to Grade A 4 in the 1999
promotions procedure — the Court of First Instance (Fifth
Chamber), composed of J.D. Cooke, President, R. García-
Valdecasas and P. Lindh, Judges; J. Palacio González, Adminis-
trator, for the Registrar, gave a judgment on 11 July 2002, in             Action brought on 2 June 2002 by Pierre Tomarchio
which it:                                                                       against Commission of the European Communities
1.     Annuls the decision of the Commission not to promote the                                      (Case T-173/02)
       applicant to Grade A 4 in the 1999 promotions procedure.
2.     Orders the Commission to pay the costs.                                                       (2002/C 219/49)
( 1) OJ C 275 of 29.9.2001.                                                                     (Language of the case: French)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 2 June 2002 by Pierre Tomarchio,
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               residing in Nancy (France), represented by Nicolas Lhoëst,
                                                                           lawyer, with an address for service in Luxembourg.
                           of 11 July 2002
in Case T-263/01: Petros Mavromichalis v Commission of                     The applicant claims that the Court should:
                  the European Communities (1)
                                                                           —     annul the decision of the Commission of 27 July 2001
                                                                                refusing to appoint the applicant to a higher grade in the
(Officials — Prior complaint through official channels —
                                                                                category in accordance with Article 31(2) of the Staff
Implied rejection — Classification in grade and step —
                                                                                Regulations;
                       Statement of reasons)
                                                                           —     annul all other connected and/or subsequent decisions;
                          (2002/C 219/48)
                                                                           —     in so far as necessary, annul the express decision which
                     (Language of the case: Greek)                               the Commission adopted on 12 February 2002 rejecting
                                                                                the complaint lodged by the applicant under Article 90(2)
                                                                                of the Staff Regulations;
In Case T-263/01: Petros Mavromichalis, an official of the
Commission of the European Communities, residing in Brus-                  —     order the defendant to pay the costs.


title: Case C-520/10: Judgment of the Court (Third Chamber) of 3 May 2012 (reference for a preliminary ruling from the First-Tier Tribunal (Tax Chamber) — United Kingdom) — Lebara Ltd v Commissioners for Her Majesty’s Revenue and Customs (Taxation — Sixth VAT Directive — Article 2 — Supply of services for consideration — Telecommunications services — Prepaid phonecards displaying information for making international calls — Marketing through a network of distributors)

text:
               16.6.2012

               EN

               Official Journal of the European Union

               C 174/9

         Judgment of the Court (Third Chamber) of 3 May 2012 (reference for a preliminary ruling from the First-Tier Tribunal (Tax Chamber) — United Kingdom) — Lebara Ltd v Commissioners for Her Majesty’s Revenue and Customs
   (Case C-520/10) (1)

   (Taxation - Sixth VAT Directive - Article 2 - Supply of services for consideration - Telecommunications services - Prepaid phonecards displaying information for making international calls - Marketing through a network of distributors)
   2012/C 174/11
   Language of the case: English

      Referring court

   First Tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicant: Lebara Ltd

      Defendant: Commissioners for Her Majesty’s Revenue and Customs

      Re:

   Reference for a preliminary ruling — First-Tier Tribunal (Tax Chamber) — Interpretation of Article 2(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Phonecards sold by a taxable person residing in a Member State to a distributor residing in another Member State and sold on by that distributor to persons who use them to make telephone calls — Transaction which can be broken down into several parts — Arrangements for charging value added tax

      Operative part of the judgment

   Point (1) of Article 2 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2003/92/EC of 7 October 2003, must be interpreted as meaning that a telecommunications services operator which offers telecommunications services consisting in selling to a distributor phonecards which display all the information necessary for making international telephone calls by means of the infrastructure provided by that operator and which are resold by the distributor, in its name and on its own behalf, to end users, either directly or through other taxable persons such as wholesalers or retailers, carries out a supply of telecommunications services for consideration to the distributor. On the other hand, that operator does not carry out a second supply of services for consideration, this time to the end user, where that user, having purchased the phonecard, exercises the right to make telephone calls using the information on the card.

