title: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Firenze by order of that court of 23 January 1997 in the case of CSAR Centro Servizi Acciai Rivestiti SpA against Direzione Regionale per le Entrate della Toscana and Ufficio delle Imposte Dirette di Firenze (Case C-13/98)

text:
28.3.98               EN                 Official Journal of the European Communities                                     C 94/7
Westbroek, Brussels, with an address for service in                 Azienda Agricola Le Canne' Srl, represented by Giulio
Luxembourg at the Chambers of Aloyse May, 31 Grand                  Schiller, Giuseppe Carraro and Francesca Mazzonetto, of
Rue.                                                                the Padua Bar, with an address for service in Luxembourg
                                                                    at the Chambers of the last named, 62 Avenue Guillaume.
The appellants claim that the Court should:
                                                                    The appellant claims that the Court should:
Ð set aside the judgment of the Court of First Instance of
    the European Communities of 24 October 1997 (1) in
                                                                    Ð set aside the contested judgment of the Court of First
    Case T-244/94 Wirtschaftsvereinigung Stahl and
                                                                         Instance and uphold the claims put forward by the
    Others v. Commission,
                                                                         applicant at first instance,
Ð annul Commission Decision 94/259/ECSC of 12 April
    1994 concerning aid to be granted by Italy to the               Ð declare null and void the Commission's                telex
    public steel sector (Ilva group) (OJ L 112, 3.5.1994,                No 12 497 of 27 October 1995,
    p. 64),
                                                                    Ð order the Commission to pay restitution for damage
Ð order the Commission to pay the costs.                                 suffered in the amount set out in the application,
Pleas in law and main arguments adduced in support:                 Ð order the Commission to pay the costs incurred at first
                                                                         instance and in the appeal.
Infringement of Community law by the Court of First
Instance, in that it
                                                                    Pleas in law and main arguments adduced in support:
Ð misinterpreted the validity and scope of the Fifth Steel
    Aid Code,                                                       The applicant maintains that the Court of First Instance
                                                                    was wrong to consider that the principle of collegiality
Ð failed sufficiently to take into account that State               was observed. The Court of First Instance should have
    subsidies are no longer indispensable' to attain               declared the rules of procedure of the Commission
    objectives of the ECSC Treaty if they are granted more          inapplicable in so far as they allowed the acting head of
    than once only,                                                 unit to take the decision in question on his own authority.
Ð took no account of the fact that the contested                    It further maintains that the grounds of the Court of First
    Commission decision discloses a serious error of                Instance as to infringement of the principle of the right to
    assessment by the Commission simply because the                 be heard and infringement of the obligation to provide a
    decision makes its aim the strengthening of the Italian         statement of reasons were erroneous and inconsistent.
    steel industry,
                                                                    Finally, it maintains that the Court of First Instance
Ð proceeded from the incorrect assumption that                      infringed and misapplied Articles 44(1) and 47 of
    Article 4(c) of the ECSC Treaty does not impose a               Regulation (EEC) No 4028/86 (2) and Article 7 of
    strict prohibition of aid, but permits the Community            Regulation (EEC) No 1116/88 (3).
    institutions to approve all aid which may contribute to
    attaining the objectives of the Treaty.
                                                                    (1) OJ C 77, 16.3.1996, p. 11.
                                                                    (2) OJ L 376, 31.12.1986, p. 7.
( ) OJ C 387, 20.12.1997, p. 16.
 1
                                                                    (3) OJ L 112, 30.4.1988, p. 1.
Appeal brought on 16 January 1998 by Azienda Agricola
Le Canne' Srl, a company incorporated under Italian law,           Reference for a preliminary ruling by the Commissione
established in Porto Viro, against the judgment delivered           Tributaria Provinciale di Firenze by order of that court of
on 7 November 1997 by the Court of First Instance of the            23 January 1997 in the case of CSAR Centro Servizi
European Communities in Case T-218/95 between                       Acciai Rivestiti SpA against Direzione Regionale per le
Azienda Agricola Le Canne' Srl and Commission of the               Entrate della Toscana and Ufficio delle Imposte Dirette di
                    European Communities                                                         Firenze
                       (Case C-10/98 P)                                                      (Case C-13/98)
                         (98/C 94/14)                                                         (98/C 94/15)
An appeal against the judgment delivered on 7 November              Reference has been made to the Court of Justice of the
1997 by the Court of First Instance of the European                 European Communities by order of the Commissione Tri-
Communities in Case T-218/95 (1) between Azienda Agri-              butaria Provinciale di Firenze (Provincial Tax Court,
cola Le Canne' Srl and Commission of the European                  Florence) of 23 January 1997, which was received at the
Communities was brought before the Court of Justice of              Court Registry on 20 January 1998, for a preliminary
the European Communities on 16 January 1998 by                      ruling in the case of CSAR Centro Servizi Acciai Rivestiti
 ---pagebreak--- C 94/8                 EN                     Official Journal of the European Communities                                   28.3.98
SpA against Direzione Regionale per le Entrate della                        the contested decision. When it became aware that the
Toscana and Ufficio delle Imposte Dirette di Firenze on                     amendment to Regional Law No 9 had been made
the following question:                                                     before the procedure was under way, the Commission
                                                                            decided to make a further separation and held that
Is a statutory tax on the net assets of companies with                      that Law marked another, fresh aid scheme, with
share capital which has effects economically equivalent to                  effect from 1996, to be considered separately. The
those of an indirect tax on capital contributions                           Italian Government and the parties concerned did not
compatible with Community law and in particular with                        become aware of this latter development until the
Directive 69/335/EEC (1)                                                    decision was notified to them. It should have been
                                                                            communicated beforehand inasmuch as it amounted to
(1) OJ, English Special Edition 1969 (II), p. 412.                          an amendment to the subject matter of the procedure.
                                                                            Failure to notify of this amendment timeously
                                                                            prevented not only the Italian Government but also
                                                                            the other interested parties from submitting relevant
                                                                            and effective comments in order to protect their
                                                                            respective interests.
      Action brought on 22 January 1998 by the Italian
      Republic against the Commission of the European                    2. Infringement of Article 93 of the Treaty in that a
                          Communities                                       distinction has been made between new and existing
                                                                            aid Ð Unlawful treatment of existing aid as new aid
                         (Case C-15/98)                                     Ð Assessment of aid as new vitiated by manifest
                          (98/C 94/16)                                      errors.
                                                                            Where amendments made to an existing scheme have
An action against the Commission of the European
                                                                            not been communicated, aid granted after such
Communities was brought before the Court of Justice of
                                                                            amendments may be deemed unlawful inasmuch as
the European Communities on 22 January 1998 by the
                                                                            they are contrary to Article 93(3) of the Treaty only if
Italian Republic, represented by Umberto Leanza and by
                                                                            such amendments have had a decisive effect on the
Pier Giorgio Ferri, Avvocato dello Stato, with an address
                                                                            compatibility of the aid. Part III of the decision took
for service in Luxembourg at the Italian Embassy, 5 Rue
                                                                            into consideration the factors listed in paragraphs (a)
Marie-AdeÂlaïde.
                                                                            to (e) in order to ascertain whether the aid granted
                                                                            after the 1988 Regional Law is new.
The applicant claims that the Court should:
                                                                            So far as concerns (a) relating to the condition that the
Ð annul, pursuant to Article 173 of the EC Treaty, the                      undertaking should be established in Sardinia, the
     decision of 21 October 1997 (1),                                       Commission made a serious and manifest error in
                                                                            ascribing to the Regional Law of 1988 the provision
Ð make an appropriate order in respect                     of  the          that the undertaking should have its head office and
     Commission's letter of 14 November 1997,                               its port of registration in Sardinia. This is not a new
                                                                            element because it was already provided for in the
Ð order the EC Commission to pay the costs.                                 1951 Law as amended in 1954.
Pleas in law and main arguments adduced in support:                         This error is also reflected in the assessment made of
                                                                            the importance of the other elements dealt with under
The Italian Government considers the Commission's                           letters (b) to (d).
decision of 21 October 1997 caused it harm and is
unlawful on the following grounds:                                       3. The assessment as to compatibility of the aid for the
                                                                            purposes of Article 92(1) was not carried out, is
                                                                            insufficient, inadequate or, in any event, unreasoned.
1. Unlawfulness of the determination adopted in the
     contested decision and enacted by way of the
     Commission's letter of 14 November 1997, relating to                   The Commission has altogether failed to take a view
     Regional Law No 9 of 15 February 1996 Ð                                on whether the aid is likely to distort or threaten to
     Infringement of the procedural rules.                                  distort competition. So far as concerns the other
                                                                            ground of incompatibility, that is to say the effect on
                                                                            trade between Member States, the Commission puts
     The Commission has not given any explanation as to
                                                                            forward reasons which are barely comprehensible,
     why it chose to make a single aid scheme, albeit
                                                                            illogical and in any event seriously inadequate.
     amended over time, subject to two different
     procedures. The Commission's choice is not only
     unjustified, it appears inappropriate to the aim of                 4. Unlawful assessment of the aid of the purposes of
     ensuring the correct and transparent exercise of its                   Article 92(3)(a) and (c) of the Treaty.
     power to check whether aid is compatible with the
     common market. Instead, the Commission creates                         After concluding that the aid scheme is incompatible
     confusion and makes the assessment process uncertain,                  within the meaning of Article 92(1) on the ground that
     contributing considerably to the unlawfulness vitiating                if affects trade between the Member States, the


