title: Case C-235/04: Action brought on 4 June 2004 by the Commission of the European Communities against the Kingdom of Spain

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/11

         Action brought on 4 June 2004 by the Commission of the European Communities against the Kingdom of Spain
   (Case C-235/04)
   (2004/C 201/21)
   An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 4 June 2004 by the Commission of the European Communities, represented by D.M. van Beek and Gregorio Valero Jordana, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               Declare that, by failing to classify territories of a sufficient number and size as special protection areas for birds in order to provide protection for all the species of birds listed in Annex I to Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds and for the migratory species not mentioned in the said Annex I, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               2.

               Order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   Article 4(1) and (2) of Directive 79/409/EC places on Members States an obligation to classify territories as special protection areas for the conservation of birds, to ensure effective protection of the species listed in Annex I to that directive and of regularly occurring migratory species, in order to guarantee their survival and reproduction in their area of distribution. That obligation relates, as a minimum, to all the most suitable territories, as regards their number and size, for the conservation of the species concerned, having regard to their protection requirements. What constitutes a sufficient number of special protection areas is determined by reference to the objective pursued.
   The Member Stakes enjoy a degree of latitude in determining which territories best meet the requirements listed in Article 4 of the directive, but they must base their evaluations solely on scientific ornithological criteria. In the case of Spain, the inventory of important bird areas (IBA) drawn up by the Sociedad Española de Ornitología (Spanish Ornithological Society) in 1998 (SEO/Birdlife Inventory 98) constitutes the best documented and most accurate basis available for defining the most suitable territories for conservation and, in particular, for the survival and reproduction of important species. That inventory is based on balanced ornithological criteria, making it possible to indicate which places are most suitable for guaranteeing conservation of all the species mentioned in Annex 1 and other migratory species, and identifies the priority areas for the conservation of birds in Spain.
   From a comparison of the data of the SEO/Birdlife Inventory 98 with the special protection areas designated by the Kingdom of Spain, for Spanish territory as a whole, and from a more detailed analysis by the Autonomous Communities, it can be inferred that the number and size of the areas classified as special protection areas fall short of what scientific evidence indicates as the areas most suitable for providing adequate protection of the birds covered by Article 4 of the directive.

      (1)  OJ L 103 of 25.4.1979, p. 1.


title: Judgment of the Court (Grand Chamber) of  25 October 2005  in Joined Cases C-465/02 and C-466/02: Federal Republic of Germany and Kingdom of Denmark v Commission of the European Communities (Agriculture — Geographical indications and designations of origin for agricultural products and foodstuffs — The name  feta  — Regulation (EC) No 1829/2002 — Validity)

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/1

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 25 October 2005
   in Joined Cases C-465/02 and C-466/02: Federal Republic of Germany and Kingdom of Denmark v Commission of the European Communities (1)

   (Agriculture - Geographical indications and designations of origin for agricultural products and foodstuffs - The name ‘feta’ - Regulation (EC) No 1829/2002 - Validity)
   (2006/C 86/01)
   Language of the cases: German and Danish
   In Joined Cases C-465/02 and C-466/02: Federal Republic of Germany (represented by: W.-D. Plessing, Agent, assisted by M. Loschelder, Rechtsanwalt) applicant in Case C-465/02; Kingdom of Denmark (represented by: J. Molde and J. Bering Liisberg, Agents) applicant in Case C-466/02, supported by: French Republic, (represented by: G. de Bergues and A. Colomb, Agents), United Kingdom of Great Britain and Northern Ireland (represented by: C. Jackson, Agent) v Commission of the European Communities (represented by: J.L. Iglesias Buhigues and H. C. Støvlbæk, and A. M. Rouchaud-Joët and S. Grünheid, Agents) supported by: Hellenic Republic (represented by: V. Kontolaimos and I.-K. Chalkias, Agents) — applications for annulment pursuant to Article 230 EC, brought on 30 December 2002 — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and J. Malenovský, Presidents of Chambers, J. P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues (Rapporteur), J. Klučka, U. Lõhmus and E. Levits, Judges; D. Ruiz-Jarabo Colomer, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 25 October 2005, in which it:

               1.

               Dismisses the actions;

               2.

               Orders the Federal Republic of Germany to pay the costs in relation to Case C-465/02 and the Kingdom of Denmark to pay the costs in relation to Case C-466/02;

               3.

               Orders the Hellenic Republic, the French Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

      (1)  OJ C 55, 08.03.2003.


title: Case C-575/15 P: Order of the Court (Sixth Chamber) of 26 October 2016 — Industria de Diseño Textil, SA (Inditex) v European Union Intellectual Property Office (EUIPO) (Appeal — EU trade mark — Word mark ZARA — Transport services — Genuine use — Revocation proceedings — Regulation (EC) No 207/2009 — Article 51(1)(a) — Distortion of evidence — Rights of the defence)

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/6

         Order of the Court (Sixth Chamber) of 26 October 2016 — Industria de Diseño Textil, SA (Inditex) v European Union Intellectual Property Office (EUIPO)
   (Case C-575/15 P) (1)

   ((Appeal - EU trade mark - Word mark ZARA - Transport services - Genuine use - Revocation proceedings - Regulation (EC) No 207/2009 - Article 51(1)(a) - Distortion of evidence - Rights of the defence))
   (2017/C 063/09)
   Language of the case: Spanish

      Parties

      Appellant: Industria de Diseño Textil, SA (Inditex) (represented by: C. Duch Fonoll, abogada)

      Other party to the proceedings: European Union Intellectual Property Office (represented by: J. Crespo Carillo, acting as Agent)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Industria de Diseño Textil, SA (Inditex) shall pay the costs.

      (1)  OJ C 38, 1.2.2016.


title: Judgment of the Court (Fifth Chamber) of 10 April 2003 In Joined Cases C-20/01 and C-28/01: Commission of the European Communities v Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Admissibility — Legal interest in bringing proceedings — Directive 92/50/EEC — Procedures for the award of public service contracts — Negotiated procedure without prior publication of a contract notice — Conditions)

text:
C 146/6                  EN                          Official Journal of the European Union                                             21.6.2003
                  JUDGMENT OF THE COURT                                      1.    Declares that since the Municipality of Bockhorn (Germany)
                                                                                failed to invite tenders for the award of the contract for the
                                                                                collection of its waste water and failed to publish notice of the
                           (Fifth Chamber)                                         results of the procedure for the award of the contract in the
                                                                                Supplement to the Official Journal of the European Communi-
                          of 10 April 2003                                         ties, the Federal Republic of Germany, at the time of the award
                                                                                of that public service contract, failed to fulfil its obligations
                                                                                under Article 8 in conjunction with Article 15(2) and
In Joined Cases C-20/01 and C-28/01: Commission of the                             Article 16(1) of Council Directive 92/50/EEC of 18 June
European Communities v Federal Republic of Germany (1)                             1992 relating to the coordination of procedures for the award
                                                                                of public service contracts;
(Failure by a Member State to fulfil its obligations —
Admissibility — Legal interest in bringing proceedings —                     2.    Declares that since the City of Braunschweig (Germany)
Directive 92/50/EEC — Procedures for the award of public                           awarded a contract for waste disposal by negotiated procedure
service contracts — Negotiated procedure without prior                             without prior publication of a contract notice, although the
        publication of a contract notice — Conditions)                             criteria laid down in Article 11(3) of Directive 92/50 for an
                                                                                award by privately negotiated procedure without a Community-
                                                                                wide invitation to tender had not been met, the Federal Republic
                           (2003/C 146/09)                                         of Germany, at the time of the award of that public service
                                                                                contract, failed to fulfil its obligations under Article 8 and
                    (Language of the case: German)                                 Article 11(3)(b) of that directive;
                                                                             3.    Orders the Federal Republic of Germany to pay the costs;
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           4.    Orders the United Kingdom of Great Britain and Northern
                                                                                Ireland to bear its own costs.
                                                                             (1 ) OJ C 61 of 24.2.2001.
In Joined Cases C-20/01 and C-28/01, Commission of the
European Communities (Agent: J. Schieferer) v Federal Repub-
lic of Germany (Agent: W.-D. Plessing, assisted by H.-J. Prieß)
supported by United Kingdom of Great Britain and Northern
Ireland (Agent: R. Magrill, assisted by R. Williams, barrister):
Applications for declarations that:
                                                                                JUDGMENT OF THE COURT
—     by failing to invite tenders for the award of the contract
      for the collection of waste water in the Municipality of
      Bockhorn (Germany) and to publish notice of the results                                             of 6 May 2003
      of the procedure for the award of the contract in the
      Supplement to the Official Journal of the European                     in Case C-104/01 (Reference for a preliminary ruling from
      Communities, the Federal Republic of Germany, at the                   the Hoge Raad der Nederlanden): Libertel Groep BV v
      time of the award of that public service contract, failed to                                Benelux-Merkenbureau, (1)
      fulfil its obligations under Article 8 in conjunction with
      Article 15(2) and Article 16(1) of Council Directive 92/
      50/EEC of 18 June 1992 relating to the coordination of                 (Trade marks — Approximation of laws — Directive 89/
      procedures for the award of public service contracts (OJ               104/EEC — Signs capable of constituting a trade mark—
      1992 L 209, p. 1);                                                            Distinctive character — Colour per se — Orange)
—     at the time of the award of a public service contract, the                                         (2003/C 146/10)
      Federal Republic of Germany failed to fulfil its obligations
      under Article 8 and Article 11(3)(b) of Directive 92/50                                      (Language of the case: Dutch)
      by virtue of the fact that the City of Braunschweig
      (Germany) awarded a contract for waste disposal by
                                                                             (Provisional translation; the definitive translation will be published
      negotiated procedure without prior publication of a
                                                                                in the European Court Reports)
      contract notice, although the criteria laid down by
      Article 11(3) for an award of a contract by privately
      negotiated procedure without a Community-wide invi-
      tation to tender had not been met,                                     In Case C-104/01: Reference to the Court under Article 234
                                                                             EC by the Hoge Raad der Nederlanden (Netherlands) for a
the Court (Fifth Chamber), composed of: M. Wathelet, Presi-                  preliminary ruling in the proceedings pending before that
dent of the Chamber, D. A. O. Edward, A. La Pergola, P. Jann                 court between Libertel Groep BV and Benelux-Merkenbureau,
(Rapporteur) and A. Rosas, Judges; L. A. Geelhoed, Advocate                  on the interpretation of Article 3 of First Council Directive 89/
General; M.-F. Contet, Administrator, for the Registrar, has                 104/EEC of 21 December 1988 to approximate the laws of
given a judgment on 10 April 2003, in which it:                              the Member States relating to trade marks (OJ 1989 L 40,