      (1)  OJ C 30, 29.1.2011.


title: Case T-673/15: Action brought on 19 November 2015 — Guardian Europe v European Union

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/23

         Action brought on 19 November 2015 — Guardian Europe v European Union
   (Case T-673/15)
   (2016/C 059/26)
   Language of the case: English

      Parties

      Applicant: Guardian Europe Sàrl (Bertrange, Luxembourg) (represented by: F. Louis, lawyer, and C. O’Daly, Solicitor)

      Defendants: European Union represented by the European Commission and the Court of Justice of the European

      Form of order sought

   The applicant claims that the Court should:

               —

               (1) order that the applicant be compensated for the following damages caused as a result of the General Court’s failure to rule within a reasonable time: (a) guarantee costs of EUR 936 000; (b) opportunity costs/loss of profit of EUR 1 671 000; and (c) non-pecuniary losses of EUR 14,8 million;

               —

               (2) award interest on the amounts sought under (1) above, in so far as relevant, at the average rate applied by the European Central Bank at the relevant time to its main refinancing operations, increased by two percentage points;

               —

               (3) order that the applicant be compensated for damages caused as a result of the Commission and the General Court’s infringement of the principle of equal treatment namely the following amounts: (a) guarantee costs of EUR 1 547 000; (b) opportunity costs/loss of profit of EUR 9 292 000; and (c) non-pecuniary losses of EUR 14,8 million;

               —

               (4) award interest on the amounts sought under (3) above, in so far as relevant, at the average rate applied by the European Central Bank at the relevant time to its main refinancing operations, increased by two percentage points; and

               —

               (5) order the defendants to pay the applicant’s costs relating to its application.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the applicant has a right to damages against the European Union under Article 268 and Article 340 second paragraph of the TFEU due to the General Court’s infringement of its rights under Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms to a judgment within a reasonable time. The failure to rule within a reasonable time period caused the applicant three types of loss between 12 February 2010 and 27 September 2012: (1) increased costs related to a bank guarantee for the amount of the fine that the applicant did not immediately pay to the Commission following the adoption of decision No C(2007)5791 final of 28 November 2007 in Case COMP/39165 — Flat glass; (2) opportunity costs because the low rate of interest on the amount of the fine belatedly returned to the applicant following the Court of Justice’s judgment in 2014 was much lower than the potential return that the applicant could have achieved if, instead of paying this money to the Commission in 2008, it had invested it in its business; and (3) non-pecuniary damages due to the decision wrongly having imposed the highest fine on the applicant in November 2007 and, due to the General Court’s failure to adjudicate within a reasonable time, this only being belatedly remedied by the Court of Justice in November 2014.

               2.

               Second plea in law, alleging that the applicant has a right to damages against the European Union under Article 268 and Article 340 second paragraph of the TFEU because the European Commission and the General Court both manifestly breached the principle of equal treatment and discriminated against the applicant. Decision No C(2007)5791 final of 28 November 2007 in Case COMP/39165 — Flat glass, wrongly excluded captive sales when calculating the fines imposed on the decision’s other addressees and failed to rectify the ensuing discrimination against the applicant, which as a non-integrated producer did not have any captive sales. The General Court compounded the Commission’s mistake by upholding the decision’s exclusion of these captive sales. This error was only corrected by the Court of Justice in November 2014 when it reduced the decision’s fine by EUR 44,4 million. However, this reduction did not compensate for the damage to the applicant from November 2007 to November 2014, which was caused by it wrongfully having received an inflated fine, which suggested that it bore a particular responsibility for the flat glass cartel and also resulted in additional financial costs. The Commission’s and General Court’s unlawful act caused the applicant the same three types of loss as those outlined under the first plea in law but over the longer period from November 2007 to November 2014.


title: Case C-92/05: Order of the President of the Fifth Chamber of the Court of  26 January 2006  — Commission of the European Communities v French Republic

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/13

         Order of the President of the Fifth Chamber of the Court of 26 January 2006 — Commission of the European Communities v French Republic
   (Case C-92/05) (1)

   (2006/C 154/32)

      Language of the case: French

   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 82, 02.04.2005.


title: Case C-174/08: Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 April 2008 — NCC Construction Danmark A/S v Skatteministeriet

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/25

         Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 April 2008 — NCC Construction Danmark A/S v Skatteministeriet
   (Case C-174/08)
   (2008/C 171/37)
   Language of the case: Danish
   Referring court
   Østre Landsret
   Parties to the main proceedings

      Applicant: NCC Construction Danmark A/S

      Defendant: Skatteministeriet
   Questions referred

               1.