title: ORDER OF THE COURT OF FIRST INSTANCE of 8 December 1998 in Case T-39/98: Sadam Zuccherifici Divisione della SECI SpA and Others v Council of the European Union (Regulation (EC) No 2613/97 - Provision abolishing national aid to sugar beet producers with effect from the marketing year 2001/2002 - Action for annulment - Inadmissibility)

text:
C 71/26                EN                 Official Journal of the European Communities                                  13.3.1999
and Guus Houttuin), supported by Kingdom of Spain                    Lucera (Italy), represented by Luigi Filippo Paolucci and
(Agent: Rosario Silva de Lapuerta) and Commission of the             Gian Piero Galletti, of the Bologna Bar, with an address
European Communities (Agent: Thomas van Rijn) Ð                      for service in Luxembourg at the Chambers of ArseÁne
application, in Case T-163/97, first, for annulment of               Kronshagen, 22 Rue Marie-Adelaïde, v Council of the
Commission Regulation (EC) No 764/97 of 23 April 1997                European Union (Agents: John Carbery and Antonio
introducing safeguard measures in respect of imports of              Tanca) Ð application for annulment of Article 2 of
rice originating in the overseas countries and territories           Council Regulation (EC) No 2613/97 of 15 December
(OJ L 112, 29.4.1997, p. 3) and, secondly, for an order              1997 authorising Portugal to grant aid to sugar beet
requiring the Community to pay compensation for the                  producers and abolishing all State aid from the 2001/2002
losses allegedly suffered by the applicant following the             marketing year (OJ L 353, 24.12.1997, p. 3) Ð the Court
adoption of the abovementioned regulation and of                     (Fourth Chamber, Extended Composition), composed
Council Regulation (EC) No 1036/97 of 2 June 1997                    of: R. M. Moura Ramos, President, and R. García-
introducing safeguard measures in respect of imports of              Valdecasas, V. Tiili, P. Lindh and P. Mengozzi, Judges; H.
rice originating in the overseas countries and territories           Jung, Registrar, has made an order on 8 December 1998,
(OCTs) (OJ L 151, 10.6.1997, p. 8) and, in Case                      the operative part of which is a follows:
T-179/97, for annulment of the latter regulation Ð the
Court of First Instance (Third Chamber), composed of M.
Jaeger, President of the Third Chamber, K. Lenaerts and J.           1. The application is dismissed as inadmissible;
Azizi, Judges; H. Jung, Registrar, made an order on
16 November 1998, the operative part of which is as
follows:                                                             2. The applicants are jointly and severally to pay the
                                                                          costs.
1. Cases T-163/97 Netherlands Antilles v Council and                 (1) OJ C 137, 2.5.1998.
     Commission and T-179/97 Netherlands Antilles v
     Council, are disjoined.
2. Proceedings in T-163/97 Netherlands Antilles v
     Council and Commission are stayed pending delivery
     of the judgment of the Court of Justice in Case
                                                                          ORDER OF THE COURT OF FIRST INSTANCE
     C-301/97 Netherlands v Council.
                                                                                of 8 December 1998
3. Jurisdiction is declined in Case T-179/97 Netherlands             in Case T-39/98: Sadam Zuccherifici Divisione della SECI
     Antilles v Council, in order to enable the Court of                 SpA and Others v Council of the European Union (1)
     Justice to rule on the application for annulment.               (Regulation (EC) No 2613/97 Ð Provision abolishing
                                                                     national aid to sugar beet producers with effect from the
4. The costs are reserved.                                           marketing year 2001/2002 Ð Action for annulment Ð
                                                                                Inadmissibility)
(1) OJ C 212, 12.7.1997 and OJ C 228, 26.7.1997.                                             (1999/C 71/51)
                                                                                (Language of the case: Italian)
                                                                     In Case T-39/98: Sadam Zuccherifici Divisione della SECI
                                                                     SpA, established at Bologna (Italy), Sadam Castiglionese
     ORDER OF THE COURT OF FIRST INSTANCE
                                                                     SpA, established at Bologna, Sadam Abruzzo SpA,
                      of 8 December 1998                             established at Bologna, Zuccherificio del Molise SpA,
                                                                     established at Termoli (Italy) and SocietaÁ Fondiaria
in Case T-38/98: Associazione Nazionale Bieticoltori
                                                                     Industriale Romagnola SpA (SFIR), established at Cesena
   (ANB) and Others v Council of the European Union (1)
                                                                     (Italy), represented by Vincenzo Cerulli Irelli, of the Rome
(Regulation (EC) No 2613/97 Ð Provision abolishing                   Bar, and by Gualtiero Pittalis and Giancarlo Fanzini, of
national aid to sugar beet producers with effect from the            the Bologna Bar, with an address for service in
marketing year 2001/2002 Ð Action for annulment Ð                    Luxembourg at the Chambers of ArseÁne Kronshagen,
                         Inadmissibility)                            22 Rue Marie-Adelaïde, v Council of the European Union
                                                                     (Agents: John Carbery and Antonio Tanca) Ð application
                         (1999/C 71/50)                              for annulment of Article 2 of Council Regulation (EC)
                                                                     No 2613/97 of 15 December 1997 authorising Portugal to
                (Language of the case: Italian)                      grant aid to sugar beet producers and abolishing all State
                                                                     aid from the 2001/2002 marketing year (OJ L 353,
                                                                     24.12.1997, p. 3) Ð the Court (Fourth Chamber,
In Case T-38/98: Associazione Nazionale Bieticoltori                 Extended Composition), composed of: R. M. Moura
(ANB), established in Rome, Francesco Coccia, residing at            Ramos, President, and R. García-Valdecasas, V. Tiili,
Manfredonia (Italy), and Vincenzo Di Giovine, residing at            P. Lindh and P. Mengozzi, Judges; H. Jung, Registrar, has
 ---pagebreak--- 13.3.1999             EN                 Official Journal of the European Communities                                     C 71/27
made an order on 8 December 1998, the operative part of             the maximum guaranteed quantity, the limitation on new
which is as follows:                                                aid-eligible planting, the termination of the scheme for
                                                                    small producers and the option of private storage aid as a
                                                                    means of stabilising markets. Moreover, the adjustments
1. The application is dismissed as inadmissible;                    objected to were approved in June 1998, to come into
                                                                    force in the marketing year starting on 1 November 1998
2. The applicants are jointly and severally to pay the              and there is no provision for transitional arrangements or
     costs.                                                         phasing, nor any compensatory or complementary
                                                                    measures     which     might     palliate   the    immediate
                                                                    consequences in the sector. Also, the reforms may be
(1) OJ C 137, 2.5.1998.
                                                                    abolished or replaced within three years, the period of
                                                                    validity of the contested regulation, which of course
                                                                    creates uncertainty in the sector, which will not only have
                                                                    to adjust to the new framework of rules very quickly but
                                                                    will also lack the slightest certainty that the new
                                                                    arrangements will endure.
Action brought on 20 October 1998 by Unión de
PequenÄos Agricultores against Council of the European
                             Union                                  In support of its claims, the applicant makes the following
                                                                    submissions:
                       (Case T-173/98)
                        (1999/C 71/52)
                                                                    Ð Infringement of Article 190 of the Treaty, in that the
                                                                        reasons given by the Council are not only inadequate
               (Language of the case: Spanish)                          and insufficient but are also fundamentally
                                                                        inappropriate and contradictory. In fact, the describe
An action against the Council of the European Union was                 as mere adaptations and adjustments' measures like
brought before the Court of First Instance of the European              those mentioned above is to strain the natural
Communities on 20 October 1998 by Unión de PequenÄos                    meaning of the words unacceptably. Similarly, the
Agricultores, represented by Javier Ledesma Bartret and                 reasons given cannot be anything but unfocused given
JoseÂ Ma JimeÂnez Laiglesia y de OnÄate, both of the Madrid             the lack of reliable information for structuring the
Bar, with an address for service in Luxembourg care of                  reforms, as is expressly recognised in the first recital to
Concepción Llaser Moyano, 22 Rue Wenkelhiel                             the contested regulation.
(Dalheim).
                                                                    Ð Infringement of Article 39(1) of the Treaty, in that the
The applicant claims that the Court of First Instance                   contested     regulation    has      chosen    manifestly
should:                                                                 inappropriate means to attain the CAP objectives
                                                                        mentioned      in    that   Article.    Moreover,       the
                                                                        abovementioned regulation's sole purpose is budgetary
Ð declare this action for annulment admissible in
                                                                        containment, which, however legitimate it might be, is
     accordance with Article 173 of the Treaty;
                                                                        not included amongst those mentioned in Article 39(1).
                                                                        Finally, the applicant alleges that the Council has
Ð Declare void Council Regulation (EC) No 1638/98 of                    exceeded its margin of discretion in expressly
     20 July 1998 amending Regulation No 136/66/EEC (1)                 recognising in the first recital in the preamble to the
     on the establishment of a common organisation of the               regulation that the information used is unreliable,
     market in oils and fats, with the exception of the aid             thereby raising the question whether the future
     scheme for table olives provided for in Article 5(4) of            consequences of the measures adopted have been
     Regulation No 136/66/EEC as amended by the                         responsibly evaluated.
     regulation at issue in these proceedings; and
                                                                    Ð Infringement of Article 39(2) of the Treaty. In the
Ð Order the Council to pay the costs.                                   applicant's opinion, the Council has not taken account
                                                                        of elements which are vital to regulation of the olive
Pleas in law and main arguments adduced in support:                     oil market, and has not given reasons for the need for
                                                                        urgent reform; on the contrary it has adopted a
                                                                        measure which, in view of its urgent and peremptory
The applicant association, which represents and acts in the             nature, is absolutely exceptional.
interests of small farmers opposes the changes to the
common market organisation for olives brought about by
the contested regulation. In its view, the measures                 Ð Infringement of Article 40(3) of the Treaty, in four
contemplated in that regulation cannot be described as                  respects. First, it deals in a discriminatory manner
mere adjustments but amount to a veritable structural and               with small producers and traditional olive growers
definitive overhaul of the olive oil sector. The applicant              since they, being in circumstances different from those
refers in that connection to the elimination of intervention            of the big producers, cannot be treated in the same
and consumption aid, the adoption of a national basis for               way. Also, the contested regulation contains