title: Case C-551/03 P: Appeal brought on 29 December 2003 by General Motors Nederland BV and Opel Nederland BV against the judgment delivered on 21 October 2003 by the Second Chamber of the Court of First Instance of the European Communities in case T-368/00 between General Motors Nederland BV and Opel Nederland BV and the Commission of the European Communities

text:
C 71/8                 EN                           Official Journal of the European Union                                      20.3.2004
      (b) in the Länder of                                                  treated in a less favourable manner than full-time workers
                                                                            unless such different treatment is justified on objective
                                                                            grounds.
            —     Mecklenburg-Western Pomerania
            —     Saxony                                                    However, there are no objective grounds for the exclusion
                                                                            from eligibility for election. The restricted presence of the
            —     Schleswig-Holstein                                        relevant employees in the workplace could be compensated
                                                                            for by the creation of flexible working time arrangements and
                                                                            modern means of communication. The Betriebsverfassungsge-
            —     Thuringia,                                                setz (Law on labour relations at the workplace), which governs
                                                                            elections to works councils in the private sector, does not
            part-time employees who work less than half of the              restrict eligibility for election in the same way. Such works
            normal weekly hours of work,                                    councils perform the same functions as staff committees in
                                                                            the public sector. Representation of the excluded groups is
                                                                            necessary because they have separate interests, which other-
      (c)   in the Länder of                                                wise would not be taken into account.
            —     Baden-Württemberg
                                                                            (1) OJ 1976 L 39, p. 40.
                                                                            (2) OJ 1998 L 14, p. 9.
            —     Brandenburg
            —     Rhineland-Palatinate
            —     Saxony-Anhalt,
            part-time employees who work less than one-third                Appeal brought on 29 December 2003 by General Motors
            of the normal weekly hours of work,                             Nederland BV and Opel Nederland BV against the judg-
                                                                            ment delivered on 21 October 2003 by the Second
      (d) in North Rhine-Westphalia,                                        Chamber of the Court of First Instance of the European
                                                                            Communities in case T-368/00 (1) between General
            part-time employees who less than 2/5 of the                    Motors Nederland BV and Opel Nederland BV and the
            normal weekly hours of work,                                             Commission of the European Communities
      (e)   in Lower Saxony,                                                                        (Case C-551/03 P)
            part-time employees who, for a period of up to two                                        (2004/C 71/12)
            months in the course of a year, are employed for
            less than 15 hours a week,
            from eligibility for election to staff committees.              An appeal against the judgment delivered on 21 October 2003
                                                                            by the Second Chamber of the Court of First Instance of the
                                                                            European Communities in case T-368/00 between General
2.    Order the Federal Republic of Germany to pay the costs.               Motors Nederland BV and Opel Nederland BV and the
                                                                            Commission of the European Communities, was brought
                                                                            before the Court of Justice of the European Communities on
                                                                            29 December 2003 by General Motors Nederland BV and Opel
                                                                            Nederland BV, both established in Sliedrecht (Netherlands),
Pleas in law and main arguments                                             represented by D. Vandermeersch, R. Snelders and T. Graf,
                                                                            lawyers, with an address for service in Luxembourg.
The exclusion from eligibility for election to staff committees,
for public sector workers employed by the Federal Republic                  The Appellants claim that the Court should:
and almost all Länder, of part-time employees who normally
work less than 18 hours a week (the number of hours is                      1.    annul the judgment of the Second Chamber of the Court
somewhat less in certain Länder) constitutes indirect discrimi-                   of First Instance of 21 October 2003 in case T-368/00,
nation against women, as they form the great majority of part-                    General Motors and Opel Nederland vs. Commission of
time workers. This is accordingly in breach of Directive 76/                      the European Communities, in so far as it relates to Opel
207/EEC. The rules are also incompatible with Directive 97/                       Nederland’s alleged export strategy and bonus policy and
81/EC, which provides that part-time workers may not be                           confirms a fine in that regard;
 ---pagebreak--- 20.3.2004             EN                      Official Journal of the European Union                                              C 71/9
2.    annul Commission Decision No C (2000) 2707, of                  the differential pricing mechanism at issue in Distillers and
      20 September 2000 (2) (Case COMP/36.653 — Opel),                similar cases, where dealers were required to give a commit-
      addressed to General Motors Nederland BV and Opel               ment as to the destination of the goods in return for a
      Nederland BV, to the extent not yet annulled by the             favourable price.
      judgment of the Second Chamber of the Court of First
      Instance of 21 October 2003 in case T-368/00, General
      Motors and Opel Nederland vs. Commission of the
      European Communities, and in so far as it relates to
      Opel Nederland’s alleged strategy and bonus policy, and
      imposes a fine in that regard;                                  A car manufacturer’s implementation of temporary bonus
                                                                      campaigns limited to the domestic sale of selected slow-
                                                                      moving car models (and designed temporarily to stimulate
3.    irrespective of the Court’s holding on points 1 or 2,           domestic sales of such models in competition with other
      reduce the fine of EUR 35 475 million imposed on                brands), without combining such bonus campaigns with any
      General Motors Nederland BV and Opel Nederland BV as            other measure — such as a supply limitation or a requirement
      erroneously confirmed by the judgment of the Second             to commit to the destination of the cars — should not be
      Chamber of the Court of First Instance of 21 October            treated as a restriction ‘by object’ under Article 81 EC,
      2003 in case T-368/00, General Motors and Opel                  irrespective of (and without need to examine) whether or not
      Nederland vs. Commission of the European Communi-               such a bonus policy effectively restricts competition. The
      ties,                                                           Appellants submit that a bonus policy of the type implemented
                                                                      by them cannot be viewed as having a restrictive object.
Alternatively,
4.    remand the case to the Court of First Instance for              In the Appellants’ view, the Court of First Instance erred in law
      reconsideration in accordance with the Court’s judgment,        in holding that a bonus policy such as that operated by them
                                                                      was, ‘by its very nature, likely to inhibit export sales, even
                                                                      without any restriction on supply’. Instead, the Court of First
                                                                      Instance should have examined whether the bonus policy in
And in either case,                                                   its proper legal and economic context had the sole objective
                                                                      purpose or obvious consequence of appreciably restricting any
                                                                      competition that could reasonably be expected to have existed
5.    order the Commission to pay the Appellants’ legal fees          in the absence of the contested measure. The Court of First
      and expenses in accordance with Article 69 of the Court’s       Instance could not avoid this merely by pointing to the purely
      Rules of Procedure.                                             theoretical ‘possibility that, without the measure in question,
                                                                      export sales would have been higher’.
Pleas in law and main arguments
                                                                      As to the level of the fine, the judgment violates Article 15(2)
                                                                      of Regulation 17 since it is based on manifestly erroneous
                                                                      findings with respect to the alleged general strategy to restrict
                                                                      all exports and the bonus policy. The judgment, moreover,
The Appellants submit that in upholding the existence of a            errs in law in holding that Opel Nederland’s corrective
general strategy on the part of the Appellants to restrict all        measures, including in regard to the direct export ban involving
exports the judgment manifestly misconstrues the evidence             nine dealers, did not qualify as attenuating circumstances.
and fails to state adequate reasons. This error pervades the
judgment’s assessment of the bonus policy and the level of the
fine.
                                                                      (1) OJ C 61, 24.02.2001, p. 17.
                                                                      (2) 2001/146/EC: Commission Decision of 20 September 2000
The Appellants’ bonus policy differed in a number of crucial              relating to a proceeding under Article 81 of the EC Treaty (Case
aspects from the bonus system at issue in the Volkswagen                  COMP/36.653 Opel) (Text with EEA relevance.)(notified under
case, in particular as the bonus payments were limited to                 document number C(2000) 2707) (OJ 2001 L 59, p. 1).
temporary promotion campaigns for selected car models that
were slow-movers on the domestic market; the bonus policy
was not combined with a limited supply policy and list prices
allowed dealers to generate a profit margin on export sales
irrespective of campaign bonus payments. Opel Nederland’s
campaign bonus policy, moreover, distinguished itself from