               Is the term ‘incidental real estate transactions’ in the second sentence of Article 19(2) of the Sixth VAT Directive (1) to be interpreted as covering the activities of a building business which is subject to VAT in connection with the subsequent sale of real estate built by the building business on its own account as an activity fully subject to VAT with a view to resale?

               2.

               For the purposes of the answer to question 1, is the extent to which the sales activities, viewed separately, entail the use of goods and services on which VAT is payable of relevance?

               3.

               Is it consistent with the VAT-law principle of neutrality for a building business which, under the legislation of the Member State in question — based on Article 5(7) and Article 6(3) of the Sixth Directive — is required to pay VAT on its internal supplies in connection with the construction of buildings on its own account with a view to subsequent sale, to have only a partial right to deduct VAT for general costs for the purposes of the building business, given that the subsequent sale of the real estate is, under the Member State's VAT legislation, exempt from VAT on the basis of Article 28(3)(b) of the Sixth VAT Directive, read in conjunction with point 16 of Annex F?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case F-33/09: Judgment of the Civil Service Tribunal (First Chamber) of 9 March 2010 — Tzvetanova v Commission (Staff cases — Temporary staff — Remuneration — Expatriation allowance — Conditions laid down in Article 4 of Annex VII to the Staff Regulations — Habitual residence before entering the service — Stay as a student in the place of employment — Training periods outside the place of employment during the reference period — Account taken of actual residence)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/52

         Judgment of the Civil Service Tribunal (First Chamber) of 9 March 2010 — Tzvetanova v Commission
   (Case F-33/09) (1)

   (Staff cases - Temporary staff - Remuneration - Expatriation allowance - Conditions laid down in Article 4 of Annex VII to the Staff Regulations - Habitual residence before entering the service - Stay as a student in the place of employment - Training periods outside the place of employment during the reference period - Account taken of actual residence)
   2010/C 134/86
   Language of the case: French

      Parties

      Applicant: Aglika Tzvetanova (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É.. Marchal, lawyers)

      Defendant: European Commission (represented by: D. Martin and J. Baquero Cruz, Agents, later by J. Currall and J. Baquero Cruz, Agents)

      Re:

   Annulment of the decision of the Commission to refuse the applicant the benefit of the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the European Commission of 10 July 2008 refusing Ms Tzvetanova the benefit of the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations;

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 129 of 06. 06. 2009, p. 22.


title: Case C-218/14: Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 5 May 2014 — Kuldip Singh, Denzel Nnjume, Khaled Aly v Minister for Justice and Equality

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/7

         Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 5 May 2014 — Kuldip Singh, Denzel Nnjume, Khaled Aly v Minister for Justice and Equality
   (Case C-218/14)
   2014/C 223/10
   Language of the case: English

      Referring court

   High Court of Ireland

      Parties to the main proceedings

      Applicants: Kuldip Singh, Denzel Nnjume, Khaled Aly

      Defendant: Minister for Justice and Equality

      Interested party: The Immigrant Council of Ireland

      Questions referred

               1.

               Where marriage involving EU and non-EU citizens ends in divorce obtained following departure of the EU citizen from a host Member State where EU rights were exercised by the EU citizen, and where Articles 7 and 13(2)(a) of Council Directive 2004/38/EC (1) apply, does the non-EU citizen retain a right of residence in the host Member State thereafter? If the answer is ‘no’, does the non-EU citizen have a right of residence in the host Member State during the period before divorce following departure of the EU citizen from the host Member State?

               2.

               Are the requirements of Article 7(1)(b) of Directive 2004/38/EC met where an EU citizen spouse claims to have sufficient resources within the meaning of Article 8(4) of the Directive partly on the basis of the resources of the non-EU citizen spouse?

               3.