title: Case T-431/07: Action brought on 26 November 2007 — Gebr. Heller Maschinenfabrik v OHIM — Fernández Martinez (HELLER)

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/24

         Action brought on 26 November 2007 — Gebr. Heller Maschinenfabrik v OHIM — Fernández Martinez (HELLER)
   (Case T-431/07)
   (2008/C 37/38)
   Language in which the application was lodged: German
   Parties

      Applicant: Gebr. Heller Maschinenfabrik (Nürtingen, Germany) (represented by: W. Kessler and S. Baur, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Manuel Fernández Martinez (Alicante, Spain)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of OHIM of 11 September 2007 in Case R 974/2006-2;

               —

               Dismiss the opposition of the other party before the Second Board of Appeal, Manuel Fernández Martinez;

               —

               Order the other party before the Board of Appeal, Manuel Fernández Martinez, to pay the costs and fees of the proceedings before the Opposition Division and the Board of Appeal of OHIM and of the present proceedings.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: The word mark ‘HELLER’ for goods and services in Classes 7, 37 and 40 (application No 3 306 602).

      Proprietor of the mark or sign cited in the opposition proceedings: Manuel Fernández Martinez.

      Mark or sign cited in opposition: Spanish figurative mark ‘HELLER’ for goods in Class 7 (No 2 520 584).

      Decision of the Opposition Division: Upheld the opposition and rejected the application.

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

      Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since there is no likelihood of confusion between the opposing marks.

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


title: Case C-7/13: Judgment of the Court (Second Chamber) of 17 September 2014 (request for a preliminary ruling from the Förvaltningsrätten i Stockholm — Sweden) — Skandia America Corporation (USA), filial Sverige v Skatteverket (Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — VAT group — Internal invoicing for services supplied by a main company with its seat in a third country to its branch belonging to a VAT group within a Member State — Whether services supplied are taxable)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/7

         Judgment of the Court (Second Chamber) of 17 September 2014 (request for a preliminary ruling from the Förvaltningsrätten i Stockholm — Sweden) — Skandia America Corporation (USA), filial Sverige v Skatteverket
   (Case C-7/13) (1)

   ((Reference for a preliminary ruling - Common system of value added tax - Directive 2006/112/EC - VAT group - Internal invoicing for services supplied by a main company with its seat in a third country to its branch belonging to a VAT group within a Member State - Whether services supplied are taxable))
   2014/C 421/09
   Language of the case: Swedish

      Referring court

   Förvaltningsrätten i Stockholm

      Parties to the main proceedings

      Applicant: Skandia America Corporation (USA), filial Sverige

      Defendant: Skatteverket

      Operative part of the judgment

               1.

               Articles 2(1), 9 and 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that supplies of services from a main establishment in a third country to its branch in a Member State constitute taxable transactions when the branch belongs to a group of persons whom it is possible to regard as a single taxable person for value added tax purposes;

               2.

               Articles 56, 193 and 196 of Directive 2006/112/EC must be interpreted as meaning that, in a situation such as that in the main proceedings where the main establishment of a company in a third country supplies services for consideration to a branch of that company in a Member State and where the branch belongs to a group of persons whom it is possible to regard as a single taxable person for value added tax purposes in that Member State, that group, as the purchaser of those services, becomes liable for the value added tax payable.

      (1)  OJ C 55, 23.2.2013.


C 274/24               EN                     Official Journal of the European Communities                                   9.11.2002
      AB Svenska Spel contends that the company had no                           Removal from the register of Case C-413/00 ( 1)
      knowledge of the databases and obtained the data for the
      pools coupons from other sources and that what                                              (2002/C 274/42)
      appeared on the pools coupons was not the whole or a
      substantial part of the fixture lists. Fixtures Marketing
      Limited, for its part, argues that it was irrelevant to the        By order of 2 July 2002 the President of the First Chamber of
      assessment whether the data were obtained from sources             the Court of Justice of the European Communities ordered the
      other than the fixture lists since the data originally came        removal from the register of Case C-413/00: Commission of
      from them.                                                         the European Communities v Kingdom of the Netherlands.
5.    How should the terms ‘normal exploitation’ and
      ‘unreasonably prejudice’ in Article 7(5) be interpreted?           (1 ) OJ C 28, 27.1.2001.
      Fixtures Marketing Limited argues that AB Svenska Spel
      has repeatedly and systematically extracted and re-utilised
      the contents of the database for commercial purposes, in
      a manner which conflicts with a normal exploitation of
      that database and thereby unreasonably prejudiced the                      Removal from the register of Case C-303/01 ( 1)
      football leagues. AB Svenska Spel, for its part, contended
      that it is wrong to look at several pools coupons together                                  (2002/C 274/43)
      in making an assessment and disputes that their use is in
      breach of Article 7(5) of the directive.
                                                                         By order of 31 July 2002 the President of the Court of Justice
( 1) OJ L 77, 27.3.1996, p. 20.                                          of the European Communities ordered the removal from the
                                                                         register of Case C-303/01: Alexandros K. Kefalas and Others v
                                                                         Elliniko Dimosio (the Greek State) and Others.
                                                                         (1 ) OJ C 56, 31.7.2002.
Removal from the register of Cases C-427/99 P ( 1) and
                           C-371/00 P (2)
                         (2002/C 274/41)
                                                                                Removal from the register of Case C-44/02 (1)
By order of 1st August 2002 the President of the Court of                                         (2002/C 274/44)
Justice of the European Communities ordered the removal
from the register of Cases C-427/99 P and C-371/00 P: RJB
Mining plc v Commission of the European Communities.                     By order of 2 July 2002 the President of the Court of Justice of
                                                                         the European Communities ordered the removal from the
                                                                         register of Case C-44/02: Commission of the European Com-
( 1) OJ C 20, 22.1.2000.                                                 munities v Portuguese Republic.
( 2) OJ C 355, 25.11.2000.
                                                                         (1 ) OJ C 97, 20.4.2002.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 1 October 1998 in Case T-155/97: Natural van Dam AG and Danser Container Line BV v. Commission of the European Communities (Inland waterway transport - Structural improvements - Conditions for bringing new vessels into service - Exclusion)

