title: Case T-111/01: Action brought on 23 May 2001 by Saxonia Edelmetalle GmbH against the Commission of the European Communities

text:
C 227/26              EN                     Official Journal of the European Communities                                     11.8.2001
In support of its claim, the applicant pleads infringement of           Trade marks objected to       Verbal mark ‘Saint-Hubert 41’ —
Article 87(1) and (3)(c) of the EC Treaty. According to the             in the opposition pro-        Decision of 9 March 2001 in
applicant, the Commission, in its assessment of the aid                 cedure:                       procedure R-127/2000-1
awarded, did not take account of the specific, more expensive
production methods of the applicant required by the Nether-             Proprietor of the marks       the applicant
lands authorities whereby the smell is reduced. According to            objected to:
the applicant, this method of production is not obligatory in
the other Member States, as a result of which production is             Decision of the Oppo-         rejection of the applicant’s oppo-
cheaper. Furthermore, the applicant pleads infringement of              sition Division:              sition to the application for regis-
the Commission Decision of 6 July 1989 approving the                                                  tration of the mark ‘Hubert’
Bijdrageregeling Proefprojecten Mestverwerking and of
Article 88 of the EC Treaty. Finally, the applicant alleges             Decision of the Board of      rejection of the appeal lodged by
infringement of the duty to state reasons, the principle of             Appeal:                       the applicant
legitimate expectations and the right to a fair hearing.
                                                                        Grounds of claim:             violation of the notion of ‘likeli-
                                                                                hood of confusion’ referred to in
                                                                                Article 8(1)(b) of the Community
                                                                                Trade Mark Regulation (1)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1).
Action brought on 23 May 2001 by Védial S.A. against
   the Office for Harmonisation in the Internal Market
                        (Case T-110/01)
                        (2001/C 227/50)
                                                                        Action brought on 23 May 2001 by Saxonia Edelmetalle
                                                                        GmbH against the Commission of the European Com-
                  (Language of the case: French)                                                    munities
An action against the Office for Harmonisation in the Internal                                   (Case T-111/01)
Market was brought before the Court of First Instance of the
European Communities on 23 May 2001 by Védial S.A.,
established at Ludres (France), represented by Thierry van Innis                                 (2001/C 227/51)
and Geert Glas, avocats, with an address for service in
Luxembourg.
                                                                                (Language of the Case: German)
The applicant claims that the Court should:
—     annul the decision adopted on 9 March 2001 in pro-                An action against the Commission of the European Communi-
      cedure R-127/2000-1;                                              ties was brought before the Court of First Instance of the
                                                                        European Communities on 23 May 2001 by Saxonia Edelme-
—     order the Office to pay all the costs.                            talle GmbH, of Halsbrücke (Germany), represented by Dr Peter
                                                                        von Woedtke, lawyer.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments
                                                                        —     annul the decision of the Commission of the European
                                                                              Communities of 28 March 2001 (Decision C(2001)
Applicant for the Com-        France Distribution                             1028) on the State aid granted by Germany in favour of
munity trade mark:                                                            EFBE Verwaltungs GmbH & Co. Management KG (now
                                                                              Lintra Beteiligungsholding GmbH, together with Zeitzer
The Community trade           the semi-figurative mark ‘Hubert’               Maschinen, Anlagen Geräte GmbH, LandTechnik Schlüter
mark concerned:               — application No 108530                         GmbH, ILKA MAFA Kältetechnik GmbH, SKL Motoren-
                                                                              und Systembautechnik GmbH, SKL Spezialapparatebau
Goods or service con-         various food products including                 GmbH, Magdeburger Eisengießerei GmbH, Saxonia Edel-
cerned:                       milk, other dairy products, vin-                metalle GmbH and Gothaer Fahrzeugwerk GmbH) —
                              egar and sauces, together with                  State aid No C41/99 (EXN 49/95) Germany.
                              hotel and catering services
                              (Classes 29, 30 and 42)                   —     order the defendant to pay the costs.
 ---pagebreak--- 11.8.2001                EN                   Official Journal of the European Communities                                      C 227/27
Pleas in law and main arguments                                          Action brought on 22 May 2001 by Verónica Sabbag
                                                                           against the Commission of the European Communities
                                                                                (Case T-113/01)
In 1995 the Federal Republic of Germany gave notice of aid
for the privatisation of eight subsidiaries of the holding
                                                                                (2001/C 227/52)
company EFBE Verwaltungs GmbH, now Lintra Beteiligungs-
holding GmbH. By decision of 13 March 1996, communicated
by letter of 23 April 1996 (1), the Commission informed                                      (Language of the case: French)
Germany of its approval of aid for restructuring measures in
connection with the privatisation of Lintra Beteiligungsholding
GmbH.                                                                    An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 22 May 2001 by Verónica Sabbag,
                                                                         residing in Brussels, represented by Jean-Noël Louis and
By the contested decision of 28 March 2001, the defendant                Véronique Peere, avocats, with an address for service in
has required Germany to reclaim aid totalling                            Luxembourg.
DEM 34 978 000 from Lintra Beteiligungsholding GmbH and
the Lintra subsidiaries. Aid amounting to DEM 3 195 559 is               The applicant claims that the Court should:
to be reclaimed from the applicant. The defendant asserts that           —     annul the decision of the Selection Committee in compe-
that aid has been used improperly and in breach of the                         tition COM/R/A/01/1999 to award the applicant a mark
statements in the approved restructuring plan. According to                    insufficient for her to be included on the reserve list;
the defendant, the aid granted has reportedly been used to pay
for services provided by Lintra Beteiligungsholding GmbH.                —     order the defendant to pay the costs.
                                                                         Pleas in law and main arguments
The applicant submits that the contested decision is unlawful
and void in relation to it if only because it was not granted any        The applicant took part in competition COM/R/A/01/1999.
aid whatsoever in breach of the decision of 13 March 1996.               She is contesting her non-inclusion in the reserve list for the
                                                                         selection of temporary agents responsible for the management
                                                                         of technological research and development programmes.
According to the applicant, it is significant that the defendant         In support of her claim, the applicant alleges:
has not asserted that the applicant misused the restructuring
                                                                         —     infringement of the selection notice, of essential pro-
aid. The defendant has relied solely on presumptions in its
                                                                               cedural requirements and of the rules governing the
request for recovery. The applicant states that all the aid which
                                                                               functioning of selection boards, as well as a manifest
was received by it was used exclusively for restructuring
                                                                               error of assessment;
measures. Moreover, the amount to be reclaimed from it was
set totally arbitrarily.                                                 —     breach of the obligation to provide a statement of reasons;
                                                                         —     infringement of the principle of equal treatment;
                                                                         —     non-compliance with the obligation to have regard to the
Furthermore, all aid from the defendant or from Germany                        interests and welfare of officials and violation of the
went to Lintra Beteiligungsholding GmbH and was passed on                      principle of sound administration.
to its subsidiaries only indirectly. For that reason a notice for
recovery can be issued solely to the parent company.
The applicant is also of the view that no basis is apparent for
claiming that there is joint and several liability between Lintra
Beteiligungsholding GmbH and the subsidiaries. Such liability            Action brought on 23 May 2001 by Stefano Cocchi and
is presumably asserted by the defendant solely because the               Evi Hainz against the Commission of the European
parent company itself is insolvent.                                                                Communities
                                                                                (Case T-114/01)
(1) A summary was published at OJ No C 168, 12.6.1996, p. 10.                                     (2001/C 227/53)
                                                                                (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the