               If the answer to the second question is ‘no’, do persons such as the applicants have rights under EU law (apart from the Directive) to work in the host Member State in order to provide or contribute to ‘sufficient resources’ for the purposes of Article 7 of the Directive?

      (1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC OJ L 158, p. 77


title: Case T-64/06: Action brought on  23 February 2006  — FLS Plast v Commission

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/24

         Action brought on 23 February 2006 — FLS Plast v Commission
   (Case T-64/06)
   (2006/C 96/42)
   Language of the case: English
   Parties

      Applicant: FLS Plast A/S (Copenhagen, Denmark) [represented by: K. Lasok, QC, and M. Thill-Tayara, lawyer]

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Articles 1(h) and 2(f) of the Contested Decision of the Commission, no. C(2005)4634, of 30 November 2005, in case COMP/F/38.354 — Industrial bags in its entirety, insofar as they apply to the applicant;

               —

               alternatively, amend Article 2(f) of the Contested Decision and substantially reduce the amount of the fine imposed jointly and severally on FLP Plast in exercise of the Court's unlimited jurisdiction, annul in part Article 1(1) insofar as it relates to the applicants and annul in part, or alternatively, reduce as appropriate the fine imposed by Article 2 on the applicants;

               —

               order the Commission to pay FLS Plast's legal and other costs and expenses in relation to this matter.

         Pleas in law and main arguments
   By the Contested Decision the Commission found that the applicant had infringed Article 81 EC by participating in a complex of agreements and concerted practices in the plastic industrial bags sector, affecting Belgium, France, Germany, Luxembourg, the Netherlands and Spain, consisting in the fixing of prices and the establishment of common price calculation models, the sharing of markets and the allocation of sales quotas, the assignment of customers, deals and orders, the submission of concerted bids in response to certain invitations to tender and the exchange of individualised information. The applicant's infringement related to the conduct of another company, Trioplast Wittenheim SA (‘TW’), which was found to have participated in the cartel in question. The applicant had owned shares of TW and, for most of the period for which the applicant was found liable, TW was its wholly owned subsidiary. A fine was imposed on TW, and the applicant was made jointly and severally liable for part of that fine.
   Without contesting the existence and duration of the cartel or the participation of its former subsidiary, the applicant contends that the Commission erred in law in determining the amount of the fine it imposed on it. The applicant points out that the part of the fine on TW for which the applicant was made liable is manifestly disproportionate to the period during which it held shares in TW.
   The applicant further submits that the Contested Decision violates the principles of non-discrimination and proportionality, to the extent that it held both the applicant and its own parent company liable for TW's conduct, even though it decided not to address the Contested Decision to intermediate holding companies and did not, in fact, address it to such companies other than the applicant.
   The applicant also submits that it was not aware of TW's unlawful conduct, did not exercise influence over its management and was not part of the undertaking (TW) involved in the infringements referred to in the Contested Decision and that, therefore, the Contested Decision is unlawful and should be annulled.
   In the alternative, the applicant requests the Court to reduce the amount of the fine, in exercise of its unlimited jurisdiction. In this context, it puts forward that the fine imposed on TW was too high since past practice and the gravity of the infringement do not justify the level of the basic amount of the fine; that the Commission erred in determining the duration of the infringement for TW; and that the Commission failed to assess whether the fines imposed on TW and the applicant complied with the 10 % ceiling rule.
   With regard to the fine imposed on itself, the applicant also contends that it is disproportionately high, taking into account the lack of deterrent effect, the duration and the intensity of the infringement. Further, the applicant argues that the Commission erred in failing to reduce its liability in accordance with the Leniency Notice, more particularly by failing to pass the 30 % reduction granted to TW on to the applicant's own liability and refusing to grant the applicant a reduction. Finally, the applicant invokes the violation of the principle non bis in idem and the principle according to which penalties should relate to the specific circumstances of each applicant; in this context, it points out that although it was the parent company of TW for only 35 % of the period of the latter's involvement in the cartel, it was made liable to pay 85.7 % of TW's fine.