text:
21.11.98              EN                Official Journal of the European Communities                                  C 358/15
3. Orders the Kingdom of the Netherlands and the                     JUDGMENT OF THE COURT OF FIRST INSTANCE
     Council of the European Union to bear their own
     costs.                                                                            of 30 September 1998
                                                                   in Case T-164/97: Silvio Busacca and Others v. Court of
( ) OJ C 74, 8.3.1997.
 1                                                                          Auditors of the European Communities (1)
                                                                   (Officials Ð Termination of service as a result of the
                                                                   accession of new Member States Ð Act adversely affecting
                                                                   an official Ð Objection of illegality Ð Legality of
                                                                   Regulation (EC, Euratom, ECSC) No 2688/95 Ð Equal
                                                                   treatment Ð Infringement of essential procedural
                                                                   requirements Ð Prior consultation of the institutions and
                                                                               of the Staff Regulations Committee)
   JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (98/C 358/30)
                      of 1 October 1998
in Case T-155/97: Natural van Dam AG and Danser
Container Line BV v. Commission of the European                                   (Language of the case: French)
                       Communities (1)
(Inland waterway transport Ð Structural improvements Ð
Conditions for bringing new vessels into service Ð                 In Case T-164/97: Silvio Busacca and Others, officials of
                           Exclusion)                              the Court of Auditors of the European Communities,
                         (98/C 358/29)                             represented by Georges Vandersanden and Laure Levi, of
                                                                   the Brussels Bar, with an address for service in
                                                                   Luxembourg at the offices of Fiduciaire Myson SARL, 30
                                                                   Rue de Cessange, v. Court of Auditors of the European
                (Language of the case: Dutch)                      Communities (Agents: Jean-Marie Stenier, Jan Inghelram,
                                                                   Paolo Giusta and Christina Friedrich) Ð application for
                                                                   annulment of the decisions of the Court of Auditors of
                                                                   16 September 1996 rejecting the applicants' requests that
In Case T-155/97: Natural van Dam AG, established in               their names be entered on the list of persons having
Basle (Switzerland) and Danser Container Line BV,                  manifested their interest in being the subject of a decision
established in Sliedrecht (Netherlands), represented by            terminating their service as a result of the accession of
Marius J. van Dam, of the Rotterdam Bar, with an address           Austria, Finland and Sweden Ð the Court of First
for service in Luxembourg at the Chambers of Fernand               Instance (Fifth Chamber), composed of: J. Azizi, President,
Entringer, 34A rue Philippe II, against Commission of the          and R. García-Valdecasas and M. Jaeger, Judges; B. Pastor,
European Communities (Agents: initially Berend-Jan                 Principal Administrator, for the Registrar, has given a
Drijber, and subsequently Laura Pignataro and Maurits              judgment on 30 September 1998, in which it:
Lugard) Ð application for annulment of Commission
Decision SG(97) D/1862 of 7 March 1997 refusing to
grant the applicants, in respect of three vessels which they
planned to build, the exemption applied for under                  1. Annuls the decisions of the Court of Auditors of
Article 8(3)(c) of Council Regulation (EEC) No 1101/89                 16 September 1996 addressed to Silvio Busacca, Carlo
of 27 April 1989 on structural improvements in inland                  Degli Abbati, Pamela Rattigan, Gisela Tremont and
waterway transport (OJ L 116, 28.4.1989, p. 25) Ð the                  CeÂcile Vandam, rejecting their requests that their
Court of Justice (Fourth Chamber), composed of: P.                     names be entered on the list of persons having
Lindh, President, K. Lenaerts and J. D. Cooke, Judges; A.              manifested their interest in being the subject of a
Mair, Administrator, for the Registrar, gave a judgment on             decision terminating their service, as provided for by
1 October 1998, the operative part of which reads as                   Council Regulation (EC, Euratom, ECSC) No 2688/
follows:                                                               95 of 17 November 1995 introducing special measures
                                                                       to terminate the service of officials of the European
                                                                       Communities as a result of the accession of Austria,
                                                                       Finland and Sweden;
1. The application is dismissed.
                                                                   2. Orders the Court of Auditors to bear its own costs
2. The applicants are ordered to pay the costs.                        and to pay the costs of the applicants.
(1) OJ C 212, 12.7.1997.                                           (1) OJ C 212, 12.7.1997.


title: Case T-357/08: Action brought on 1 September 2008 — L'Oréal v OHIM — Allergan (BOTOCYL)

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/44

         Action brought on 1 September 2008 — L'Oréal v OHIM — Allergan (BOTOCYL)
   (Case T-357/08)
   (2008/C 272/87)
   Language in which the application was lodged: English
   Parties

      Applicant: L'Oréal SA (Clichy, France) (represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Allergan, Inc. (Irvine, United States)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 June 2008 in case R 865/2007-1;

               —

               Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of the Cancellation Division of the defendant taken on 4 April 2007 in case 1120 C;

               —

               Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and

               —

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

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘BOTOCYL’ for goods in class 3 — Community trade mark registration No 2 782 282

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Trade mark right of the party requesting the declaration of invalidity: Community trade mark registration No 2 015 832 of the figurative mark ‘BOTOX’ for goods in class 5; Community trade mark registration No 2 575 371 of the figurative mark ‘BOTOX’ for goods in class 5; Community trade mark registration No 1 923 986 of the figurative mark ‘BOTOX’ for goods in class 5 and 16; Community trade mark registration No 1 999 481 of the word mark ‘BOTOX’ for goods in class 5; various registrations of the trade mark ‘BOTOX’ in the Member States of the European Communities.

      Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

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

      Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94 as there is no proof that the earlier trade marks had reputation in the relevant point in time, as the conflicting trade marks are not sufficiently similar, as there is further no proof that the use of the registered Community trade mark subject of the application for a declaration of invalidity would be detrimental to the distinctiveness and reputation of the earlier trade marks and that there is no proof that the applicant acted without due cause when adopting the registered Community trade mark subject of the application for a declaration of invalidity; infringement of Article 73 of Council Regulation No 40/94 as the contested decision does not state the reasons on which it is based.


title: Judgment of the Court (Sixth Chamber) of 29 April 2004 in Case C-277/00: Federal Republic of Germany v Commission of the European Communities (Action for annulment — State aid — Decision 2000/567/EC — Aid granted by the Federal Republic of Germany to System Microelectronic Innovation GmbH of Frankfurt an der Oder (Brandenburg) — Article 88(2) EC — Right to be heard — Compatibility with the common market — Article 87(1) EC — Recovery of illegal aid — Recovery from undertakings other than the original beneficiary)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/3

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 29 April 2004
   in Case C-277/00: Federal Republic of Germany v Commission of the European Communities (1)

   (Action for annulment - State aid - Decision 2000/567/EC - Aid granted by the Federal Republic of Germany to System Microelectronic Innovation GmbH of Frankfurt an der Oder (Brandenburg) - Article 88(2) EC - Right to be heard - Compatibility with the common market - Article 87(1) EC - Recovery of illegal aid - Recovery from undertakings other than the original beneficiary)
   (2004/C 118/06)
   Language of the case: German
   In Case C-277/00: Federal Republic of Germany (Agents: W.-D. Plessing and M. Schütte) v Commission of the European Communities (Agents: K.-D. Borchardt and V. Di Bucci), with an address for service in Luxembourg, – application for annulment of Commission Decision 2000/567/EC of 11 April 2000 on State aid granted by Germany to System Microelectronic Innovation GmbH of Frankfurt an der Oder (Brandenburg) (OJ 2000 L 238, p. 50) – the Court (Sixth Chamber), composed of: V. Skouris (Rapporteur), acting as President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and N. Colneric, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 29 April 2004, the operative part of which is as follows:

               1.

               Commission Decision 2000/567/EC of 11 April 2000 on State aid granted by Germany to System Microelectronic Innovation GmbH of Frankfurt an der Oder (Brandenburg) is annulled in so far as it orders the recovery of the aid granted to System Mikroelektronik Innovation GmbH from other undertakings and of the aid granted to Silicium Mikroelektronik Integration GmbH from other undertakings.