title: Case C-560/14: Judgment of the Court (Third Chamber) of 9 February 2017 (request for a preliminary ruling from the Supreme Court — Ireland) — M v Minister for Justice and Equality, Ireland, Attorney General (Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2004/83/EC — Minimum standards for the qualification and status of third country nationals or stateless persons as refugees — Application for subsidiary protection — Lawfulness of the national procedure for examining an application for subsidiary protection made after the rejection of an application for refugee status — Right to be heard — Scope — Right to an interview — Right to call and cross-examine witnesses)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/11

         Judgment of the Court (Third Chamber) of 9 February 2017 (request for a preliminary ruling from the Supreme Court — Ireland) — M v Minister for Justice and Equality, Ireland, Attorney General
   (Case C-560/14) (1)

   ((Reference for a preliminary ruling - Area of freedom, security and justice - Directive 2004/83/EC - Minimum standards for the qualification and status of third country nationals or stateless persons as refugees - Application for subsidiary protection - Lawfulness of the national procedure for examining an application for subsidiary protection made after the rejection of an application for refugee status - Right to be heard - Scope - Right to an interview - Right to call and cross-examine witnesses))
   (2017/C 104/17)
   Language of the case: English

      Referring court

   Supreme Court

      Parties to the main proceedings

      Applicant: M

      Defendants: Minister for Justice and Equality, Ireland, Attorney General

      Operative part of the judgment

   The right to be heard, as applicable in the context of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, does not require, as a rule, that, where national legislation, such as that at issue in the main proceedings, provides for two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place.
   An interview must nonetheless be arranged where specific circumstances, relating to the elements available to the competent authority or to the personal or general circumstances in which the application for subsidiary protection has been made, render it necessary in order to examine that application with full knowledge of the facts, a matter which is for the referring court to establish.

      (1)  OJ C 81, 9.3.2015.


title: Case C-193/10: Reference for a preliminary ruling from the Finanzgericht, Düsseldorf (Germany) lodged on 19 April 2010 — KMB Europe BV v Hauptzollamt Duisburg

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/11

         Reference for a preliminary ruling from the Finanzgericht, Düsseldorf (Germany) lodged on 19 April 2010 — KMB Europe BV v Hauptzollamt Duisburg
   (Case C-193/10)
   ()
   2010/C 209/17
   Language of the case: German

      Referring court

   Finanzgericht Düsseldorf

      Parties to the main proceedings

      Applicant: KMB Europe BV

      Defendant: Hauptzollamt Duisburg

      Question referred

   Is heading 8521 of the Combined Nomenclature in the version of Annex I to Council Regulation (EEC) No 2658/87 on the tariff and the statistical nomenclature and on the Common Customs Tariff (1), [as amended] by Commission Regulation (EC) No 1549/2006 of 17 October 2006 (2), to be interpreted as meaning that apparatus such as the MP3 media player described below is not to be classified under that heading because account must be taken of its principal function as sound reproducing apparatus or because its capability of reproducing individual pictures and films is limited by a small display with small resolution and low frame frequency?

      (1)  OJ 1987 L 256, p. 1.

      (2)  Commission Regulation (EC) No 1549/2006 of 17 October 2006 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2006 L 301, p. 1).


title: Case C-510/11 P: Appeal brought on 29 September 2011 by Kone Oyj, Kone GmbH, Kone BV against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-151/07: Kone Oyj, Kone GmbH, Kone BV v European Commission

text:
               10.12.2011

               EN

               Official Journal of the European Union

               C 362/13

         Appeal brought on 29 September 2011 by Kone Oyj, Kone GmbH, Kone BV against the judgment of the General Court (Eighth Chamber) delivered on 13 July 2011 in Case T-151/07: Kone Oyj, Kone GmbH, Kone BV v European Commission
   (Case C-510/11 P)
   2011/C 362/20
   Language of the case: English

      Parties

      Appellants: Kone Oyj, Kone GmbH, Kone BV (represented by: T. Vinje, Solicitor, D. Paemen, Advocaat, A. Tomtsis, Dikigoros, A. Morfey, Solicitor)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside in whole the Judgment of the General Court;

               —

               annul Article 2(2) of the Decision in so far as it imposes a fine on Kone Oyj and Kone GmbH, and impose either no fine or a fine at a lower amount than determined in the 21 February 2007 Decision of the Commission relating to a proceeding under Article 101 TFEU (Case COMP/E-1/38.823 — PO/Elevators and Escalators) (the ‘Decision’);

               —

               annul Article 2(4) of the Commission Decision in so far as it imposes a fine on Kone Oyj and Kone BV, and set the fine at a lower amount than determined in the Commission Decision; and

               —

               order the Commission to bear the costs.

      Pleas in law and main arguments

   The Appellants submit that the contested judgment should be set aside on the following grounds:

               As regards the infringement in Germany, the General Court erred in law in finding that the Commission did not manifestly exceed its margin of appreciation in assessing Kone's contribution to the opening of the investigation and the finding of the infringement in the Decision. The General Court's error of law meant that Kone was wrongly disqualified from immunity under the 2002 Notice on immunity from fines and reduction of fines in cartel cases (the ‘2002 Notice’).

               The General Court also erred in law in holding that the Commission's breach of the 2002 Notice did not violate the principle of legitimate expectations.

               As regards the infringement in the Netherlands, the General Court erred in law in upholding the Commission's refusal to grant Kone any reduction in the fine under the 2002 Notice, because of Kone's characterisation of the information it provided in its leniency application. As a result, the GC upheld the Commission's decision insofar as it refused to grant Kone any reduction in the fine for the Netherlands cartel.