title: Case T-98/02: Action brought on 3 April 2002 by Maddalena Lebebef-Caponi against the Commission of the European Communities

text:
15.6.2002              EN                     Official Journal of the European Communities                                      C 144/55
Action brought on 28 March 2002 by Michael Hohen-                        Action brought on 3 April 2002 by Maddalena Lebebef-
bichler against the Commission of the European Com-                      Caponi against the Commission of the European Com-
                             munities                                                                 munities
                          (Case T-95/02)                                                           (Case T-98/02)
                        (2002/C 144/108)
                                                                                (2002/C 144/109)
                   (Language of the case: French)
                                                                                (Language of the case: French)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               An action against the Commission of the European Communi-
European Communities on 28 March 2002 by Michael                         ties was brought before the Court of First Instance of the
Hohenbichler, residing in Brussels, represented by Jean-Noël             European Communities on 3 April 2002 by Maddalena
Louis, lawyer, with an address for service in Luxembourg.                Lebedef-Caponi, of Senningerberg, Luxembourg, represented
                                                                         by Gille Bounéou, lawyer, with an address for service in
                                                                         Luxembourg.
The applicant claims that the Court should:
—     annul the Commission’s decision establishing the calcu-            The applicant claims that the Court should:
      lation of the number of years of pensionable service
      under the Staff Regulations to be taken into account
      pursuant to Article 11(2) of Annex VIII thereto;                   —     annul the applicant’s staff report for the period 1995 to
                                                                               1997;
—     order the Commission to pay the costs.
                                                                         —     rule on costs; the expenses and fees should be borne by
                                                                               the defendant.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
The applicant in the present case, an official of the defendant
institution, is contesting the way in which the appointing
authority has calculated the number of years of pensionable
service to be taken into account in the context of the transfer          The applicant who is an official at the Commission objects to
to the Community pension scheme of all the pension rights                the dismissal of her claim for annulment of her staff report for
acquired by him prior to his entry into the service of the               the period 1995 to 1997.
Communities.
                                                                         In support of her action she relies on an infringement of the
In support of his claims, the applicant pleads infringement of:          last paragraph of Article 1 of Annex II of the Staff Regulations,
                                                                         infringement of the second paragraph of Article 13 of
                                                                         Framework Agreement governing relations between the Com-
—     Article 11(2) of Annex VIII to the Staff Regulations;              mission of the unions and professional organisations and
                                                                         infringement of the first and second paragraphs of Article 15
                                                                         of the Framework Agreement. She argues that some of the
—     the general provisions for the implementation of
                                                                         findings are not justified and that there are various errors and
      Article 11(2) of Annex VIII to the Staff Regulations;
                                                                         omissions in the staff report. In addition, she argues that she
                                                                         suffered psychological harassment during the time when she
—     the principle of equal treatment.                                  was acting as a staff representative.


title: Case T-593/15: Action brought on 14 October 2015 — The Art Company B & S v OHIM — G-Star Raw (THE ART OF RAW)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/36

         Action brought on 14 October 2015 — The Art Company B & S v OHIM — G-Star Raw (THE ART OF RAW)
   (Case T-593/15)
   (2015/C 414/47)
   Language in which the application was lodged: English

      Parties

      Applicant: The Art Company B & S, SA (Quel, Spain) (represented by: J. Villamor Muguerza and L. Sánchez Calderón, lawyers)

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

      Other party to the proceedings before the Board of Appeal: G-Star Raw CV (Amsterdam, Netherlands)

      Details of the proceedings before OHIM

      Applicant: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community word mark ‘THE ART OF RAW’ — Application for registration No 11 093 036

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 9 July 2015 in Case R 1980//2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM as well as the CTMA Applicant (in case it intervenes) to pay the costs of the present Appeal.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Judgment of the Court (Sixth Chamber) of 3 May 2001 in Case C-481/98: Commission of the European Communities v French Republic (Failure by a Member State to fulfil its obligations — Sixth VAT Directive — Articles 12(3)(a) and 28(2)(a) — Reduced rate)