               2.

               The remainder of the application is dismissed.

               3.

               The Federal Republic of Germany and the Commission of the European Communities are each to bear their own costs.

      (1)  OJ C 273 of 23.9.2000.


title: JUDGMENT OF THE COURT of 7 December 1995 in Case C-45/94 (reference for a preliminary ruling from the Tribunal Superior de Justicia, Andalusia): Cámara de Comercio, Industria y Navegación, Ceuta v. Municipality of Ceuta (Free movement of goods - Act of Accession of the Kingdom of Spain - Provisions applicable to Ceuta and Melilla - Charge having an effect equivalent to a customs duty)

text:
No C 46/2           1 EN 1                 Official Journal of the European Communities                                   17 . 2 . 96
    other than the staff of the artificial-insemination centres       certain categories ofthose products, to the exclusion oflocal
    which enjoy the monopoly, provided that it does not               products in the same category.
    contravene the principle of the free movement of goods
    by discriminating against imported products to the
                                                                      (') OJ No C 90 , 26 . 3 . 1994 .
    advantage of products of domestic origin.
(') OJ No C 59 , 26 . 2 . 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                of 7 December 1995
               JUDGMENT OF THE COURT                                  in Case C-41/95 : Council of the European Union v.
                     of 7 December 1995                                                  European Parliament (*)
in Case C-45/94 (reference for a preliminary ruling from the                                        (Budget)
Tribunal Superior de Justicia, Andalusia ): Cámara de                                            ( 96/C 46/03 )
Comercio, Industria y Navegación, Ceuta v. Municipality of
                              Ceuta ( 1 )
(Free movement of goods — Act of Accession of the                                    (Language of the case: French)
Kingdom of Spain — Provisions applicable to Ceuta and
Melilla — Charge having an effect equivalent to a customs             (Provisional translation; the definitive translation will he
                                duty)                                         published in the European Court Reports)
                           ( 96/C 46/02 )
                                                                      In Case C-41 /95 : Council of the European Union ( Agents :
                (Language of the case: Spanish)                      Jean-Paul Jacqué, Felix van Craeyenest and Yves Crétien ) v.
                                                                     European Parliament (Agents : Gregorio Garzón Clariana,
(Provisional translation; the definitive translation will be          Christian Pennera and Peter Dyrberg) — application for the
          published in the European Court Reports)                    annulment of the act of the President of the European
                                                                      Parliament of 15 December 1994 declaring the final
                                                                      adoption of the general budget of the European Union for
In Case C-45/94 : reference to the Court under Article 177 of        the financial year 1995 ( OJ 1994 L 369 , p. 1 ) — the Court,
the EEC Treaty from the Tribunal Superior de Justicia ( High         composed of G. C. Rodriguez Iglesias, President, C. N.
Court of Justice ), Andalusia ( Spain ) for a preliminary ruling     Kakouris and G. Hirsch ( Presidents of Chambers ), F. A.
in the proceedings pending before that court between                  Schockweiler, J. C. Moitinho de Almeida, P. J. G. Kapteyn
Cámara de Comercio, Industria y Navegación, Ceuta and                 ( Rapporteur ), C. Gulmann, P. Jann, H. Ragnemalm, L.
municipality of Ceuta — on the interpretation of Article 25           Sevón and M. Wathelet, Judges; A. La Pergola, Advocate
of the Act concerning the conditions of accession of the              General; D. Louterman-Hubeau, Principal Administrator,
Kingdom of Spain and the Republic of Portugal and the                 for the Registrar, has given a judgment on 7 December
adjustments to the Treaties of 12 June 1985 ( OJ 1985 L 302,          1995, in which it:
p. 23 ), and of Protocol No 2 thereto, in conjunction with the
provisions of the EEC, now the EC, and ECSC Treaties
concerning the free movement of goods — the Court ( Fifth             1 . annuls the act of the President of the European
Chamber), composed of D. A. O. Edward ( Rapporteur),                      Parliament of 15 December 1994 declaring the final
President of the Chamber, J. -P. Puissochet, J. C. Moitinho               adoption of the general budget of the European Union
de Almeida, C. Gulmann and L. Sevón, Judges; G. Tesauro,                  for the financial year 1 995;
Advocate General; H. A. Rühl, Principal Administrator, for
the Registrar, gave a judgment on 7 December 1995 , the              2 . preserves the effects of the 1 995 budget, as published in
operative part of which is as follows :                                   the Official Journal of the European Communities, until
                                                                          the date of the final adoption of the budget;
The provisions of the Act concerning the conditions of
accession of the Kingdom of Spain and the Republic of
Portugal and the adjustments to the Treaties of 12 June               3 . dismisses the remainder of the action;
1 985 and of Protocol No 2 thereto, in conjunction with
Articles 9 and 12 of the EC Treaty or Article 4(a) of the             4 . orders the Parliament to pay the costs.
ECSC Treaty, or with Article 95 of the EC Treaty, preclude
the levying by a Member State of a charge which, although
having the appearance of internal taxation, is, either by             (') OJ No C 87, 8 . 4 . 1995 .
reason of the wording of the provisions imposing it or by
reason of the manner in which the administrative authority
applies it, such as to be levied upon imported products or


title: Judgment of the Court of 13 May 2003 in Case C-385/99 (Reference for a preliminary ruling from the Centrale Raad van Beroep): V.G. Müller-Fauré v Onderlinge Waarborgmaatschappĳ OZ Zorgverzekeringen UA, and between E.E.M. van Riet and Onderlinge Waarborgmaatschappĳ ZAO Zorgverzekeringen (Freedom to provide services — Articles 59 of the EC Treaty (now, after amendment, Article 49 EC) and 60 of the EC Treaty (now Article 50 EC) — Sickness insurance — System providing benefits in kind — System ofagreements — Medical costs incurred in another Member State — Prior authorisation — Criteria — Justification)

text:
5.7.2003                EN                           Official Journal of the European Union                                                 C 158/1
                                                                          I
                                                                   (Information)
                                                      COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
                                                                             Judges; D. Ruiz-Jarabo Colomer, Advocate General; H.A. Rühl,
                                                                             Principal Administrator, for the Registrar, has given a judgment
                          of 13 May 2003                                     on 13 May 2003, in which it has ruled:
in Case C-385/99 (Reference for a preliminary ruling from
the Centrale Raad van Beroep): V.G. Müller-Fauré v
                                                                             —     Article 59 of the EC Treaty (now, after amendment,
Onderlinge Waarborgmaatschappij OZ Zorgverzekering-                                Article 49 EC) and Article 60 of the EC Treaty (now
en UA, and between E.E.M. van Riet and Onderlinge                                  Article 50 EC) must be interpreted as not precluding legislation
    Waarborgmaatschappij ZAO Zorgverzekeringen (1)
                                                                                of a Member State, such as that at issue in the main
                                                                                proceedings, which (i) makes the assumption of the costs of
(Freedom to provide services — Articles 59 of the EC Treaty                        hospital care provided in a Member State other than that in
(now, after amendment, Article 49 EC) and 60 of the EC                             which the insured person’s sickness fund is established, by a
Treaty (now Article 50 EC) — Sickness insurance — System                           provider with which that fund has not concluded an agreement,
providing benefits in kind — System ofagreements —                                 conditional upon prior authorisation by the fund and (ii) makes
Medical costs incurred in another Member State — Prior                             the grant of that authorisation subject to the condition that
           authorisation — Criteria — Justification)                               such action is necessary for the insured person’s health care.
                                                                                However, authorisation may be refused on that ground only if
                                                                                treatment which is the same or equally effective for the patient
                          (2003/C 158/01)                                          can be obtained without undue delay in an establishment which
                                                                                has concluded an agreement with the fund;
                    (Language of the case: Dutch)
                                                                             —     by contrast, Articles 59 and 60 of the Treaty do preclude the
                                                                                same legislation in so far as it makes the assumption of the
(Provisional translation; the definitive translation will be published             costs of non-hospital care provided in another Member State by
                   in the European Court Reports)                                  a person or establishment with whom or which the insured
                                                                                person’s sickness fund has not concluded an agreement con-
                                                                                ditional upon prior authorisation by the fund, even when the
                                                                                national legislation concerned sets up a system of benefits in kind
In Case C-385/99: Reference to the Court under Article 234                         under which insured persons are entitled not to reimbursement of
EC by the Centrale Raad van Beroep (Netherlands) for a                             costs incurred for medical treatment, but to the treatment itself
preliminary ruling in the proceedings pending before that                          which is provided free of charge.
court between V.G. Müller-Fauré and Onderlinge Waarborg-
maatschappij OZ Zorgverzekeringen UA, and between
E.E.M. van Riet and Onderlinge Waarborgmaatschappij ZAO
Zorgverzekeringen, on the interpretation of Article 59 of the                (1 ) OJ C 20 of 22.1.2002.
EC Treaty (now, after amendment, Article 49 EC) and
Article 60 of the EC Treaty (now Article 50 EC), the Court,
composed of: G.C. Rodríguez Iglesias, President, M. Wathelet
(Rapporteur) R. Schintgen and C.W.A. Timmermans (Presi-
dents of Chambers), D.A.O. Edward, A. La Pergola, P. Jann,