title: Case T-8/06: Judgment of the Court of First Instance of 6 October 2009 — FAB v Commission (State aid — Digital terrestrial television — Aid granted by the German authorities to broadcasters which use the digital terrestrial television network (DVB-T) in Berlin-Brandenburg — Decision declaring the aid incompatible with the common market and ordering its recovery — Action for annulment — Meaning of State aid — State resources — Compensation for discharging public service obligations — Aid intended to promote culture — Legitimate expectations)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/38

         Judgment of the Court of First Instance of 6 October 2009 — FAB v Commission
   (Case T-8/06) (1)

   (State aid - Digital terrestrial television - Aid granted by the German authorities to broadcasters which use the digital terrestrial television network (DVB-T) in Berlin-Brandenburg - Decision declaring the aid incompatible with the common market and ordering its recovery - Action for annulment - Meaning of State aid - State resources - Compensation for discharging public service obligations - Aid intended to promote culture - Legitimate expectations)
   2009/C 282/71
   Language of the case: German

      Parties

      Applicant: FAB Fernsehen aus Berlin GmbH (Berlin, Germany) (represented by: A. Böken, lawyer)

      Defendant: Commission of the European Communities (represented by: H. van Vliet and K. Gross, Agents)

      Intervener in support of the defendant: Deutscher Kabelverband eV (Berlin, Germany) (represented by: K. Struckmann, C Arhold and N. Wimmer, lawyers)

      Re:

   Application for annulment of Commission Decision 2006/513/EC of 9 November 2005 on the State Aid which the Federal Republic of Germany has implemented for the introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg (OJ 2006 L 200, p. 14).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders FAB Fernsehen aus Berlin GmbH to pay the costs.

      (1)  OJ C 86 of 8.4.2006.


title: Case C-385/02: Action brought on 28 October 2002 by the Commission of the European Communities against the Italian Republic