               The General Court also erred in law in holding that the Commission did not breach the principle of equal treatment in concluding that Kone's submissions in respect of the Dutch cartel were not comparable to ThyssenKrupp's submissions in respect of the cartel in Belgium.


title: Order of the Court of First Instance of 14 June 2002 in Case T-325/99: Generale Conserve SpA v Commission of the European Communities (Common customs tariff — No post clearance recovery of import duties — No need to adjudicate)

text:
C 202/26               EN                       Official Journal of the European Communities                                        24.8.2002
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                lawyer, with an address for service in Luxembourg, against
                                                                           Commission of the European Communities (Agents: R. Tricot
                          of 12 June 2002                                  and M. Moretto) — application for annulment of Commission
                                                                           Decision C(1999)1050 of 27 April 1999 (REC 1/98) rejecting
in Case T-187/01: Arnaldo Mellone v Commission of the                      the request not to proceed with the post-clearance recovery of
                  European Communities (1)                                 import duties in respect of canned tuna from Turkey — the
                                                                           Court of First Instance (Fourth Chamber), composed of
(Officials — Staff reports — Action for annulment —                        M. Vilaras, President, V. Tiili and P. Mengozzi, Judges; H. Jung,
                       Action for damages)                                 Registrar, made an order on 14 June 2002, the operative part
                                                                           of which is as follows:
                          (2002/C 202/39)
                                                                           1.   There is no need to adjudicate on the present action.
                   (Language of the case: French)
                                                                           2.   The Commission shall bear all the costs.
In Case T-187/01: Arnaldo Mellone, an official of the Com-
mission of the European Communities, residing in Brussels,                 (1) OJ 1999 C 281.
represented by E. Boigelot, avocat, with an address for service
in Luxembourg, v Commission of the European Communities
(Agents: M. Langer and J. Currall) — application, first, for
annulment of the decision of 10 July 2000 by which the
Director-General of the Employment and Social Affairs Direc-
torate-General declared definitive the applicant’s staff report
for the period from 1 July 1995 to 30 June 1997 and, in so
far as may be necessary, annulment of the rectifying note of                     ORDER OF THE COURT OF FIRST INSTANCE
18 July 2000 and of the decision of the Vice-President of the
Commission of 24 April 2001 rejecting his complaint; second,
for a declaration by the Court that his staff report for                                           of 14 June 2002
1995–1997 has not been definitively drawn up and that it
should be removed from his personal file; and, third, for                  in Case T-325/99: Generale Conserve SpA v Commission
compensation for the professional and non-material damage                                of the European Communities (1)
suffered by the applicant, amounting to 10 000 euros — the
Court of First Instance (Single Judge: H. Legal); J. Palacio
González, Administrator, for the Registrar, has given a judg-             (Common customs tariff — No post clearance recovery of
ment on 12 June 2002, in which it:                                                    import duties — No need to adjudicate)
1.    Dismisses the application;                                                                   (2002/C 202/41)
2.    Orders the parties to bear their own costs.
                                                                                (Language of the case: Italian)
(1) OJ C 289 of 13.10.2001.
                                                                           In Case T-325/99: Generale Conserve SpA, established in
                                                                           Assago (Italy), represented by C. Cigolini, G. Durazzo and
                                                                           M. Hengel, lawyers, with an address for service in Luxembourg,
                                                                           against Commission of the European Communities (Agents:
      ORDER OF THE COURT OF FIRST INSTANCE                                 R. Tricot and M. Moretto) — application for annulment of
                                                                           Commission decision No C(1999) 1596 of 17 June 1999 (REC
                          of 14 June 2002                                  6/98) rejecting the request not to recover, post clearance,
                                                                           import duties by the applicant in respect of canned tuna from
in Case T-179/99: Sud Pesca SpA v Commission of the                        Turkey — the Court of First Instance (Fourth Chamber),
                  European Communities (1)                                 composed of M. Vilaras, President, V. Tiili and P. Mengozzi,
                                                                           Judges; H. Jung, Registrar, made an order on 14 June 2002,
(Common customs tariff — Failure to proceed to post-                       the operative part of which is as follows:
clearance recovery of import duties — Refund of import
                duties — No need to adjudicate)                            1.   There is no need to adjudicate on the present application.
                          (2002/C 202/40)                                  2.   The Commission shall bear all the costs.
                   (Language of the case: Italian)
                                                                           (1) OJ 2000 C 63.
In Case T-179/99: Sud Pesca SpA, established in Aspra
Baghiera (Italy), represented by G. Amenta and M. Merola,


title: Case C-134/11: Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 18 March 2011 — Jürgen Blödel-Pawlik v HanseMerkur Reiseversicherung AG

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/8

         Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 18 March 2011 — Jürgen Blödel-Pawlik v HanseMerkur Reiseversicherung AG
   (Case C-134/11)
   2011/C 179/13
   Language of the case: German

      Referring court

   Landgericht Hamburg

      Parties to the main proceedings

      Applicant: Jürgen Blödel-Pawlik

      Defendant: HanseMerkur Reiseversicherung AG

      Question referred

   Does Article 7 of Directive 90/314/EEC (1) of 13 June 1990 on package travel, package holidays and package tours also apply when the travel operator becomes insolvent because from the beginning with fraudulent intent it used all the money collected from the travellers for an improper purpose and it was never intended that the trip would be organised?

      (1)  Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).


title: Case T-151/05: Judgment of the Court of First Instance of 7 May 2009 — NVV and Others v Commission (Competition — Concentrations — Markets for the purchase of live pigs or sows for slaughter — Decision declaring the concentration compatible with the common market — Definition of the relevant geographic market — Duty of care — Duty to state reasons)

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/33

         Judgment of the Court of First Instance of 7 May 2009 — NVV and Others v Commission
   (Case T-151/05) (1)

   (Competition - Concentrations - Markets for the purchase of live pigs or sows for slaughter - Decision declaring the concentration compatible with the common market - Definition of the relevant geographic market - Duty of care - Duty to state reasons)
   2009/C 153/63
   Language of the case: Dutch

      Parties

      Applicants: Nederlandse Vakbond Varkenshouders (NVV) (Lunteren, Netherlands); Marius Schep (Lopik, Netherlands); and Nederlandse Bond van Handelaren in Vee (NBHV) (The Hague, Netherlands) (represented by: initially, J. Kneppelhout and M. van der Kaden and, subsequently, J. Kneppelhout, lawyers)

      Defendant: Commission of the European Communities (represented by: initially, A. Whelan and S. Noë and, subsequently, A. Bouquet and S. Noë, Agents)

      Intervener in support of the defendant: Sovion NV (Best, Netherlands) (represented by: J. de Pree and W. Geursen, lawyers)

      Re:

   Annulment of the Commission decision of 21 December 2004 declaring a concentration compatible with the common market and with the EEA Agreement (Case No COMP/M.3605 — Sovion/HMG)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Nederlandse Vakbond Varkenshouders (NVV), Marius Schep and Nederlandse Bond van Handelaren in Vee (NBHV) to bear their own costs and to pay those incurred by the Commission and by Sovion NV.

      (1)  OJ C 171, 9.7.2005.


title: Case C-198/08: Judgment of the Court (Third Chamber) of 4 March 2010 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 95/59/EC — Taxes other than turnover taxes which affect the consumption of manufactured tobacco — Article 9(1) — Free determination, by manufacturers and importers, of the maximum retail selling prices of their products — National legislation imposing a minimum retail selling price for cigarettes and a minimum retail selling price for fine-cut tobacco — Justification — Protection of public health — World Health Organisation Framework Convention on Tobacco Control)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/6

         Judgment of the Court (Third Chamber) of 4 March 2010 — European Commission v Republic of Austria
   (Case C-198/08) (1)

   (Failure of a Member State to fulfil obligations - Directive 95/59/EC - Taxes other than turnover taxes which affect the consumption of manufactured tobacco - Article 9(1) - Free determination, by manufacturers and importers, of the maximum retail selling prices of their products - National legislation imposing a minimum retail selling price for cigarettes and a minimum retail selling price for fine-cut tobacco - Justification - Protection of public health - World Health Organisation Framework Convention on Tobacco Control)
   2010/C 113/08
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: W. Mölls and R. Lyal, Agents, Agents)

      Defendant: Republic of Austria (represented by: E. Riedl, J. Bauer and C. Pesendorfer, Agents)

      Re:

   Failure by a Member State to fulfil obligations — Infringement of Article 9(1) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40) — Fixing of the minimum retail selling prices for manufactured tobacco by the public authorities

      Operative part of the judgment

   The Court:

               1.