title: Action brought on 30 April 1998 by Astilleros Zamacona S.A. against the Commission of the European Communities (Case T-72/98)

text:
4.7.98               EN                 Official Journal of the European Communities                                   C 209/43
Action brought on 27 April 1998 by Wolfgang Hilden                 of the Barcelona Bar, and BegonÄa Uriarte, with an address
  against the Commission of the European Communities               for service at 78 Avenue d'Auderghem, Brussels.
                       (Case T-70/98)
                        (98/C 209/89)                              The applicant claims that the Court should:
                (Language of the case: French)                     Ð annul the Commission's decision of 5 November 1997
                                                                       declaring incompatible with the common market the
                                                                       aid Spain proposes to grant to Astilleros Zamacona
An action against the Commission of the European                       S.A.,
Communities was brought before the Court of First
Instance of the European Communities on 27 April 1998
by Wolfgang Hilden, residing in Trierweiler (Germany),             Ð order the Commission to pay the entire costs of the
represented by Nicolas LhoeÈst , of the Brussels Bar, with             proceedings.
an address for service in Luxembourg at the offices of
Fiduciaire Myson SARL, 30 Rue de Cessange.
                                                                   Pleas in law and main arguments adduced in support:
The applicant claims that the Court should:
                                                                   The present action is directed against the decision of the
                                                                   Commission whereby it declares the proposal of Spain to
Ð Rule that the applicant's request that the question of           grant aid in the form of a direct grant to Astilleros
    the possible application of Article 31(2) of the Staff         Zamacona S.A. of up to 9 % of the contract value before
    Regulations be considered with a view to reviewing his         aid for five tugboat contracts (Nos 300, 301, 318, 319
    classification in grade with effect from 5 October             and 320) signed in December 1991 is incompatible with
    1995 is admissible and well-founded,                           the common market, since the aid does not comply with
                                                                   Article 4(3) of Directive 90/684/EEC (1).
Ð annul the Commission's decision implicitly rejecting
    the applicant's request that the possible application of       The applicant observes in this respect that State aid in the
    Article 31(2) of the Staff Regulations be considered,          shipbuilding sector is governed by special rules laid down
                                                                   in Council Directive 90/684/EEC of 21 December 1990 on
Ð if necessary, annul the decision explicitly rejecting the        aid to shipbuilding (2), amended by Directive 94/73/EC of
    applicant's complaint, which the Commission adopted            19 December 1994 (3). Thus, Article 4 of the said directive
    on 17 December 1997,                                           authorises the granting of aid related to shipbuilding
                                                                   contracts, provided they do not exceed a common
                                                                   maximum ceiling expressed as a percentage of the contract
Ð order the defendant to pay all the costs.                        value. Article 4(3) provides that the aid ceiling applicable
                                                                   to a contract shall be that in force at the date of signature
                                                                   of the final contract', unless the ships are delivered more
Pleas in law and main arguments adduced in support:                than three years from the date of signing, in which case
                                                                   the applicable ceiling shall be that in force three years
                                                                   before the date of delivery of the ship'. Finally, Article 4(4)
The pleas in law and main arguments are identical to               allows the Commission to extend the aforementioned
those relied on in Case T-68/98 (Jung v. Commission).              three-year period when this is found justified by the
                                                                   technical complexity of the individual shipbuilding project
                                                                   concerned or by delays resulting from unexpected
                                                                   disruptions of a substantial and defensible nature in the
                                                                   working programme of a yard'.
Action brought on 30 April 1998 by Astilleros Zamacona             The applicant states that in December 1991 it entered into
S.A. against the Commission of the European                        contracts with a number of shipbuilders for the
                         Communities                               construction of five tugboats. Those contracts were not to
                       (Case T-72/98)                              enter into force until the first payment had been made to
                                                                   the shipbuilder. At that time, the applicant could not
                        (98/C 209/90)                              foresee the financial uncertainty it was to face as from
                                                                   1992. That uncertainty arose from the amendments to
               (Language of the case: Spanish)                     port legislation, the devaluation of Spanish currency, the
                                                                   commencement of construction works at the port of
                                                                   Bilbao, which caused a slowdown of production, and the
An action against the Commission of the European                   takeover of the ARDEAG yard, which was imposed on
Communities was brought before the Court of First                  the applicant within the framework of the restructuring
Instance of the European Communities on 30 April 1998              programme of the Spanish shipbuilding industry. All of
by Astilleros Zamacona S.A., whose registered office is at         this caused a delay of between 7 and 14 months to the
Santurce, Vizcaya (Spain), represented by Antonio Creus,           planned date of delivery of the tugboats contracted for,
 ---pagebreak--- C 209/44              EN                Official Journal of the European Communities                                      4.7.98
which, by exceeding the limit of three years referred to in        Pleas in law and main arguments adduced in support:
the abovementioned provision, led to the aid initially
provided for being reduced from 9 % to 4.5 % of the total
cost of the project.                                               The applicant, a company incorporated under Belgian law
                                                                   which manufactures and sells purified phosphoric acid, a
                                                                   finished product derived from wet' processing, and
In support of its claims the applicant alleges that the            phosphatic salts, contests the decision of the Commission
Commission committed a manifest error of assessment in             approving certain aid granted by the German authorities
not considering that the four factors enumerated above             in favour of Chemische Werke Piesteritz GmbH (CWP'),
constituted unexpected disruptions of a substantial and            inasmuch as the said aid constitutes measures which are
defensible nature, within the meaning of Article 4 of              supplementary to its restructuring and privatisation. It
Directive 90/684/EEC, which affected the working                   alleges that those measures concern, in particular, the
programme of the yard.                                             covering of losses, suspension of payment of the purchase
                                                                   price and investment aid. CWP produces pure phosphoric
Furthermore, the present action is based on an                     acid by means of the thermal' process, yellow phosphorus
infringement of Article 190 of the Treaty inasmuch as,             and phosphatic salts. One of the fundamental aspects of
according to the applicant, the Commission failed to               the present dispute concerns the alleged error of
provide a sufficient statement of reasons for the contested        assessment committed by the Commission in considering
decision.                                                          that, in order to switch over from the thermal process to
                                                                   the wet process, it is necessary merely to replace the
                                                                   chemical processor'.
Finally, the applicant claims that the principle of
proportionality has been breached inasmuch as the
conduct of the applicant, namely the delay of 7 to 14              The applicant advances the following pleas in law in
months in the delivery of the vessels, has led to a halving        support of its claims:
of the aid.
(1) Commission Decision 98/157/EC of 5 November 1997               Ð Infringement of Articles 92(3)(c) and 93(3), inasmuch
    concerning aid Spain proposes to grant to Astilleros                the Commission committed a manifest error in its
    Zamacona S.A. in respect of five tugboats (OJ L 50 of               assessment of the facts and thus wrongly decided that
    20.2.1998 p. 38).                                                   the aid could be authorised on the basis of
(2) OJ L 380 of 31.12.1990 p. 27.                                       Article 92(3)(c) of the EC Treaty.
(3) OJ L 351 of 31.12.1994 p. 10.
                                                                   Ð Manifest error of assessment of the scope and
                                                                        financing of the investment, inasmuch as the defendant
                                                                        erred in considering that private funds amounting to
                                                                        DM 10 million would be invested.
Action brought on 5 May 1998 by SocieÂteÂ Chimique
Prayon Rupel S.A. against the Commission of the
                    European Communities                           Ð Unlawful and wrongful application of the guidelines
                                                                        on State aid for rescuing and restructuring firms in
                        (Case T-73/98)                                  difficulty. More specifically: the Commission
                         (98/C 209/91)                                  unlawfully characterised the measures in question as
                                                                        restructuring aid; consideration of the figures provided
                                                                        offers no credible guarantee of a return to viability;
                (Language of the case: French)                          and, lastly, the new investment in fact results in an
                                                                        increase in capacity. Moreover, the Commission
An action against the Commission of the European                        grossly underestimated the distortions of competition
Communities was brought before the Court of First                       resulting from the aid measure, and also erred in
Instance of the European Communities on 5 May 1998 by                   deciding that the aid in issue was limited to the
SocieÂteÂ Chimique Prayon Rupel S.A., established at Engis              minimum strictly necessary.
(Belgium), represented by Bernard van de Walle de
Ghelcke, of the Brussels Bar, with an address for service in
Luxembourg at the Chambers of Freddy Brausch, 11 Rue               Ð Infringement of the provisions of Article 92(2) and (3)
Goethe.                                                                 of the EC Treaty, inasmuch as, despite the difficulties
                                                                        presented by the present case, the defendant failed to
                                                                        comply with its obligation to initiate the preliminary
The applicant claims that the Court should:                             procedure provided for in Article 93(2), in disregard of
                                                                        the guarantees for which Article 93(2) provides.
Ð annul the decision dated 16 December 1997/22 January
     1998 concerning State aid cases N 198/97 and NN 91/
     98 Ð Germany Ð Financial measures in favour of                     Finally, the applicant       pleads   infringement    of
     Chemische Werke Piesteritz,                                        Article 190 of the Treaty.
Ð order the Commission to pay all of the costs.