text:
21.12.2002               EN                    Official Journal of the European Communities                                     C 323/25
Action brought on 1 October 2002 by the Commission                        Reference for a preliminary ruling by the Korkein hallin-
of the European Communities against the Kingdom of the                    to-oikeus by order of that Court of 10 October 2002 in
                            Netherlands                                                      the case of Marie Lindfors
                                                                                (Case C-365/02)
                          (Case C-350/02)
                                                                                (2002/C 323/36)
                          (2002/C 323/35)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Korkein hallinto-
                                                                          oikeus (Supreme Administrative Court) of 10 October 2002,
An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities                   received at the Court Registry on 14 October 2002, for a
                                                                          preliminary ruling in the case of Marie Lindfors on the
on 1 October 2002 by the Commission of the European
                                                                          following question:
Communities, represented by M. Shotter and W. Wils, acting
as Agents.
                                                                          Is Article 1 of Directive 83/183/EEC on tax exemptions
                                                                          applicable to permanent imports from a Member State of the
                                                                          personal property of individuals (1) to be interpreted as mean-
The applicant claims that the Court should:                               ing that the autovero (car tax) charged under the Autoverolaki
                                                                          on a vehicle imported into Finland from another Member State
1.    Declare that, by failing to adopt all the laws, regulations         in connection with a transfer of residence is a consumption
      and administrative provisions required to transpose                 tax within the meaning of Article 1(1) of the directive, or is
      Articles 6 and 9 of Directive 97/66/EC ( 1) of the European         such autovero a specific duty or tax connected with the use of
      Parliament and of the Council of 15 December 1997                   such property within the country within the meaning of
      concerning the processing of personal data and the                  Article 1(2)?
      protection of privacy in the telecommunications sector
      into national law, or in any event by failing to forward            (1 ) OJ L 105 of 23 April 1983, p. 64.
      those provisions to the Commission, the Kingdom of the
      Netherlands has failed to fulfil its Treaty obligations;
2.    Order the Kingdom of the Netherlands to pay the costs.
                                                                          Action brought on 28 October 2002 by the Commission
                                                                          of the European Communities against the Italian Republic
Pleas in law and main arguments
                                                                                (Case C-385/02)
Incomplete transposition of Article 6 of Directive 97/66/EC:                                        (2002/C 323/37)
the Netherlands legislation, in particular Article 11.5 of
the Telecommunicatiewet (Telecommunications Law), requires
only that the traffic data referred to in the secondary law be
erased or made anonymous. This provision will be in accord-               An action against the Italian Republic was brought before the
ance with the Directive only if the relevant secondary legis-             Court of Justice of the European Communities on 28 October
lation contains an exhaustive citation of all traffic data apart          2002 by the Commission of the European Communities,
from those referred to in Article 6(2) and (3) of the Directive.          represented by Klaus Wiedner and Roberto Amorosi, acting as
The Commission has not as yet received any notification of                Agents.
provisions of secondary legislation with such an exhaustive
citation.
                                                                          The applicant claims that the Court should:
                                                                          —     Declare that the Italian Republic has failed to fulfil its
Article 9(a) of the Directive (tracing of malicious or nuisance                 obligations under Council Directive 93/37/EEC (1) of
calls) has not been transposed, as the Netherlands authorities                  14 June 1993 concerning the coordination of procedures
have acknowledged.                                                              for the award of public works contracts, in particular
                                                                                Article 7(3) thereof, when the Magistrato per il Po di
                                                                                Parma, a department of the Ministry of Public Works
( 1) OJ 1998 L 24, p. 1.                                                        (now the Ministry for Infrastructure and Transport),
                                                                                awarded the contracts for work on the construction and
                                                                                completion of an expansion basin to hold spate waters of
                                                                                the River Parma in the area of Marano in the Parma
 ---pagebreak--- C 323/26               EN                     Official Journal of the European Communities                                     21.12.2002
      municipal district, for the completion of an expansion             Action brought on 6 November 2002 by the Commission
      basin for the River Enza and for controlling spate                 of the European Communities against the Hellenic Repub-
      waters in the river Terdoppio-Canale Scolmatore to the                                                lic
      southwest of Cerano by means of a negotiated procedure
      which was not preceded by the publication of a tender
      notice when there no budgetary resources were available;                                      (Case C-390/02)
                                                                                (2002/C 323/38)
—     Order the Italian Republic to pay the costs.
                                                                         An action against the Hellenic Republic was brought before the
                                                                         Court of Justice of the European Communities on 6 November
                                                                         2002 by the Commission of the European Communities,
Pleas in law and main arguments                                          represented by Georgios Zavvos, of its Legal Service.
                                                                         The Commission claims that the Court should:
According to the Commission the negotiated procedure, which
was not preceded by the publication of a tender notice,
                                                                         —     declare that, by failing to adopt or, in the alternative, to
adopted by the Magistrato del Po di Parma when awarding
                                                                               notify to the Commission, within the time-limit laid
contracts relating to the completion of the abovementioned
                                                                               down, the laws, regulations and administrative provisions
work, does not conform with the requirements of Directive
                                                                               necessary to comply fully with Directive 99/42/EC (1) of
93/37/EC.
                                                                               the European Parliament and of the Council of 7 June
                                                                               1999 establishing a mechanism for the recognition of
                                                                               qualifications in respect of the professional activities
                                                                               covered by the directives on liberalisation and transitional
First, the Commission points out that the aforementioned                       measures and supplementing the general systems for the
awards, although described by the awarding authority as                        recognition of qualifications, the Hellenic Republic has
‘concessions solely for construction work’, must in actual fact                failed to fulfil its obligations under the EC Treaty;
be regarded as public works contracts.
                                                                         —     order the Hellenic Republic to pay the costs.
Article 1(d) of the directive defines ‘public works concession’
as a public works contract except for the fact that the
consideration for the works to be carried out consists either            Pleas in law and main arguments
solely in the right to exploit the construction or in this right
together with payment.
                                                                         In accordance with the third paragraph of Article 249 EC,
                                                                         directives are binding, as to the result to be achieved, upon
                                                                         each Member State to which they are addressed.
In the present case, however, the persons undertaking the
works have not been accorded any rights in the exploitation              Under the first paragraph of Article 10 EC, Member States are
of those works, so that the awards in question must be                   to take all appropriate measures, whether general or particular,
regarded as public works contracts, which is not disputed by
                                                                         to ensure fulfilment of the obligations arising out of the Treaty
the Italian authorities.                                                 or resulting from action taken by the institutions of the
                                                                         Community.
Secondly, the Commission points out that Article 6 of the                It is not disputed by the Hellenic Republic that it must adopt
directive provides that it applies to public works contracts             measures to comply with the abovementioned directive.
whose estimated value, including VAT, is EUR 5 000 000 or
greater. Thus, in view of the fact that the value of the contracts
in question exceeds the abovementioned threshold, they were              The Commission records that until now the Hellenic Republic
subject to the requirements of the directive.                            has not adopted the appropriate measures for the full incorpor-
                                                                         ation of the directive at issue into Greek law or, of course,
                                                                         notified such measures to the Commission.
( 1) OJ 1993 L 199, p. 54 .
                                                                         (1 ) OJ L 201, 31.7.1999, p. 77.


title: Case F-99/05: Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Wilms v Commission (Staff cases — Officials — Promotion — 2004 promotion exercise — Allocation of priority points — Application ratione temporis of provisions of the new staff regulations)

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/31

         Judgment of the Civil Service Tribunal (Third Chamber) of 31 January 2008 — Wilms v Commission
   (Case F-99/05) (1)

   (Staff cases - Officials - Promotion - 2004 promotion exercise - Allocation of priority points - Application ratione temporis of provisions of the new staff regulations)
   (2008/C 116/57)
   Language of the case: French
   Parties

      Applicant: Günter Wilms (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

      Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, agents, and D. Slater, lawyer)
   Re:
   First, annulment of the decisions awarding promotion points to the applicant in respect of the 2004 promotion exercise and, second, annulment of the merit list of Grade A*10 officials promoted to Grade A*11 in the 2004 promotion exercise
   Operative part of the judgment
   The Tribunal:

               1.

               Annuls the decision fixing the total of Mr Wilms' promotion points in the 2004 promotion exercise and the decision refusing him promotion in that exercise.

               2.

               Dismisses the remainder of the action.

               3.

               Orders the Commission of the European Communities to pay the costs.