               Declares that, by adopting and maintaining in force legislation by which the public authorities fix minimum prices for the retail sale of cigarettes and fine-cut tobacco for the rolling of cigarettes, the Republic of Austria has failed to fulfil its obligations under Article 9(1) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, as amended by Council Directive 2002/10/EC of 12 February 2002;

               2.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 197, 2.8.2008.


title: Judgment of the Court (Second Chamber) of 21 June 2001 in Case C-206/99 (reference for a preliminary ruling from the Tribunal Tributário de Primeira Instância do Porto): SONAE — Tecnologia de Informação SA v Direcção-Geral dos Registos e Notariado (Raising of capital — Directive 69/335/EEC — "Duties paid by way of fees or dues" — Charge for entry in the commercial register)

text:
28.7.2001                EN                      Official Journal of the European Communities                                              C 212/7
      approved hallmark struck by the Assay Master which is                 3.    Orders the United Kingdom of Great Britain and Northern
      appointed by the Wardens and Commonalty of Gold-                            Ireland to pay its own costs.
      smiths of the city of Dublin;
                                                                            (1) OJ C 86 of 27.3.1999.
—     by establishing differences between approved hallmarks
      struck on articles manufactured in Ireland and those
      hallmarks of the same type struck on articles imported
      from other Member States,
Ireland has failed to fulfil its obligations under Article 30 of
the EC Treaty (now, after amendment, Article 28 EC) — the
Court (Fifth Chamber), composed of: A. La Pergola, President                                  JUDGMENT OF THE COURT
of the Chamber, M. Wathelet, D.A.O. Edward, P. Jann (Rappor-
teur) and C.W.A. Timmermans, Judges; L.A. Geelhoed, Advo-                                            (Second Chamber)
cate General; D. Louterman-Hubeau, Head of Division, for the
Registrar, has given a judgment on 21 June 2001, in which it:
                                                                                of 21 June 2001
1.    Declares that:                                                        in Case C-206/99 (reference for a preliminary ruling from
                                                                            the Tribunal Tributário de Primeira Instância do Porto):
      —     by prohibiting the marketing in Ireland with the descrip-       SONAE — Tecnologia de Informação SA v Direcção-
            tion and indication of fineness which they bear in their                        Geral dos Registos e Notariado (1)
            country of origin, of articles made from precious metals
            (gold, silver or platinum) lawfully manufactured and            (Raising of capital — Directive 69/335/EEC — ‘Duties paid
            marketed in other Member States but not complying with          by way of fees or dues’ — Charge for entry in the commercial
            the Irish provisions concerning standards of fineness, or                                      register)
            by obliging these imports to replace their hallmarks with
            those for the appropriate lower official Irish standard of                                 (2001/C 212/11)
            fineness;
      —     by requiring articles made from precious metals imported                          (Language of the case: Portuguese)
            from another Member State, and marketed in Ireland, to
            bear a sponsor’s mark indicative of the maker, worker or
            dealer in such articles, registered by the Wardens and          (Provisional translation; the definitive translation will be published
            Commonalty of Goldsmiths of the city of Dublin which                                in the European Court Reports)
            appoints the Assay Master by which these articles are
            intended to be struck with the approved hallmark, when          In Case C-206/99: reference to the Court under Article 177 of
            these articles already bear a sponsor’s mark conforming to      the EC Treaty (now Article 234 EC) from the Tribunal
            the legislation of the Member State of origin;                  Tributário de Primeira Instância do Porto (Fiscal Court of First
                                                                            Instance, Porto) (Portugal) for a preliminary ruling in the
      —     by requiring articles made from precious metals imported        proceedings pending before that court between SONAE —
            from another Member State, and marketed in Ireland,             Tecnologia de Informação SA and Direcção-Geral dos Registos
            which have been lawfully struck in another Member               e Notariado — on the interpretation of Articles 10 and 12 of
            State with a hallmark stamped by a body which offers            Council Directive 69/355/EEC of 17 July 1969 concerning
            guarantees of independence, and which offers appropriate        indirect taxes on the raising of capital (OJ, English Special
            information to consumers, to bear an approved hallmark          Edition 1969 II, p. 412), as amended by Council Directive
            struck by the Assay Master which is appointed by the            85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — the
            Wardens and Commonalty of Goldsmiths of the city of             Court (Second Chamber), composed of: V. Skouris, President
            Dublin or an international hallmark notified in accord-         of the Chamber, R. Schintgen (Rapporteur) and N. Colneric,
            ance with the Convention on the Control and Marking of          Judges; D. Ruı́z-Jarabo Colomer, Advocate General; R. Grass,
            Articles of Precious Metals; and                                Registrar, has given a judgment on 21 June 2001, in which it
                                                                            has ruled:
      —     by establishing differences between approved hallmarks
            struck on articles manufactured in Ireland and those            Article 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969
            hallmarks of the same type struck on articles imported          concerning indirect taxes on the raising of capital, as amended by
            from other Member States,                                       Council Directive 85/303/EEC of 10 June 1985, is to interpreted
                                                                            as meaning that charges for recording an increase in the share capital
                                                                            of a capital company in a commercial register, which increase without
      Ireland has failed to fulfil its obligations under Article 30 of      upper limit in direct proportion to the nominal capital subscribed and
      the EC Treaty (now, after amendment, Article 28 EC);
                                                                            are not calculated on the basis of the cost of the service rendered, such
                                                                            as those at issue in the main proceedings, are not duties paid by way
2.    Orders Ireland to pay the costs;                                      of fees or dues.
 ---pagebreak--- C 212/8                   EN                      Official Journal of the European Communities                                          28.7.2001
The existence of a maximum which those charges cannot exceed is              1.    Declares that, by failing to adopt, within the prescribed period,
not sufficient to make them duties paid by way of fees or dues if that             all the laws, regulations and administrative measures necessary
maximum is not established reasonably by reference to the cost of the              to comply with Directive 98/4/EC of the European Parliament
service in respect of which the charges are levied.                                and of the Council of 16 February 1998 amending Directive
                                                                                93/38/EEC coordinating the procurement procedures of entities
                                                                                operating in the water, energy, transport and telecommuni-
Furthermore, a Member State cannot, without making the charges in                  cations sectors, the French Republic has failed to comply with
question cease to be duties paid by way of fees or dues, introduce into            its obligations under that directive.
the scale of charges payable for a service rendered an element of
solidarity between large and small companies, by establishing, for           2.    Orders the French Republic to pay the costs.
one and the same service, a higher charge for capital companies with
significant share capital than for those with less share capital, where
that difference in the charge bears no relation to the cost of the service.  (1) OJ C 28 of 27.1.2001.
(1) OJ C 226 of 7.8.1999.
                                                                                ORDER OF THE COURT
                                                                                of 29 May 2001
                   JUDGMENT OF THE COURT
                                                                             in Case C-1/00 SA: Cotecna Inspection SA v Commission
                           (Fourth Chamber)                                                  of the European Communities (1)
                            of 21 June 2001                                  (Application for authorisation to serve a garnishee order on
                                                                                the Commission of the European Communities)
in Case C-439/00: Commission of the European Communi-
                       ties v French Republic (1)                                                       (2001/C 212/13)
(Failure by Member State to fulfil its obligations — Directive                                    (Language of the case: French)
98/4/EC — Failure to transpose within the prescribed period)
                            (2001/C 212/12)                                  (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                      (Language of the case: French)                         In Case C-1/00 SA: Cotecna Inspection SA, established in
                                                                             Geneva (Switzerland), represented by J. H. J. Bourgeois, Avocat
                                                                             v Commission of the European Communities (Agents:
(Provisional translation; the definitive translation will be published       M. De Pauw and B. Martenczuk) — application for authoris-
                     in the European Court Reports)                          ation to serve a garnishee order on the Commission of
                                                                             the European Communities — the Court, composed of:
                                                                             G. C. Rodrı́guez Iglesias, President, C. Gulmann, A. La Pergola,
In Case C-439/00: Commission of the European Communities                     M. Wathelet and V. Skouris, Presidents of Chambers,
(Agent: M. Nolin) v French Republic (Agent: G. de Bergues and                D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen,
S. Pailler) — application for a declaration that, by failing to              F. Macken, N. Colneric, S. von Bahr (Rapporteur), J. N. Cunha
adopt all the laws, regulations and administrative measures                  Rodrigues and C.W.A. Timmermans, Judges; D. Ruiz-Jarabo
necessary to comply with Directive 98/4/EC of the European                   Colomer, Advocate General; R. Grass, Registrar, has given an
Parliament and of the Council of 16 February 1998 amending                   order on 29 May 2001, in which it:
Directive 93/38/EEC coordinating the procurement procedures
of entities operating in the water, energy, transport and                    1)    Dismisses the application.
telecommunications sectors (OJ 1998 L 101, p. 1) or, at all
events, by failing to communicate the same to the Commission,                2)    Orders Cotecna Inspection SA to pay the costs.
the French Republic has failed to comply with its obligations
under that directive — the Court (Fourth Chamber), composed
of: A. La Pergola, President of the Chamber, S. von Bahr                     (1) OJ C 45 of 10.2.2001.
(Rapporteur) and C.W.A. Timmermans, Judges; J. Mischo,
Advocate General; R. Grass, Registrar, has given a judgment
on 21 June 2001, in which it:


title: Case C-140/08: Reference for a preliminary ruling from the Tallinna Halduskohus (Estonia) lodged on 7 April 2008 — Rakvere Lihakombinaat AS v Põllumajandusminister and Maksu- ja Tolliameti Ida maksu- ja tollikeskus