text:
C 200/10                EN                      Official Journal of the European Communities                                           14.7.2001
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                          (Sixth Chamber)                                                             (Sixth Chamber)
                                                                                of 3 May 2001
                           of 3 May 2001
                                                                           in Case C-28/99 (reference for a preliminary ruling from
in Case C-481/98: Commission of the European Communi-                      the Rechtbank van Eerste Aanleg te Gent, Belgium):
                     ties v French Republic (1)                            criminal proceedings against Jean Verdonck, Ronald
                                                                                Everaert and Edith de Baedts (1)
(Failure by a Member State to fulfil its obligations — Sixth               (Directive 89/592/EEC — National rules on insider dealing
VAT Directive — Articles 12(3)(a) and 28(2)(a) — Reduced                   — Power of Member States to adopt more stringent pro-
                                rate)                                      visions — Definition of national provisions applied gener-
                                                                                ally)
                          (2001/C 200/17)
                                                                                (2001/C 200/18)
                    (Language of the case: French)
                                                                                (Language of the case: Dutch)
(Provisional translation; the definitive translation will be published     (Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                               in the European Court Reports)
                                                                           In Case C-28/99: reference to the Court under Article 177 of
In Case C-481/98: Commission of the European Communities
                                                                           the EC Treaty (now Article 234 EC) from the Rechtbank van
(Agent: E. Traversa, acting as Agent, assisted by N. Coutrelis) v
                                                                           Eerste Aanleg te Gent, Belgium, for a preliminary ruling in the
French Republic (Agents: K. Rispal-Bellanger and S. Seam),
                                                                           criminal proceedings pending before that court between Jean
supported by Republic of Finland (Agents: H. Rotkirch and
                                                                           Verdonck, Ronald Everaert and Edith De Baedts — on the
T. Pynnä) — application for a declaration that, by introducing
                                                                           interpretation of Article 6 of Council Directive 89/592/EEC of
and maintaining in force legislation relating to value added tax
                                                                           13 November 1989 coordinating regulations on insider deal-
which provides for a rate of 2,1 % to be charged on medicinal
                                                                           ing (OJ 1989 L 334, p. 30) — the Court (Sixth Chamber),
products reimbursable under the social security system, where-
                                                                           composed of: C. Gulmann, President of the Chamber, V. Skour-
as other medicinal products are taxed at the reduced rate of
                                                                           is, J.-P. Puissochet (Rapporteur), R. Schintgen and F. Macken,
5,5 %, the French Republic has failed to fulfil its obligations
                                                                           Judges; P. Léger, Advocate General; H.A. Rühl, Principal
under Article 12 of Sixth Council Directive 77/388/EEC of
                                                                           Administrator, for the Registrar, has given a judgment on
17 May 1977 on the harmonisation of the laws of the Member
                                                                           3 May 2000, in which it has ruled:
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment (OJ 1977 L 145, p. 1)
— the Court (Sixth Chamber), composed of: C. Gulmann,                      1.     Article 6 of Directive 89/592/EEC of 13 November 1989
President of the Chamber, V. Skouris, J.-P. Puissochet,                           coordinating regulations on insider dealing does not preclude
R. Schintgen and N. Colneric (Rapporteur), Judges; J. Mischo,                     the application of legislative provisions of a Member State
Advocate General; L. Hewlett, Administrator, for the Registrar,                   which, as regards the prohibition of use of inside information,
has given a judgment on 3 May 2001, in which it:                                  are more stringent than those laid down by the directive,
                                                                                provided that the scope of the definition of inside information
                                                                                used for applying that legislation is the same for all natural or
1.    Dismisses the action;                                                       legal persons subject to the legislation.
                                                                           2.     If provisions of national law run counter to Article 6 of
2.    Orders the Commission of the European Communities to pay
                                                                                Directive 89/592, by reason of the fact that certain natural or
      the costs;
                                                                                legal persons are specifically exempted from a more stringent
                                                                                prohibition of use of inside information than that laid down by
3.    Orders the Republic of Finland to bear its own costs.                       the directive, the national court must disapply those more
                                                                                stringent provisions with regard to all persons to whom they
                                                                                might otherwise apply.
(1) OJ C 48 of 20.2.1999.
                                                                           (1) OJ C 121 of 1.5.1999.