      (1)  OJ C 10, 14.1.2006, p. 25 (Case originally registered at the Court of First Instance of the European Communities under T-386/05 and transferred to the European Union Civil Service Tribunal by order of 15 December 2005).


title: Reference for a preliminary ruling by the Pretura Circondariale, Rovigo (Sezione Distaccata de Adria), by order of that court of 13 July 1993 in criminal proceedings against Giuseppe Cordella (Case C-251/96)

text:
No C 294/4              EN                   Official Journal of the European Communities                                        5 . 10 . 96
    essentially the same employees continue to perform the              Are Presidential Decree No 915 of 10 September 1982 ( )
    same surveillance duties on essentially the same terms ,            and current Italian legislation in general relating to waste
    which are determined to a large extent by the body                  and secondary raw materials compatible with Directive
    awarding the contract ?                                             91 / 156/EEC of 18 March 1991 ( 2 )?
(') OJ No L 61 , 5 . 3 . 1977, p . 26 .                                 (') Erroneously given as 1992 in the order for reference .
                                                                        ( 2 ) OJ No L 78 , 1991 , p. 32 .
Reference for a preliminary ruling from the Tribunale Civile
e Penale, Brescia, by order of that court of 12 April 1996, in          References for a preliminary ruling from the
                                                                        Landesarbeitsgericht Hamm by orders of that court of 9 July
the criminal proceedings pending before it against Riccardo
                                Piccaluga                               1996 in the cases of Helmut Kampelmann v.
                                                                        Landschaftsverband Westfalen-Lippe ( C-253/96 ), Wilfried
                         ( Case C-250/96                                Tilsch v. Landschaftsverband Westfalen-Lippe ( C-254/96 ),
                            ( 96/C 294/05 )                             Dieter Klingelhöfer v. Landschaftsverband Westfalen-Lippe
                                                                        ( C-255/96 ), Heinrich Schmidt v. Landschaftsverband
Reference has been made to the Court of Justice of the                  Westfalen-Lippe ( C-256/96 ), Stadtwerke Witten GmbH v.
European Communities by an order of the Tribunale Civile                Andreas Schade ( C-257/96 ) and Klaus Haseley v.
e Penale ( Civil and Criminal District Court), Brescia , of                            Stadtwerke Altena GmbH ( C-258/96 )
12 April 1996 , which was received at the Court Registry on                               ( Cases C-253/96 to C-258/96 )
22 July 1996 , for a preliminary ruling in the criminal
                                                                                ( 96/C 294/07
proceedings pending before it against Riccardo Piccaluga on
the following questions :
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by orders of the Fourth Chamber of
1 . May the provisions of Italian law concerning                        the Landesarbeitsgericht ( Higher Labour Court ) Hamm of
    employment procurement and temporary work be                        9 July 1996 , which were received at the Court Registry on
    regarded as covered by the exercise of official authority           23 July 1996 , for a preliminary ruling in the cases of Helmut
    within the meaning of Article 66 in conjunction with                Kampelmann , Wilfried Tilsch , Dieter Klingelhöfer and
    Article 55 of the Treaty, in the light of their public-law
                                                                        Heinrich Schmidt v. Landesverband Westfalen-Lippe,
    character, inasmuch as they are intended to protect                 Stadtwerke Witten GmbH v. Andreas Schade and Klaus
    workers and the national economy ?
                                                                        Haseley v. Stadtwerke Altena GmbH for a preliminary
                                                                        ruling on the following questions :
2 . In the absence of specific implementing provisions , may
    the aforesaid provisions be regarded as directly                     1 . In view of the objective , stated in the preamble to
     applicable ( thereby undermining the public-law                           Council Directive 91 /533/EEC on an employer's
     objectives pursued by the Italian laws in force relating to              obligation to inform employees of the conditions
     employment procurement and temporary work ) and do                        applicable to the contract or employment
     they permit any person , whether public or private, to act               relationship ( J ), of 'providing employees with improved
     as an intermediary between persons seeking and persons                   protection against possible infringements of their rights
     offering employment and/or temporary work, without                        and to create greater transparency on the labour
     any specific control or authorization , where the                         market', is it the purpose of Article 2 of the said
     Member State is unable to satisfy fully the demand for                    Directive to modify ( in the employee 's favour ) the
     services on the labour market using its own                               burden of proof in that the list of minimum
     administrative machinery ?                                                requirements in Article 2 ( 2 ) of Directive 91 /533/EEC is
                                                                               intended to ensure that the employee does not encounter
                                                                               difficulties of proof regarding the listed points when
                                                                               enforcing his contractual rights in employment-law
                                                                               disputes ?
Reference for a preliminary ruling by the Pretura
Circondariale, Rovigo ( Sezione Distaccata de Adria ), by                2 . If the answer to Question 1 is in the affirmative : has
 order of that court of 13 July 1993 in criminal proceedings                   Article 2 ( 2 ) (c ) ( ii ) of Directive 91 /533/EEC been
                   against Giuseppe Cordelia                                   directly applicable since 1 July 1993 against the State
                          ( Case C-251 /96 )                                   acting as an employer in private law because :
                             ( 96/C 294/06 )                                   — the Federal Republic of Germany did not
                                                                                ( completely ) implement Directive 91 /533/EEC by
 Reference has been made to the Court of Justice of the                            30 June 1993 , the expiry date of the period for
 European Communities by order of the Pretura                                      implementation ,
 Circondariale ( District Magistrate 's Court ), Rovigo ( Adria
 Division ), of 13 July 1 993 , which was received at the Court                — the abovementioned provision of the Directive is
 Registry on 22 July 1996 , for a preliminary ruling in                            unconditional and can therefore be incorporated in
 criminal proceedings pending before it against Giuseppe                           national law without any further implementing
 Cordelia on the following question :                                               act ,


title: Case T-154/04: Action brought on 22 April 2004 by Daniel Bauwens against Commission of the European Communities

text:
               26.6.2004

               EN

               Official Journal of the European Union

               C 168/11

         Action brought on 22 April 2004 by Daniel Bauwens against Commission of the European Communities
   (Case T-154/04)
   (2004/C 168/21)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 April 2004 by Daniel Bauwens, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Nöel Louis and Etienne Marchal lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Annul the decision to close the procedure for drawing up his career development report and to dismiss his request to refer the case to the Joint Evaluation Committee;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant made an application to refer the matter to the Joint Evaluation Committee contesting his career development report, as countersigned by the countersigning officer. That request was held to be out of time, since it was brought after the deadline of five working days provided for by Article 7 of the General Provisions for Implementing Articles 43 and 45 of the Staff Regulations.
   The applicant challenges the decision dismissing his application and drawing up the final report, arguing that the deadline of five days should have been suspended, in accordance with the footnote to Article 7 of the General Provisions, on the ground that he was on leave for a period of two weeks starting from the day after the formal confirmation of the appraisal by the countersigning officer. In the same context, the applicant also relies on a manifest error of assessment and the infringement of the principles of sound management, sound administration and equal treatment.


title: Case T-7/10: Judgment of the General Court of 17 May 2011 — Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ v OHIM (υγεία) (Community trade mark — Application for the Community word mark υγεία — Absolute grounds for refusal — No distinctive character and descriptive character — No distinctive character acquired through use — Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 207/2009)

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/24

         Judgment of the General Court of 17 May 2011 — Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ v OHIM (υγεία)
   (Case T-7/10) (1)

   (Community trade mark - Application for the Community word mark υγεία - Absolute grounds for refusal - No distinctive character and descriptive character - No distinctive character acquired through use - Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 207/2009)
   2011/C 186/44
   Language of the case: Greek

      Parties

      Applicant: Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ AE (Athens, Greece) (represented by: K. Alexiou and S. Foteas, lawyers)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 4 November 2009 (Case R 190/2009-2), concerning an application for registration of the word sign υγεία as a Community trade mark

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ AE to pay the costs.