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/13

         Reference for a preliminary ruling from the Tallinna Halduskohus (Estonia) lodged on 7 April 2008 — Rakvere Lihakombinaat AS v Põllumajandusminister and Maksu- ja Tolliameti Ida maksu- ja tollikeskus
   (Case C-140/08)
   (2008/C 171/23)
   Language of the case: Estonian
   Referring court
   Tallinna Halduskohus
   Parties to the main proceedings

      Applicant: Rakvere Lihakombinaat AS

      Defendants: Põllumajandusminister and Maksu- ja Tolliameti Ida maksu- ja tollikeskus
   Questions referred

               1.

               Must frozen mechanically separated chicken meat (mechanically separated meat was defined for the first time in point 1.14 of Annex I to Regulation (EC) No 853/2004 (1) of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin) be classified as from 1 May 2004 under CN code 0207 14 10 or CN code 0207 14 99 in Annex I to Council Regulation (EEC) No 2658/87 (2) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff?

               2.

               If the product described in Question 1.1 must be classified under CN code 0207 14 10, to seek a preliminary ruling on the following question:

                           2.1

                           Does Article 4(1) and (2) of Commission Regulation (EC) No 1972/2003 (3) preclude the ascertainment of the amount of an operator's surplus stock by automatically deducting from the surplus stock (regarded as transitional stock) the operator's average stock as at 1 May of the four years of activity preceding 1 May 2004, multiplied by 1.2?
                           If the answer is in the affirmative, would the answer be different if in determining the amount of the transitional stock and surplus stock it were possible also to take into account the growth of the operator's production, processing or sales volume, the maturation period of the agricultural product, the time when the stocks were built up, and other circumstances independent of the operator?

                           2.2

                           Is it compatible with the objective of Commission Regulation (EC) No 1972/2003 to levy the surplus stock charge where the operator is found to have a surplus stock as at 1 May 2004 but the operator shows that he has not obtained a real advantage in terms of a price difference from marketing the surplus stock after 1 May 2004?

      (1)  OJ L 139, 30.4.2004, p. 55.

      (2)  OJ L 256, 7.9.1987, p. 1.

      (3)  Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ L 293, 11.11.2003, p. 3).


title: Case T-108/14: Action brought on 17 February 2014 — Burazer and Others v European Union

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/37

         Action brought on 17 February 2014 — Burazer and Others v European Union
   (Case T-108/14)
   2014/C 142/49
   Language of the case: Croatian

      Parties

      Applicants: Drago Burazer (Zagreb, Croatia), Nikolina Nežić (Zagreb), Blaženka Bošnjak (Sv. Ivan Zelina, Croatia), Bosiljka Grbašić (Križevci, Croatia), Tea Tončić (Pula, Croatia), Milica Bijelić (Dubrovnik, Croatia), Marijana Kruhoberec (Varaždin, Croatia) (represented by: Mato Krmek, lawyer)

      Defendant: European Union

      Form of order sought

   The applicants claim that the Court should:

               —

               declare, by a judgment, that the European Union must compensate the applicants for the injury they suffered as a result of the European Commission’s partial failure to fulfil its obligation to monitor the implementation of the Treaty of Accession of the Republic of Croatia to the European Union, imposed on that institution under Article 36 of the Act of Accession (Annex VII, point 1), as regards the introduction of the bailiff service in the legal order of the Republic of Croatia;

               —

               suspend deliberations regarding the amount of the claim until the judgment in the present case has become final;

               —

               reserve the decision as to costs for the later judgment.

      Pleas in law and main arguments

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

               1.

               First plea in law: the European Commission failed to fulfil its obligations under Article 36 of the Act of Accession (Annex VII, point 1), which forms an integral part of the Treaty of Accession of the Croation Republic to the European Union concluded between the Croation Republic and the Member States of the European Union [Narodne novine — Međunarodni ugovori no 2/12 (Official Journal — International Treaties)], in failing to prevent the derogation from the legislation establishing and governing the profession of bailiff, which the Republic of Croatia had adopted during the negotiations on accession to the European Union. Article 36 of the Act of Accession tasks the Commission with monitoring the commitments entered into by the Republic of Croatia during the negotiations on accession to the European Union and, accordingly, the legal obligations assumed by the Republic of Croatia to establish a bailiff service and to ensure the full implementation of that service in the Croatian legal order by 1 January 2012 at the latest. However, the European Commission does not have the power to allow any unilateral amendment of the obligations thus entered into by the Republic of Croatia.

               2.

               Second plea in law: by the abovementioned infringement, the European Commission directly injured the applicants, who had been appointed as bailiffs and who had legitimate expectations that they would take up their duties on 1 January 2012.

               3.

               Third plea in law: in failing to fulfil its obligations, the Commission clearly and seriously exceeded the limits of its discretion and, in frustrating the limited expectations of the applicants (appointed bailiffs), caused them significant material and non-material damage which the European Union must make good in accordance with the second paragraph of Article 340 TFEU.


title: Case T-386/04: Action brought on 27 September 2004 by Eridania Sadam S.p.A. and Others against the Commission of the European Communities

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/28

         Action brought on 27 September 2004 by Eridania Sadam S.p.A. and Others against the Commission of the European Communities
   (Case T-386/04)
   (2004/C 284/55)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 24 September 2004 by Eridania Sadam S.p.A. and Others, represented by the lawyers Gualtiero Pittalis, Ivano Vigliotti, Gian Michele Roberti, Palo Ziotti and Alessandra Franchi.
   The applicants claim that the Court should:

               —

               annul Article 1(d) of Commission Regulation (EC) No 1216/2004 of 30 June 2004 fixing the derived intervention price for white sugar for the marketing year 2004/2005 for all areas in Italy;

               —

               as a secondary matter, declare, pursuant to Article 241 EC, Article 2 of Council Regulation (EC) No 1260/2001 unlawful and inapplicable, inasmuch as it does not allow the Commission to take into consideration the existence of imports bearing zero duty and not subject to a quota for the purposes of the fixing of the derived intervention price;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   In this action the companies Eridania Sadam S.p.A., Italia Zuccheri S.p.A., Zuccherificio del Molise S.p.A., Cooperativa Produttori Bieticoli a.r.l. (CO.PRO.B.) and Società Fondiaria Romagnola S.p.A. (SFIR) challenge, pursuant to the fourth paragraph of Article 230 EC, Commission Regulation (EC) No 1216/2004 of 30 June 2004 fixing the derived intervention price for white sugar for the marketing year 2004/2005 for all areas in Italy (OJEC L 232 of 1 July 2004, p. 25).
   In support of their action the applicants raise the following pleas in law.
   First, the applicants maintain that the contested regulation is in various ways incompatible with the basic rules laid down by the Council in Regulation (EC) No 1260/2001 of 19 June 2001. Most particularly, they complain that the regulation at issue wrongly classes Italy as a ‘deficit area’ in respect of sugar supplies, applying to it as a result the derived prices rules (known as ‘regionalisation’).
   That classification, based as the applicants believe it to be, on an incorrect economic analysis of the situation, gives rise to damage to the applicants, inasmuch as the introduction of the derived prices brings in a rise in the costs of production for the sugar businesses operating within Italy. In particular, according to the applicants, when computing the domestic supply in Italy, the Commission failed to take account of the quantities of white sugar imported subject to zero duty from the Balkan States, imports that appreciably alter the conditions on which the common organisation of the market operates, causing major imbalances in that market, which are increased as a result of the applying of regionalisation to the Italian market.
   The applicants therefore consider that Article 1(d) of the contested regulation is at the same time defective in its grounds and potentially contrary, in its effects, to the Community principles underlying the Common Agricultural Policy and to the rules governing the common organisation of the market in sugar, and also to the principles of proportionality and equal treatment.
   If it should happen, which the applicants strongly contest, that the Court of First Instance should be unwilling to uphold the criticisms directed against the regulation at issue in the principal head of claim, the applicants request, as a secondary claim, that the Court should as an interlocutory matter declare unlawful and inapplicable Article 2 of Regulation No 1260/2001, in that it permits the Commission not to take account of the effect on trends in the market of imports not subject to duty or to a quota for the purposes of the fixing of the derived intervention price.


title: Case T-167/04: Action brought on 13 May 2004 by Asklepios Kliniken GmbH against the Commission of the European Communities

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/16

         Action brought on 13 May 2004 by Asklepios Kliniken GmbH against the Commission of the European Communities
   (Case T-167/04)
   (2004/C 201/36)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 May 2004 by Asklepios Kliniken GmbH, Königstein-Falkenstein (Germany), represented by K. Füßer, lawyer.
   The applicant claims that the Court should:

               —

               declare that, by failing to take any decision pursuant to Article 4(2), (3) or (4) of Regulation (EC) No 659/1999 in response to the applicant's letter of complaint of 20 January 2003, the Commission is in breach of its obligations under Article 88 EC and Article 10(1) and Article 13(1) of Regluation (EC) No 659/1999.