title: Case C-348/09: Judgment of the Court (Grand Chamber) of 22 May 2012 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — P. I. v Oberbürgermeisterin der Stadt Remscheid (Freedom of movement for persons — Directive 2004/38/EC — Article 28(3)(a) — Expulsion decision — Criminal conviction — Imperative grounds of public security)

text:
               7.7.2012

               EN

               Official Journal of the European Union

               C 200/2

         Judgment of the Court (Grand Chamber) of 22 May 2012 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — P. I. v Oberbürgermeisterin der Stadt Remscheid
   (Case C-348/09) (1)

   (Freedom of movement for persons - Directive 2004/38/EC - Article 28(3)(a) - Expulsion decision - Criminal conviction - Imperative grounds of public security)
   2012/C 200/02
   Language of the case: German

      Referring court

   Oberverwaltungsgericht für das Land Nordrhein-Westfalen

      Parties to the main proceedings

      Applicant: P. I.

      Defendant: Oberbürgermeisterin der Stadt Remscheid

      Re:

   Reference for a preliminary ruling — Oberverwaltungsgericht für das Land Nordrhein-Westfalen, Münster — Interpretation of Article 28(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Expulsion decision taken on grounds of public security against a European citizen who has resided for the previous 10 years in the host Member State and is facing a prison sentence — Definition of ‘imperative grounds of public security’

      Operative part of the judgment

   Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that it is open to the Member States to regard criminal offences such as those referred to in the second subparagraph of Article 83(1) TFEU as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus be covered by the concept of ‘imperative grounds of public security’, capable of justifying an expulsion measure under Article 28(3), as long as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.
   The issue of any expulsion measure is conditional on the requirement that the personal conduct of the individual concerned must represent a genuine, present threat affecting one of the fundamental interests of society or of the host Member State, which implies, in general, the existence in the individual concerned of a propensity to act in the same way in the future. Before taking an expulsion decision, the host Member State must take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into that State and the extent of his/her links with the country of origin.

      (1)  OJ C 282, 21.11.2009.


title: Case T-256/06: Judgment of the Court of First Instance of 5 November 2008 — Neoperl Servisys AG v OHIM (HONEYCOMB) (Community trade mark — Application for the Community word mark HONEYCOMB — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94)

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/22

         Judgment of the Court of First Instance of 5 November 2008 — Neoperl Servisys AG v OHIM (HONEYCOMB)
   (Case T-256/06) (1)

   (Community trade mark - Application for the Community word mark HONEYCOMB - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94)
   (2008/C 327/39)
   Language of the case: German
   Parties

      Applicant: Neoperl Servisys AG (Reinach, Switzerland) (represented by: H. Börjes-Pestalozza, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: R. Pethke, acting as Agent)
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 17 July 2006 (Case R 1388/2005-4) concerning an application to register the word mark HONEYCOMB as a Community trade mark.
   Operative part of the judgment
   The Court:

               1.

               dismisses the action;

               2.

               orders Neoperl Servisys AG to pay the costs.

      (1)  OJ C 261 of 28.10.2006.


title: Case C-119/12: Judgment of the Court (Third Chamber) of 22 November 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Josef Probst v mr.nexnet GmbH (Electronic communications — Directive 2002/58/EC — Article 6(2) and (5) — Processing of personal data — Traffic data necessary for billing and debt collection — Debt collection by a third company — Persons acting under the authority of the providers of public communications networks and electronic communications services)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/15

         Judgment of the Court (Third Chamber) of 22 November 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Josef Probst v mr.nexnet GmbH
   (Case C-119/12) (1)

   (Electronic communications - Directive 2002/58/EC - Article 6(2) and (5) - Processing of personal data - Traffic data necessary for billing and debt collection - Debt collection by a third company - Persons acting under the authority of the providers of public communications networks and electronic communications services)
   2013/C 26/26
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Josef Probst

      Defendant: mr.nexnet GmbH

      Re:

   Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 6(2) and (5) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37) — Passing of traffic data relating to subscribers and users, processed and held by the provider of a public communications network — National legislation permitting such data to be passed to the assignee of a claim for payment in respect of telecommunications services, in the case where contractual stipulations safeguard confidential treatment of the data passed and make it possible for each party to check that the other has ensured that those data are protected