      (1)  OJ C 80, 27.3.2010.


title: Case T-673/14: Order of the General Court of 8 December 2015 — Italy v Commission (Action for annulment — State aid — Transport — Establishment of Airport Handling SpA — Decision to open the formal examination procedure provided for in Article 108(2) TFEU — Measure not open to challenge — Aid measures completely implemented by the date on which the action was brought — Inadmissibility)

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/18

         Order of the General Court of December 2015 — Italy v Commission
   (Case T-673/14) (1)

   ((Action for annulment - State aid - Transport - Establishment of Airport Handling SpA - Decision to open the formal examination procedure provided for in Article 108(2) TFEU - Measure not open to challenge - Aid measures completely implemented by the date on which the action was brought - Inadmissibility))
   (2016/C 059/19)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, and S. Fiorentino and A. De Stefano, avvocati dello Stato)

      Defendant: European Commission (represented by: G. Conte and S. Noë, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2014) 4537 final of 9 July 2014 to initiate a formal investigation procedure under Article 108(2) TFEU concerning the establishment of the company Airport Handling (State Aid SA.21420 (2014/C) (ex 20 14/NN) (ex 20 13/PN)).

      Operative part of the order

               1)

               The application is dismissed as inadmissible.

               2)

               The Italian Republic is ordered to pay the costs.

      (1)  OJ C 409, 17.11.2014.


title: Action brought on 30 June 1997 by Ireland against the Commission of the European Communities (Case C-239/97)