title: Case T-468/14: Judgment of the General Court of 12 May 2016 — Holistic Innovation Institute v Commission (Financial support — Research — Seventh Framework Programme for Research and Technical Development 2007-2013 — eDIGIREGION project — Commission decision refusing participation of an undertaking — Action for annulment — Time limit for bringing an action — Point from which time starts to run — Inadmissibility — Non-contractual liability — Non-material damage — Sufficiently serious breach of a rule of law conferring rights on individuals)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/10

         Judgment of the General Court of 12 May 2016 — Holistic Innovation Institute v Commission
   (Case T-468/14) (1)

   ((Financial support - Research - Seventh Framework Programme for Research and Technical Development 2007-2013 - eDIGIREGION project - Commission decision refusing participation of an undertaking - Action for annulment - Time limit for bringing an action - Point from which time starts to run - Inadmissibility - Non-contractual liability - Non-material damage - Sufficiently serious breach of a rule of law conferring rights on individuals))
   (2016/C 232/12)
   Language of the case: Spanish

      Parties

      Applicant: Holistic Innovation Institute, SLU (Pozuelo de Alarcón, Spain) (represented initially by R. Muñiz García, and subsequently by J. Marín López, lawyers)

      Defendant: European Commission (represented by: R. Lyal, acting as Agent, and J. Rivas Andrés, lawyer)

      Re:

   Action, first, for annulment of Commission Decision ARES (2014) 710158 of 13 March 2014 rejecting the applicant’s participation in the eDIGIREGION project under Article 263 TFEU, and, second, an action for damages, under Article 268 TFEU, for harm that the applicant allegedly suffered as a result of that decision of EUR 3 055 000 plus interest accrued and, in the alternative, the appointment of an expert to evaluate the harm suffered.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Holistic Innovation Institute SLU to pay the costs.

      (1)  OJ C 292, 1.9.2014.


title: Case F-104/13: Judgment of the Civil Service Tribunal (Single Judge) of 18 December 2015 — De Nicola v EIB (Civil Service — EIB staff — Psychological harassment — Investigation procedure — Report of the Investigation Panel — Incorrect definition of psychological harassment — Decision of the President of the EIB to take no action on a complaint — Annulment — Action for compensation)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/90

         Judgment of the Civil Service Tribunal (Single Judge) of 18 December 2015 — De Nicola v EIB
   (Case F-104/13)
   ((Civil Service - EIB staff - Psychological harassment - Investigation procedure - Report of the Investigation Panel - Incorrect definition of psychological harassment - Decision of the President of the EIB to take no action on a complaint - Annulment - Action for compensation))
   (2016/C 048/101)
   Language of the case: Italian

      Parties

      Applicant: Carlo De Nicola (Strassen, Luxembourg) (represented by: L. Isola, lawyer)

      Defendant: European Investment Bank (represented by: G. Nuvoli and F. Martin, acting as Agents, and A. Dal Ferro, lawyer)

      Re:

   Application for annulment, on the one hand, of the letter of the President of the EIB by which he firstly failed to adopt any measure concerning the psychological harassment suffered by the applicant for 20 years; secondly, justified all the facts complained of and, thirdly, requires the applicant to work with a ‘mentor’ and ‘business partner’ and, on the other, the opinion of the ‘Dignity at work’ Panel of 14 March 2013.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of 29 April 2013 by which the President of the European Investment Bank rejected Mr De Nicola’s complaint of psychological harassment

               2.

               Dismisses the remainder of the action;

               3.

               Orders the European Investment Bank to bear its own costs and to pay the costs incurred by Mr De Nicola.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 15 October 1998 in Case C-386/97: Commission of the European Communities v. Hellenic Republic (Failure of a Member State to fulfil its obligations - Directive 95/23/EC - Failure to transpose within the prescribed period)

text:
5.12.98               EN                  Official Journal of the European Communities                                       C 378/5
                JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                       (Sixth Chamber)                                                         (Sixth Chamber)
                     of 15 October 1998                                                      of 15 October 1998
      in Case C-385/97: Commission of the European
                                                                            in Case C-386/97: Commission of the European
             Communities v. Hellenic Republic (1)
                                                                                Communities v. Hellenic Republic (1)
(Failure of a Member State to fulfil its obligations Ð
Directives 93/118/EC and 94/59/EC Ð Failure to                       (Failure of a Member State to fulfil its obligations Ð
            transpose within the prescribed period)                  Directive 95/23/EC Ð Failure to transpose within the
                                                                                prescribed period)
                        (98/C 378/09)
                                                                                (98/C 378/10)
                 (Language of the case: Greek)
                                                                                (Language of the case: Greek)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                       (Provisional translation; the definitive translation will be
In Case C-385/97: Commission of the European                                   published in the European Court Reports)
Communities (Agent: Maria Condou-Durande) v. Hellenic
Republic (Agent: Nana Dafniou, Dimitris Papa-
georgopoulos and Foteini Dedousi) Ð Application for a
declaration that, by failing to adopt within the prescribed          In Case C-386/97: Commission of the European
period the laws, regulations and administrative provisions           Communities (Agent: Maria Condou-Durande) v. Hellenic
necessary to comply with: Council Directive 93/119/EC of             Republic (Agents: Nana Dafniou, Ioannis Chalkias and
22 December 1993 amending Directive 85/73/EEC on the                 Foteini Dedousi) Ð Application for a declaration that, by
financing of health inspections and controls of fresh meat           failing to adopt within the prescribed period the laws,
and poultrymeat (OJ L 340, 31.12.1993, p. 15), and                   regulations and administrative provisions necessary to
Commission Directive 94/59/EC of 2 December 1994                     comply with Council Directive 95/23/EC of 22 June 1995
amending for the third time the Annexes to Council                   amending Directive 64/433/EEC on conditions for the
Directive 77/96/EEC on the examination for Trichinae                 production and marketing of fresh meat (OJ L 243,
(Trichinelle spiralis) upon importation from third                   11.10.1995, p. 7), the Hellenic Republic has failed to fulfil
countries of fresh meat derived from domestic swine (OJ              its obligations under the EC Treaty and that directive, Ð
L 315, 8.12.1994, p. 18), the Hellenic Republic has failed           the Court (Sixth Chamber), composed of: P. J. G.
to fulfil its obligations under the EC Treaty and those              Kapteyn, President of the Chamber, G. Hirsch, G. F.
directives Ð the Court (Sixth Chamber), composed of:                 Mancini, H. Ragnemalm and R. Schintgen (Rapporteur),
P. J. G. Kapteyn, President of the Chamber, G. Hirsch,               Judges; A. La Pergola, Advocate-General; R. Grass,
G. F. Mancini, H. Ragnemalm and R. Schintgen                         Registrar, has given a judgment on 15 October 1998, in
(Rapporteur), Judges; P. LeÂger, Advocate-General; R.                which it:
Grass, Registrar, has given a judgment on 15 October
1998, in which it:
                                                                     1. Declares that, by failing to adopt within the prescribed
1. Declares that, by failing to adopt within the prescribed               period the laws, regulations and administrative
     period the laws, regulations and administrative                      provisions necessary to comply with Council Directive
     provisions necessary to comply with Council Directive                95/23/EC of 22 June 1995 amending Directive 64/
     93/119/EC of 22 December 1993 amending Directive                     433/EEC on conditions for the production and
     85/73/EEC on the financing of health inspections and                 marketing of fresh meat, the Hellenic Republic has
     controls of fresh meat and poultrymeat, the Hellenic                 failed to fulfil its obligations under that directive;
     Republic has failed to fulfil its obligations under that
     directive;
                                                                     2. Orders the Hellenic Republic to pay the costs.
2. Orders the Hellenic Republic to pay the costs.
                                                                     (1) OJ C 7, 10.1.1998.
(1) OJ C 55, 20.2.1998.