         Pleas in law and main arguments:
   The applicant is a company which specialises in hospital management. It is incorporated under private law and is owned exclusively by private interests. Since January 2003, it has been endeavouring to obtain a decision from the Commission under Article 4(2), (3) or (4) of Regluation (EC) No 659/1999 in relation to alleged aid in favour of publicly-owned hospitals in the Federal Republic of Germany.
   The applicant maintains that privately-owned hospitals must generally finance themselves from sums paid under health-care arrangements entered into with the appropriate health-insurance schemes and their central associations and, where applicable, from direct contributions for hospital construction under funding arrangements in place in the relevant Land. By contrast, publicly-owned hospitals also benefit from the fact that their regular operating losses are consistently covered by the relevant public authorities. In the applicant's opinion, those payments constitute aid within the meaning of Article 87(1) EC which not only is subject to a notification requirement under Article 88(3) EC but is also incompatible with the common market.
   The applicant also maintains that the complaint is well founded as the Commission has failed to act notwithstanding a duty to act upon receipt of the complaint.


title: Case C-184/06: Judgment of the Court (Sixth Chamber) of 13 December 2007 — Kingdom of Spain v Council of the European Union (Fisheries — Regulation (EC) No 51/2006 — Allocation of catch quotas among Member States — Act of Accession of the Kingdom of Spain — End of the transitional period — Requirement of relative stability — Principle of non-discrimination — New fishing opportunities)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/14

         Judgment of the Court (Sixth Chamber) of 13 December 2007 — Kingdom of Spain v Council of the European Union
   (Case C-184/06) (1)

   (Fisheries - Regulation (EC) No 51/2006 - Allocation of catch quotas among Member States - Act of Accession of the Kingdom of Spain - End of the transitional period - Requirement of relative stability - Principle of non-discrimination - New fishing opportunities)
   (2008/C 51/22)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

      Defendant: Council of the European Union (represented by: A. De Gregorio Merino and A. Westerhof Löfflerova, Agents)

      Intervener in support of the defendant): Commission of the European Communities (represented by: T. van Rijn and F. Jimeno Fernández, Agents)
   Re:
   Annulment of Council Regulation (EC) No 51/2006 of 22 December 2005 fixing for 2006 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2006 L 16, p. 1) — Discrimination — Application of Article 20(2) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Kingdom of Spain to pay the costs;

               3.

               Orders the Commission of the European Communities to bear its own costs.

      (1)  OJ C 154, 1.7.2007.


title: Case T-173/07: Action brought on 18 May 2007 — Reno Schuhcentrum v OHIM — Payless ShoeSource Worldwide (Payless ShoeSource)

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/30

         Action brought on 18 May 2007 — Reno Schuhcentrum v OHIM — Payless ShoeSource Worldwide (Payless ShoeSource)
   (Case T-173/07)
   (2007/C 170/59)
   Language in which the application was lodged: English
   Parties

      Applicant: Reno Schuhcentrum GmbH (Thaleischweiler-Fröschen, Germany) (represented by: S. Schäffner, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Payless ShoeSource Worldwide, Inc. (Topeka, United States)
   Form of order sought
   The applicant claims the Court to:

               —

               annul the decision of the First Board of Appeal of the OHIM of 28 February 2007 (Case R 1209/2005-1), dismissing the appeal relating to revocation proceedings No 731C 0000 186 163/1 (Community trade mark No 186 163 — Payless ShoeSource);

               —

               order the OHIM to pay the costs.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for revocation: The figurative Community trade mark ‘Payless ShoeSource’ for goods and services in Classes 25, 35 and 42 — application No 186 163

      Proprietor of the Community trade mark: Payless ShoeSource Worldwide, Inc.

      Party requesting the revocation of the Community trade mark: Reno Schuhcentrum GmbH

      Decision of the Cancellation Division: Rejected the revocation request partially, maintaining registration for goods and services in Class 25 in force.

      Decision of the Board of Appeal: Dismissed the appeal directed against the remaining goods and services in Class 25.

      Pleas in law: The applicant claims that the contested decision is vitiated by an essential procedural requirement in respect of Article 74 CTMR and the burden of proof. According to the applicant, in revocation proceedings, the burden of proof in respect of genuine use lies with the proprietor of the trade mark. Moreover, the applicant submits that the Office cannot examine the facts on its own motion but its examination should be confined to the assessment of the facts, evidence and arguments provided by the parties and the relief sought. Thus, the applicant claims that the Board's communication of 18 October 2006 on the basis of which the trade mark proprietor was invited to submit the originals of specific statutory declarations should be declared inadmissible, in particular since the Board had previously found the initial evidence submitted by the trade mark proprietor to be insufficient to establish genuine use.
   Furthermore, the applicant claims that the said originals were not submitted within the required deadline, in accordance to Article 74(2) CTMR and therefore should not be admitted.
   In addition, the applicant submits that the Board erred in its interpretation of the concept of genuine use infringing thereby Article 15 CTMR.


title: Case C-387/15: Request for a preliminary ruling from the Raad van State (Belgium) lodged on 17 July 2015 — Hilde Orleans and Others v Vlaams Gewest; other party: Gemeentelijk Havenbedrijf Antwerpen

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/18

         Request for a preliminary ruling from the Raad van State (Belgium) lodged on 17 July 2015 — Hilde Orleans and Others v Vlaams Gewest; other party: Gemeentelijk Havenbedrijf Antwerpen
   (Case C-387/15)
   (2015/C 354/20)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: Hilde Orleans, Rudi Van Buel, Marina Apers

      Defendant: Vlaams Gewest

      Intervener: Gemeentelijk Havenbedrijf Antwerpen

      Question referred

   The Regional Development Implementation Plan (GRUP) contains planning rules under which, in mandatory terms, the development of areas (more specifically, for seaport- and water-related businesses, for a logistics park, for waterway infrastructure and for traffic and transport infrastructure) which have ecological features (areas hosting a natural habitat type or the habitat of a species for which the special area of conservation concerned was designated) which make a contribution to the conservation objectives of the special areas of conservation concerned, is possible only after the creation of sustainable habitats in ecological core areas (designated within the Natura 2000 area) and following a decision by the Flemish Government preceded by an opinion from the Flemish administrative body responsible for nature conservation — which should form part of an application for a planning permit with a view to the development of the aforementioned facilities — that the sustainable creation of the ecological core areas has been successful.
   Can those planning rules with their envisaged positive developments of ecological core areas be taken into account in the determination, under Article 6(3) of the Habitats Directive (1), of potentially significant effects and/or in the making of an appropriate assessment, or can those planning rules be regarded only as ‘compensatory measures’ within the meaning of Article 6(4) of the Habitats Directive, in so far as the conditions laid down in that provision have been satisfied?