text:
  C 271 /4                EN                  Official Journal of the European Communities                                   6 . 9 . 97
                JUDGMENT OF THE COURT                                    Action brought on 30 June 1997 by Ireland against the
                           ( Sixth Chamber)                                       Commission of the European Communities
                                                                                ( Case C-239/97)
                            of 17 July 1997
                                                                                ( 97/C 271/06 )
  in Case C-190/95 (reference for a preliminary ruling from
  the Gerechtshof te Amsterdam ): ARO Lease BV v.
  Inspecteur van de Belastingdienst Grote Ondernemingen,
                             Amsterdam 0 )                               An action against the Commission of the European
                                                                         Communities was brought before the Court of Justice of
  (Sixth VAT Directive — Leasing company supplying                       the European Communities on 30 June 1997 by Ireland,
 passenger cars — Place where the supplier has established               represented by Mr Michael A. Buckley, Chief State
              its business — Fixed establishment)                        Solicitor, Agent for Ireland, assisted by Mr Paul Gallagher,
                             ( 97/C 271 /05 )                            SC, of the Bar of Ireland, and Ms Niamh Hyland, BL, of
                                                                         the Bar of Ireland, with an address for service in
                                                                         Luxembourg at the Embassy of Ireland, 28, route d'Arlon.
                  (Language of the case: Dutch)
                                                                         The Applicant claims that the Court should:
   (Provisional translation; the definitive translation will be
           published in the European Court Reports)
                                                                         — annul Commission Decision C(97) 693 of 16 April
                                                                             1997 concerning the reduction of assistance from the
 In Case C-190/95 : reference to the Court under Article 177                 European Regional Development Fund (hereafter
 of the EC Treaty from the Gerechtshof te Amsterdam, for                     'ERDF') to the operational programme for Tourism in
 a preliminary ruling in the proceedings pending before                      Ireland 1989—1993 within the Community support
 that court between ARO Lease BV and Inspecteur der                          framework for structural assistance under Objective 1
 Belastingdienst Grote Ondernemingen te Amsterdam — on                       in Ireland for the period 1989—1993 and amending
 the interpretation of Article 9 ( 1 ) of Sixth Council                      Decision C(89 ) 2258/7 of 21 December 1989 as last
 Directive 77/388/EEC of 17 May 1977 on the                                  amended by C(93 ) 3769 of 17 December 1993 ,
 harmonization of the laws of the Member States relating
 to turnover taxes — Common system of value added tax:
 uniform basis of assessment ( OJ 1977 L 145 , p. 1 ) — the             — order the Commission to pay the costs of this
 Court ( Sixth Chamber ), composed of: G. F. Mancini,                        application.
 President of Chamber, J. L. Murray, C. N. Kakouris
 ( Rapporteur), P. J. G. Kapteyn and G. Hirsch, Judges; N.
Fennelly, Advocate General; H. A. Riihl, Principal                      Pleas in law and main arguments adduced in support:
Administrator, for the Registrar, has given a judgment on
 17 July 1997, in which it has ruled:
                                                                        Applicable law
 On a proper construction of Article 9 (1 ) of Sixth Council
Directive 77/388/EEC of 17 May 1977 on the                              The decision under which the monies for the project at the
harmonization of the laws of the Member States relating                 Burren National Park and the Wicklow National Park
to turnover taxes — Common system of value added tax:                   were awarded was Decision C(89 ) 2258/7 of 21 December
uniform basis of assessment, a leasing company                           1989 as last amended by Decision C(93 ) 3769 of
established in one Member State does not supply services                17 December 1993 . The applicant is seeking the
from a fixed establishment in another Member State if it                annulment of the Commission decision of 16 April 1997
makes passenger cars available in the second State under                which seeks to amend this decision. The applicant submits
leasing agreements to customers established there, if its               that it is clear that the relevant law applicable to the
customers have entered into contact with it through self               present annulment action is Regulation ( EEC ) No 4253/
employed intermediaries established in the second State, if             88 ( M.
they have chosen their cars from dealers established in the
second State, if the leasing company has acquired the cars
in the second State, in which they are registered, and has              Substance
made them available to its customers under leasing
agreements drawn up and signed at its main place of
business, and if the customers bear maintenance costs and               i)  Lack of a significant change
pay road tax in the second State, but the leasing company
does not have an office or any premises on which to store
the cars there.                                                             The applicant submits that in view of the fact that the
                                                                            approval given by the sub-committee for Sub
(') OJ C 208 , 12 . 8 . 1995 .                                              Programmes 1 and 2 of the Tourism Operational
                                                                            Programme was given in general terms to 'the creation
                                                                            of a national park' and that the work done at the
                                                                            Burren National Park is part of the creation of a
 ---pagebreak--- 6 . 9 . 97             1 EN |                Official Journal of the European Communities                                  C 271 /5
      national park, there is no significant change affecting           Action brought on 30 June 1997 by the Kingdom of Spain
      the nature or conditions of operation of the measure .                against Commission of the European Communities
      The Commission's decision reducing its assistance so
                                                                                ( Case C-240/97 )
      that no monies spent by the Office of Public Works on
      the development at the Burren National Park were to                                       ( 97/C 271 /07)
      be treated as eligible European Regional Development
      Fund expenditure is therefore a breach of the
      provisions of Article 24 of Regulation ( EEC ) No 4253/
      88 and ought to be annulled.                                      An action against the Commission of the European
                                                                        Communities was brought before the Court of Justice on
ii ) Incorrect interpretation of Article 24                             30 June 1997 by the Kingdom of Spain, represented by
                                                                        Santiago Ortiz Vaamonde, Abogado del Estado, acting as
                                                                        Agent, with an address for service in Luxembourg at the
      Even if the Court does not accept that no significant             Spanish Embassy, 4—6 Boulevard Emmanuel Servais .
      change took place in relation to the development at
      the Burren National Park, the applicant submits in
      relation to both developments that the conditions for
      the reduction or suspension of assistance under                   The applicant claims that the Court of Justice should:
      Article 24 of Regulation ( EEC ) No 4253/88 have not
      been met since no irregularity took place and no sums
      were received unduly.                                             1 . annul Commission Decision 97/333/EC of 23 April
                                                                            1997 (') on the clearance of the accounts in respect of
in ) Force majeure                                                          the expenditure for 1993 financed by the EAGGF as
                                                                            regards the financial adjustments made in relation to
                                                                            export refunds for butter and meat and aid for the
      In the circumstances of the present case, the applicant               processing of fruit and vegetables .
      submits that it could not have sought the
      Commission's approval for any changes that took
      place since the projects as originally conceived were
      found to be in breach of Irish planning law by the                2 . order the Commission to pay the costs.
      Supreme Court of Ireland, who ordered work on the
      projects to cease until planning permission was
      obtained. Subsequently the planning permission                    Pleas in law and main arguments adduced in support:
      applications lodged were refused, in the case of the
      project in the Wicklow National Park, and withdrawn
      following that refusal, in the case of the project in the
      Burren National Park .                                            Export refunds for butter
      The applicant therefore submits that it could not have
      gone ahead with the original projects due to                      The adjustment concerns a sale of 1 550 tonnes of butter
      circumstances      outside    its control . Moreover     the      bound ultimately for Kaliningrad ( Russian Federation ).
      circumstances which caused non-performance of the                 The problem is one purely of fact. The Commission is
      projects as initially agreed were abnormal and                    withholding advance funds from Spain for lack of
      unforeseeable since the Office of Public Works had at             evidence that the butter was actually exported to a non
       all time complied with what had been perceived to be             member country, owing to its poor quality.
      the applicable law in Ireland for circa 30 years.
iv) Breach of the duty of sincere cooperation                           The Spanish authorities regarded as more that sufficient
                                                                        the evidence produced by the exporter, since it documents
                                                                        the incidents affecting the cargo before it was finally
      The duty of sincere cooperation between the Member                discharged in a non-member country. It is impossible to
       States and the Community is a well established                   assess the Commission's evidence to the contrary because
      principle of Community law. The applicant submits                 it has produced none .
      that the Commission, by reducing the assistance due
       to Ireland under the Operational Programme, has
       breached this duty.
                                                                        Export refunds for beef and veal
 (') Council Regulation ( EEC ) No 4253/88 of 19 December 1988
     laying down provisions for implementing Regulation ( EEC)
     No 2052/88 as regards coordination of the activities of the        Article 68 of the Community Customs Code ( Regulation
     different Structural Funds between themselves and with the         ( EEC ) No 2913/92 (2 )) provides for the examination or
     operations of the European Investment Bank and the other           physical checking of goods as an alternative, and not
     existing financial instruments .                                   exclusive, procedure for verifying the declarations
                                                                        accepted by the customs authorities, since at the same
                                                                        time it provides for documentary checks . Article 71 ( 1 ) of


title: Case C-450/08: Reference for a preliminary ruling from the Landgericht Tübingen (Germany) lodged on 15 October 2008 — FGK Gesellschaft für Antriebsmechanik mbH v Notar Gerhard Schwenkel

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/16

         Reference for a preliminary ruling from the Landgericht Tübingen (Germany) lodged on 15 October 2008 — FGK Gesellschaft für Antriebsmechanik mbH v Notar Gerhard Schwenkel
   (Case C-450/08)
   (2009/C 69/28)
   Language of the case: German
   Referring court
   Landgericht Tübingen
   Parties to the main proceedings

      Applicant: FGK Gesellschaft für Antriebsmechanik mbH

      Defendant: Notar Gerhard Schwenkel

      Party Involved: President of the Landgericht Tübingen
   Question referred

               1.

               Is Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (1)(as amended by Council Directive 85/303/EEC of 10 June 1985) to be interpreted as meaning that the charges of a notary employed as a civil servant for the drawing up of a notarially attested act recording a transaction covered by that directive constitute taxes for the purposes of that directive where, under the relevant national legislation, even notaries who are civil servants may be authorised to practise and are themselves owed the charges arising from that act and the State, on the basis of a general waiver, does not receive any portion of the charges for the authentication of transactions covered by the Directive?