      Operative part of the judgment

   Article 6(2) and (5) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) must be interpreted as authorising a provider of public communications networks and of publicly-accessible electronic communications services to pass traffic data to the assignee of its claims for payment in respect of the supply of telecommunications services for the purpose of recovery of those claims, and as authorising that assignee to process those data on condition, first, that the latter acts under the authority of the service provider as regards the processing of those data and, second, that that assignee confines itself to processing the traffic data necessary for the purposes of recovering the claims assigned.
   Irrespective of the classification of the contract of assignment, the assignee is deemed to act under the authority of the service provider, within the meaning of Article 6(5) of Directive 2002/58, where, for the processing of traffic data, it acts exclusively on the instructions and under the control of that provider. In particular, the contract concluded between them must contain provisions capable of guaranteeing the lawful processing, by the assignee, of the traffic data and of enabling the service provider to ensure, at all times, that that assignee is complying with those provisions.

      (1)  OJ C 174, 16.06.2012.


title: Judgment of the Court (Sixth Chamber) of 8 September 2005 in Case C-57/05: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2002/46/EC — Harmonisation of the laws of the Member States in respect of food supplements — Failure to implement within the prescribed time-limit)

text:
               29.10.2005

               EN

               Official Journal of the European Union

               C 271/11

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 8 September 2005
   in Case C-57/05: Commission of the European Communities v French Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/46/EC - Harmonisation of the laws of the Member States in respect of food supplements - Failure to implement within the prescribed time-limit)
   (2005/C 271/21)
   Language of the case: French
   In Case C-57/05 Commission of the European Communities (Agent: J.-P. Keppene) v French Republic (Agent: G. de Bergues, E. Belliard and R. Loosli-Surrans) — action for failure to fulfil obligations under Article 226 EC, brought on 9 February 2005 — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, S. von Bahr and A. Ó Caoimh (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 8 September 2005, in which it:

               1.

               Declares that, By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements, the French Republic has failed to fulfil its obligations under that directive;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 82 of 02.04.2005.


               29.3.2007

               EN

               Official Journal of the European Union

               C 72/48

         Action brought on 15 November 2006 by the EFTA Surveillance Authority against the Principality of Liechtenstein
   (Case E-5/06)
   (2007/C 72/23)
   An action against the Principality of Liechtenstein was brought before the EFTA Court on 15 November 2006 by the EFTA Surveillance Authority, represented by Niels Fenger and Arne Torsten Andersen, acting as Agents of the EFTA Surveillance Authority, 35, Rue Belliard, B-1040 Brussels.
   The applicant claims that the Court should:

               1.

               Declare that by applying a requirement of residence in Liechtenstein for the entitlement to helplessness allowance, the Principality of Liechtenstein has failed to fulfil its obligations pursuant to Articles 19(1) and (2), 25(1) and 28(1) of the Act referred to at point 1 of Annex VI to the EEA Agreement (Council Regulation EEC No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community), as adapted to the EEA Agreement by Protocol 1 thereto; and

               2.

               Order the Principality of Liechtenstein to bear the costs of the proceedings.

         Legal and factual background and pleas in law adduced in support:

               —

               The present case concerns the Liechtenstein Hilflosenentschädigung, (helplessness allowance) for persons who permanently require a considerable degree of help from a third person or personal surveillance to carry out daily tasks. The allowance is not supplementing any other social security benefit, and is granted without regard to income. The allowance is not linked to past contributions to the State, and the recipient is not required to suffer from a sickness.

               —

               Liechtenstein law requires that the recipient of the allowance reside in Liechtenstein.

               —

               The Liechtenstein helplessness allowance is listed in Annex IIa to Regulation 1408/71 (cf. Articles 4(2a)(c) and 10a of the Regulation) as a special non-contributory cash benefit, which would as such not be an exportable benefit under the Regulation.

               —

               The EFTA Surveillance Authority pleads, however, that the correct classification of the helplessness allowance would be as a sickness benefit in cash (cf. Article 4(1) of the Regulation), exportable in accordance with Articles 19 (1) and (2), 25 (1) and 28 (1) of the Regulation.

               —

               The correct classification of the allowance is decisive as to whether the Principality of Liechtenstein is obliged to grant the benefit to applicants residing outside Liechtenstein but otherwise fulfilling the relevant criteria as set out in the Regulation.