      (1)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).


title: Case T-169/17: Action brought on 17 March 2017 — Pethke v EUIPO

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/40

         Action brought on 17 March 2017 — Pethke v EUIPO
   (Case T-169/17)
   (2017/C 151/52)
   Language of the case: German

      Parties

      Applicant: Ralph Pethke (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

      Defendant: European Union Intellectual Property Office

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Decision PERS-AFFECT-16-134 of 17 October 2016, by which the applicant was transferred from the post of Director of the Operations Department to another post with the Observatory and was demoted to the post of Senior Expert with effect from 17 October 2016;

               —

               award compensation for the material and non-material damage suffered by the applicant by reason of the infringement of his rights; and

               —

               order EUIPO to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law: infringement of the provisions of the disciplinary code established by the Staff Regulations of Officials of the European Union (‘the Staff Regulations’)
               The applicant claims that his demotion from the post of Director of the Operations Department to that of Senior Expert without any career opportunity is not a legitimate transfer, but a punitive demotion that would have required prior disciplinary proceedings in the absence of any other legal basis. Through its actions, the defendant Office therefore infringed the provisions of Article 86 of the Staff Regulations and Annex IX thereto.

               2.

               Second plea in law: unlawful transfer/misuse of powers
               The applicant submits that the conditions governing a legitimate transfer have not been satisfied. The demotion and transfer of the applicant is not in the interests of the service, the various (changing) reasons submitted for the applicant’s transfer point to a misuse of powers and the equivalence principle required for a legitimate transfer has not been respected.

               3.

               Third plea in law: infringement of the principle prohibiting arbitrary treatment and the prohibition of discrimination on grounds of the applicant’s sex
               The applicant claims in this connection that his demotion and transfer, in order to raise the proportion of women in management, amounts to direct discrimination on grounds of his sex.

               4.

               Fourth plea in law: infringement of the principle of proportionality
               The applicant maintains that his disciplinary transfer is a disproportionate measure in the course of the internal reorganisation of the Office.

               5.

               Fifth plea in law: infringement of the right to good administration and of the duty of care — attack on the applicant’s physical and psychological integrity — harassment
               In connection with the fifth plea in law, the applicant claims that his ‘ambush-like’ demotion constitutes an attack on his physical and psychological integrity and falls short of even a minimum standard of good administration.
               A claim for financial compensation in respect of the material and non-material damage has arisen for the applicant by reason of the actions and omissions of the Office.


title: Case F-132/07: Judgment of the Civil Service Tribunal (Second Chamber) of 20 January 2011 — Strack v Commission (Civil service — Officials — Articles 17, 17a and 19 of the Staff Regulations — Application for authorisation to disclose documents — Application for authorisation to publish a text — Application for authorisation to use findings before national judicial authorities — Admissibility)

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/34

         Judgment of the Civil Service Tribunal (Second Chamber) of 20 January 2011 — Strack v Commission
   (Case F-132/07) (1)

   (Civil service - Officials - Articles 17, 17a and 19 of the Staff Regulations - Application for authorisation to disclose documents - Application for authorisation to publish a text - Application for authorisation to use findings before national judicial authorities - Admissibility)
   2011/C 72/54
   Language of the case: German

      Parties

      Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

      Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents, and B. Wägenbaur, lawyer)

      Re:

   Civil service — Annulment of several Commission decisions rejecting the applicant's request for authorisation to publish certain documents and to bring a complaint against (ex-) Commissioners and Commission agents — Claim for damages.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the application;

               2.

               Orders Mr Strack to pay the costs in their entirety.

      (1)  OJ C 107, 26.4.2008, p. 44.


title: Action brought on 15 March 1996 by the Luftfartsfunktionærerne against Commission of the European Communities (Case T-37/96)

text:
 18 . 5 . 96          EN                   Official Journal of the European Communities                                   No C 145/ 11
points out in that regard that, on the day in question, she            the EC Treaty and Article 53 of the EEA Agreement
was automatically entitled to sickness leave, since she had            ( IV/35.545 — LH/SAS )( 1 ).
sent to her institution in good time a certificate from her
attending medical practitioner prescribing an absence from            The applicant submitted its observations on the
work from 3 to 5 May.                                                  announcements which the Commission, pursuant to
                                                                      Articles 5 ( 2 ) and 16 ( 3 ) of Council Regulation ( EEC )
The institution was entitled to require her to undergo a              No 3975/87 of 14 December 1987 laying down the
medical examination, but was not authorized to leave the              procedure for the application of the rules on competition to
medical certificate out of account and to order the applicant          undertakings in the air transport sector ( 2), published in the
to return to work, even in the event that its medical officer          OfficialJournal ofthe European Communities, and claimed
disputed the validity of the medical certificate which had            in that regard that the Commission ought to make an
been produced . Article 59 ( 3 ) states that cases in dispute are     exemption under Article 85 ( 3 ) of the EC Treaty subject to
to be referred to the Invalidity Committee for an opinion. It         the condition that staff levels in the two undertakings would
follows that the contested decision is unlawful , inasmuch as         not be reduced by more than 1 % over a two-year period .
it was adopted without the Invalidity Committee having                The applicant subsequently learned from the daily press that
delivered an opinion confirming the conclusions of the                the Commission had decided to exempt the Agreement from
medical officer designated by the institution.                        the prohibition set out in Article 85 ( 1 ) of the EC Treaty ( see
                                                                      Article 85 ( 3 ) thereof) but that no conditions had, as
Lastly, the applicant observes that the medical officer did           requested by the applicant, been imposed in that regard
not undertake any clinical examination invalidating the               concerning employment in the two companies .
decision of her attending medical practitioner that she was
unfit for work from 3 to 5 May 1995 . She concludes from              The applicant contends that, even though the decision is
this that such an opinion, which is not based on any medical          addressed to SAS and Lufthansa, its members are directly
finding, has no scientific value and must be vitiated by a            and individually concerned by that decision and that it, as
manifest error of assessment .                                        the body responsible for safeguarding its members '
                                                                      interests, is consequently entitled to bring an action under
                                                                      Article 173 of the EC Treaty.
                                                                      The applicant also argues that the decision constitutes a
                                                                      breach of Article 1 90 of the EC Treaty inasmuch as it fails to
           Action brought on 15 March 1996 by the                     make clear to what extent the safeguarding of jobs was
     Luftfartsfunktionaererne against Commission of the               taken into account as a ground for the decision.
                    European Communities
                        ( Case T-37/96 )                              With regard to the substance of the case, the applicant
                                                                      submits that the decision amounts to a breach of the EC
                          ( 96/C 145/21 )
                                                                      Treaty and of the fundamental rights that form part of the
                                                                      Community's legal order in so far as the Commission failed
                (Language of tbe case: Danish)                        in its decision to impose any requirement regarding the
                                                                      preservation of jobs in SAS and Lufthansa . It argues in this
An action against the Commission of the European                      connection that the Commission, which is required under
Communities was brought before the Court of First                     Article 155 of the EC Treaty to ensure application of the
Instance of the European Communities on 15 March 1996                 provisions thereof, must, when applying Article 85 ( 3 ), take
by the Luftfartsfunktionaererne ( Air Transport Staff                 account of the objectives of the European Community as set
Association ), Kastrup ( Denmark ), represented by Christian          out in the Treaty. Under Article 2 thereof, one of the tasks of
Harlang, of the Copenhagen Bar.                                       the European Community is to promote a high level of
                                                                      employment, and it follows from Article 3 ( i ) that one of the
The applicant claims that the Court should :                         powers of the European Community is to introduce a policy
                                                                      in the social sphere . It follows from the case-law of the Court
— annul the Commission Decision of 16 January 1996                    of Justice and Court of First Instance, and is now laid down
     exempting, under Article 85 ( 3 ) of the EC Treaty, a            in Article F ( 2 ) of the Treaty on European Union, that
     Cooperation Agreement of 11 May 1995 between                     fundamental personal rights are included among the general
     Scandinavian Airlines System and Deutsche Lufthansa             principles of Community law. It is recognized in the
                                                                     constitutions of the Member States and follows from
     AG,
                                                                     numerous international treaties and conventions that the
— order the Commission to pay the costs of the                       right to work constitutes a general fundamental right. In
     proceedings .                                                   adopting the contested decision, the Commission, contrary
                                                                     to fundamental rights under Community law, failed to take
                                                                     account of employment and thereby infringed the right to
Pleas in law and main arguments                                      work of the applicant's members .
The applicant, which is a professional organization
representing staff at Copenhagen Airport, and almost all of           C ) OJ 1996 L 54 , p. 28 .
whose members are employed by Scandinavian Airlines                   ( 2 ) OJ 1987 L 374, p. 1 .
System ( SAS ), contests Commission Decision 96/180/EC of
16 January 1996 relating to a proceeding under Article 85 of