      (1)  OJ L 249, p. 25.


title: Reference for a preliminary ruling from the Pretura Circondariale, Udine (Ufficio del Giudice per le indagini preliminari), by order of that court of 20 April 1998 in the criminal proceedings pending before it against Paolo Lirussi (Case C-175/98)

text:
C 209/26             EN                 Official Journal of the European Communities                                    4.7.98
Ð if the goods were acquired in a Member State of the                  principles contained in Article 4 of Directive 91/156/
    European Community or of the European Economic                     EEC apply and to what extent?
    Area in which they were put on sale for the first time
    without the consent of the proprietor of the trade
    mark or his representative,                                    Ð Does the activity carried on by the person under
                                                                       investigation, namely the storage of 160 kg of lead
                                                                       batteries for more than one month, without any
Ð or where goods bearing the trade mark which are                      notification to the supervisory authorities, constitute
    identical to the authentic goods bearing the same trade            temporary storage under the terms of the directive?
    mark but are imported in parallel either directly or
    indirectly from countries outside the European                 (1) OJ L 78, 26.3.1991, p. 32.
    Community or the European Economic Area are, or
    have already been, marketed within the Community or
    the European Economic Area by the proprietor of the
    trade mark or with his consent,
Ð or where goods bearing the trade mark which are                  Reference for a preliminary ruling from the         Pretura
    similar to the authentic goods bearing the same trade          Circondariale, Udine (Ufficio del Giudice per le   indagini
    mark but are imported in parallel either directly or           preliminari), by order of that court of 20 April   1998 in
    indirectly from countries outside the European                 the criminal proceedings pending before it          against
    Community or the European Economic Area are, or                                      Francesca Bizzaro
    have already been, marketed within the Community or
    the European Economic Area by the proprietor of the                                   (Case C-177/98)
    trade mark or with his consent.                                                         (98/C 209/53)
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Pretura
                                                                   Circondariale (District Magistrates Court), Udine, by
                                                                   order of that court of 20 April 1998, which was received
Reference for a preliminary ruling from the Pretura
                                                                   at the Court Registry on 11 May 1998, for a preliminary
Circondariale, Udine (Ufficio del Giudice per le indagini
                                                                   ruling in the criminal proceedings pending before it
preliminari), by order of that court of 20 April 1998 in
                                                                   against Francesca Bizzaro, on the following questions:
the criminal proceedings pending before it against Paolo
                            Lirussi
                      (Case C-175/98)                              Ð What is the difference (if any) between temporary
                                                                       storage and storage of waste pending further
                        (98/C 209/52)                                  operations (or storage of materials) within the
                                                                       producer's premises, and what are the criteria for
                                                                       determining in a given case which of those forms of
Reference has been made to the Court of Justice of the                 storage is involved?
European Communities by an order of the Pretura
Circondariale (District Magistrates Court), Udine, by
order of that court of 20 April 1998, which was received           Ð Is temporary storage excluded from waste
at the Court Registry on 11 May 1998, for a preliminary                management' in the sense contemplated in Article 1(d)
ruling in the criminal proceedings pending before it                   of Directive 91/156/EEC (1) and from all the
against Paolo Lirussi, on the following questions:                     obligations in relation thereto, including the
                                                                       notification of temporary storage to the supervisory
                                                                       authorities?
Ð What is the difference (if any) between temporary
    storage and storage of waste pending further
    operations (or storage of materials) within the                Ð Is temporary storage subject to supervision and, if so,
    producer's premises, and what are the criteria for                 to what type of measures; in that regard do the
    determining in a given case which of those forms of                principles contained in Article 4 of Directive 91/156/
    storage is involved?                                               EEC apply and to what extent?
Ð Is temporary storage excluded from waste                         Ð Does the activity carried on by the person under
    management' in the sense contemplated in Article 1(d)             investigation, namely the storage of 87.5 kg of sludge
    of Directive 91/156/EEC (1) and from all the                       containing halogenated solvents for more than two
    obligations in relation thereto, including the                     months, constitute temporary storage under the terms
    notification of temporary storage to the supervisory               of the directive?
    authorities?
                                                                   (1) OJ L 78, 26.3.1991, p. 32.
Ð Is temporary storage subject to supervision and, if so,
    to what type of measures; in that regard do the


title: Case T-304/08: Judgment of the General Court of 10 July 2012 — Smurfit Kappa Group v Commission (State aid — Corrugated case materials — Aid for the construction of a paper mill — Guidelines on national regional aid — Decision declaring the aid compatible with the common market — Admissibility — Validity of the authority conferred by a legal person on its lawyers — Adoption of a decision upon conclusion of the preliminary examination phase — Standing to bring proceedings — Procedural rights of interested parties — Serious difficulties justifying the initiation of the formal investigation procedure — Exercise by the Commission of its discretion — Article 87(3)(a) EC — Article 88(2) and (3) EC — Article 4 of Regulation (EC) No 659/1999 — Article 44(5) and (6) of the Rules of Procedure)

text:
               18.8.2012

               EN

               Official Journal of the European Union

               C 250/12

         Judgment of the General Court of 10 July 2012 — Smurfit Kappa Group v Commission
   (Case T-304/08) (1)

   (State aid - Corrugated case materials - Aid for the construction of a paper mill - Guidelines on national regional aid - Decision declaring the aid compatible with the common market - Admissibility - Validity of the authority conferred by a legal person on its lawyers - Adoption of a decision upon conclusion of the preliminary examination phase - Standing to bring proceedings - Procedural rights of interested parties - Serious difficulties justifying the initiation of the formal investigation procedure - Exercise by the Commission of its discretion - Article 87(3)(a) EC - Article 88(2) and (3) EC - Article 4 of Regulation (EC) No 659/1999 - Article 44(5) and (6) of the Rules of Procedure)
   2012/C 250/20
   Language of the case: English

      Parties

      Applicant: Smurfit Kappa Group plc (Dublin, Ireland) (represented by: T. Ottervanger and E. Henny, lawyers)

      Defendant: European Commission (represented by: B. Martenczuk and C. Urraca Caviedes, Agents)

      Intervener in support of the defendant: Propapier PM 2 GmbH, formerly Propapier PM2 GmbH & Co. KG (Eisenhüttenstadt, Germany) (represented by: H.-J. Niemeyer and C. Herrmann, lawyers)

      Re:

   Action for annulment of Commission Decision C(2008) 1107 of 2 April 2008 declaring compatible with the common market the national regional aid which the German authorities intend to grant to Propapier PM2 for the construction of a paper mill in Eisenhüttenstadt (region of Brandenburg-Nordost) (State aid N 582/2007 — Germany).