title: Case C-242/04: Reference for a preliminary ruling by Il Tribunale Amministrativo Regionale della Liguria (Second Chamber) by order of that court of 22 April 2004, in case of Acquedotto Nicolay against Province of Genoa

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/11

         Reference for a preliminary ruling by Il Tribunale Amministrativo Regionale della Liguria (Second Chamber) by order of that court of 22 April 2004, in case of Acquedotto Nicolay against Province of Genoa
   (Case C-242/04)
   (2004/C 217/21)
   Reference has been made to the Court of Justice of the European Communities by order of Il Tribunale Amministrativo Regionale della Liguria, (Second Chamber) Italy of 22 April 2004 received at the Court Registry on 8 June 2004, for a preliminary ruling in the case of Acquedotto Nicolay SpA against Province of Genoa and Others on the following questions:

               —

               Is whether the interpretation of Articles 12, 28, 43, 49 and 86 of the EC Treaty adopted by the Court of Justice in Case C-324/98 Teleaustria to be regarded as valid and binding on the national court even where there is no actual or potential risk of discrimination on the ground of nationality?

               —

               May Community law and in particular Articles 12, 28, 43, 49 and 86 of the EC Treaty be interpreted in such a way as to permit Member States, when prescribing rules governing the award of concession contracts in accordance with the aforesaid provisions (as interpreted by the Court of Justice in Case C-324/98 Teleaustria), to introduce transitional rules preserving concessions already awarded without competitive tendering and, if so, for what duration?

               —

               May Article 86(2) be interpreted as permitting a derogation from Articles 12 EC, 28 EC, 43 EC and 49 EC (as interpreted by the Court of Justice in Case C-324/98 in relation to the requirement of competitive tendering for public service concessions), in the limited circumstances of a service concession being awarded for a transitional period of specified duration which is within reasonable limits, where the specific nature of the situation before the national court is such that the holding of a competitive tendering process for the concession of a public service of general economic interest, such as the integrated water service, could be detrimental to the timely implementation, activation and operation of the service in question?


title: Case C-421/09: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien (Austria) lodged on 28 October 2009 — Humanplasma GmbH v Republic of Austria

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/20

         Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien (Austria) lodged on 28 October 2009 — Humanplasma GmbH v Republic of Austria
   (Case C-421/09)
   2010/C 24/34
   Language of the case: German

      Referring court

   Landesgericht für Zivilrechtssachen Wien

      Parties to the main proceedings

      Applicant: Humanplasma GmbH

      Defendant: Republic of Austria

      Question referred

   Does Article 28 (in conjunction with Article 30) EC preclude the application of a national provision under which the importation of erythrocyte concentrates from Germany is permitted only where the blood was donated without any payment having been made (not even coverage of expenses), that being a condition which is also applicable to the obtaining of erythrocyte concentrates within Austria?


15.6.2002             EN               Official Journal of the European Communities                                  C 144/31
       Removal from the register of Case C-407/00 (1)             from the register of Case C-462/00: Commission of the
                                                                  European Communities v Republic of Austria.
                       (2002/C 144/59)
                                                                  (1) OJ C 45 of 10.2.2001.
By order of 20 March 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-407/00: Commission of the
European Communities v Republic of Austria.
                                                                         Removal from the register of Case C-235/01 (1)
(1) OJ C 28 of 27.1.2001.
                                                                                (2002/C 144/63)
                                                                  By order of 9 January 2002 the President of the Court of
                                                                  Justice of the European Communities ordered the removal
                                                                  from the register of Case C-235/01: Commission of the
       Removal from the register of Case C-408/00 (1)             European Communities v Italian Republic.
                       (2002/C 144/60)                            (1) OJ C 245 of 1.9.2001.
By order of 22 February 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-408/00: Commission of the
European Communities v Federal Republic of Germany.                      Removal from the register of Case C-242/01 (1)
(1) OJ C 28 of 27.1.2001.                                                                (2002/C 144/64)
                                                                  By order of 7 February 2002 the President of the Court of
                                                                  Justice of the European Communities ordered the removal
                                                                  from the register of Case C-242/01: Commission of the
                                                                  European Communities v Grand-Duchy of Luxembourg.
       Removal from the register of Case C-461/00 (1)
                                                                  (1) OJ C 212 of 28.7.2001.
                       (2002/C 144/61)
By order of 1st March 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-461/00: Commission of the
European Communities v Republic of Austria.                       Removal from the register of Joined Cases C-269/01 and
                                                                                C-270/01 (1)
(1) OJ C 45 of 10.2.2001.                                                                (2002/C 144/65)
                                                                  By order of 22 March 2002 the President of the Court of
                                                                  Justice of the European Communities ordered the removal
                                                                  from the register of Joined Cases C-269/01 and C-270/01
                                                                  (Reference for a preliminary ruling by the Tribunale Civile e
       Removal from the register of Case C-462/00 (1)
                                                                  Penale di L’Aquila): Flora Panepucci v Rina Iannarelli (Case
                                                                  C-269/01) and Attilio Maria Cecchini v Mario Basile (Case
                       (2002/C 144/62)                            C-270/01).
                                                                  (1) OJ C 275 of 29.9.2001.
By order of 1st March 2002 the President of the Court of
Justice of the European Communities ordered the removal


title: Case F-48/08: Action brought on 27 April 2008 — Ortega Serrano v Commission

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/52

         Action brought on 27 April 2008 — Ortega Serrano v Commission
   (Case F-48/08)
   (2008/C 171/105)
   Language of the case: Spanish
   Parties

      Applicant: Antonio Ortega Serrano (Cádiz, Spain) (represented by: A. Ortega Serrano, lawyer)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   Annulment of the decision of the selection board in competition EPSO/AD/26/05 not to include the applicant's name on the list of successful candidates.
   Form of order sought

               —

               Annul the decision not to include the applicant's name in the reserve list of competition EPSO/AD/26/05 or to afford him the opportunity of taking the oral test again;

               —

               Order the Commission to set a new date for the oral test;

               —

               Order the Commission to state the reasons for its decision EPSO/900/R;

               —

               Grant the applicant access to the records of the oral test;

               —

               Grant the applicant access to all the documents which form part of his personal file;

               —

               Declare that the applicant, who is a lawyer practising before the Spanish courts, may represent himself;

               —

               Order the examination of the personal files of all the candidates whose names are included in the list of successful candidates in order to verify that all of them have a level of education which corresponds to completed university studies of at least three years attested by a diploma in law and that they submitted their applications within the time limits and in the correct form;

               —

               Declare the documents presented as annexes in French and English to be admissible;

               —

               Order the defendant to pay the costs.


title: Case C-330/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Italian Republic

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/16

         Action brought on 30 July 2004 by the Commission of the European Communities against the Italian Republic
   (Case C-330/04)
   (2004/C 262/28)
   An action against Italian Republic was brought before the Court of Justice of the European Communities on 30 July 2004 by the Commission of the European Communities, represented by Chiara Cattabriga, acting as Agent.
   The applicant claims that the Court should:

               1)

               Declare that, by failing to adopt and bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2002/33/EC (1) of the European Parliament and of the Council of 21 October 2002 amending Council Directives 90/425/EEC (2) and 92/118/EEC (3) as regards health requirements for animal by-products, or in any event by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3(1) thereof; and

               2)

               Order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposing the directive expired on 16 May 2003.

      (1)  OJ L 315 of 19.11.2002, p. 14.

      (2)  OJ L 224 of 18.8.1990, p. 29.

      (3)  OJ L 62 of 15.3.1993, p. 49.