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision C(2008) 1107 of 2 April 2008 declaring compatible with the common market the national regional aid which the German authorities intend to grant to Propapier PM2 for the construction of a paper mill in Eisenhüttenstadt (region of Brandenburg-Nordost) (State aid N 582/2007 — Germany);

               2.

               Orders the European Commission and Propapier PM 2 GmbH to pay the costs.

      (1)  OJ C 272, 25.10.2008.


title: Case C-237/11: Action brought on 19 May 2011 — French Republic v European Parliament

text:
               30.7.2011

               EN

               Official Journal of the European Union

               C 226/12

         Action brought on 19 May 2011 — French Republic v European Parliament
   (Case C-237/11)
   2011/C 226/24
   Language of the case: French

      Parties

      Applicant: French Republic (represented by: E. Belliard, G. de Bergues and A. Adam, Agents)

      Defendant: European Parliament

      Form of order sought

               —

               Annul the vote of the European Parliament of 9 March 2011 concerning the calendar of session periods of the Parliament for 2012;

               —

               Order the European Parliament to pay the costs.

      Pleas in law and main arguments

   The applicant relies on a single plea in law in support of its action alleging, first, infringement of Protocol No 6 on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union, annexed to the TFEU, and of Protocol No 3 on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union, annexed to the EAEC Treaty and, second, failure to comply with the judgment of the Court in Case C-345/95 France v Parliament [1997] ECR I-5235.
   According to the French Government, by laying down that two of the twelve periods of monthly plenary sessions which must take place in Strasbourg every year will be shortened from 4 to 2 days and will take place, in 2012, during the same week of October, the European Parliament has sought to circumvent the rule according to which the twelve periods of monthly plenary sessions, including the budget session, must take place in Strasbourg. The contested vote amounts, in practice, to the abolition of one of the twelve periods of monthly plenary sessions which must take place in Strasbourg every year. Its only objective is thus to reduce the length of time members of the European Parliament spend at the seat of the European Parliament, which is not justified by any requirement relating to the internal organisation of the Parliament’s work.


title: Case C-92/06 P: Order of the Court (Fourth Chamber) of 13 July 2006 — Soffass SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Sodipan SCA (Appeal — Community trade mark — Figurative mark NICKY — Opposition by the proprietor of the national figurative marks NOKY and noky — Purely factual assessment — Appeal manifestly inadmissible)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/21

         Order of the Court (Fourth Chamber) of 13 July 2006 — Soffass SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Sodipan SCA
   (Case C-92/06 P) (1)

   (Appeal - Community trade mark - Figurative mark ‘NICKY’ - Opposition by the proprietor of the national figurative marks ‘NOKY’ and ‘noky’ - Purely factual assessment - Appeal manifestly inadmissible)
   (2006/C 294/36)
   Language of the case: Italian
   Parties

      Appellant: Soffass SpA (represented by: V. Biliardo, C. Bacchini and M. Mazzitelli, lawyers)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), (represented by: M. Capostagno, Agent), Sodipan SCA (represented by: N. Bœspflug, lawyer)
   Re:
   Appeal against the judgment of the Court of First Instance (First Chamber) of 23 November 2005 in Case T-396/04 Soffass v OHMI whereby the Court dismissed as unfounded an action by the applicant for the figurative mark ‘NICKY’ for goods in Class 15 for annulment of Decision R 699/2003-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 16 July 2004 annulling the decision of the Opposition Division dismissing the opposition brought by the proprietor of the national figurative marks ‘NOKY’ and ‘noky’ for goods in Class 16.
   Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Soffass SpA is ordered to pay the costs.

      (1)  OJ C 121, 20.05.2006


title: Case T-134/05: Action brought on 26 March 2005 by the Kingdom of Belgium against the Commission of the European Communities

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/33

         Action brought on 26 March 2005 by the Kingdom of Belgium against the Commission of the European Communities
   (Case T-134/05)
   (2005/C 132/59)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 March 2005 by the Kingdom of Belgium, represented by Jean-Pierre Buyle and Christophe Steyaert, lawyers.
   The applicant claims that the Court should:

               —

               annul the decision of the Commission of 19 January 2005, insofar as it states that ‘former ESF claims’ are not time-barred and, where appropriate, insofar as it states that such claims give rise to default interest calculated on the basis of Article 86 of Regulation No 2342/2202/EC;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   From 1987 to 1992 the Commission asked the applicant to repay certain sums paid out of the European Social Fund (ESF) and transferred by the Commission directly to various Belgian bodies acting as promoters but not used by them in accordance with the rules relating to the ESF.
   In 2004 the Commission set off certain sums payable by the applicant by virtue of its former claims against claims the applicant had against the Commission. Following that setting off, the applicant sent several letters to the Commission to which the Commission replied by the contested decision, stating that the former claims were not time-barred, contrary to the contention of the applicant.
   In support of its application the applicant submits that the claims at issue are time-barred pursuant to Article 3.1 of Regulation No 2988/95/EC or, in the alternative, pursuant to the provisions of Belgian law, applicable here pursuant to Article 2.4 of Regulation No 2988/95/EC.
   The applicant also disputes the charging by the Commission of default interest. According to the applicant there are specific rules on the subject, namely in Regulation No 1865/90/EEC and Regulation No 448/2001/EC, derogating from Article 86 of 2342/2002/EC which is relied on by the Commission to justify the imposition of default interest. The applicant submits that those specific rules do not provide for the imposition of default interest in respect of ESF action decided on before 6 July 1990 and, therefore, the Commission cannot claim default interest on the claims in question.


title: Case T-60/11: Action brought on 26 January 2011 — Kraft Foods Global Brands v OHIM — Fenaco (SUISSE PREMIUM)

text:
               2.4.2011

               EN

               Official Journal of the European Union

               C 103/24

         Action brought on 26 January 2011 — Kraft Foods Global Brands v OHIM — Fenaco (SUISSE PREMIUM)
   (Case T-60/11)
   2011/C 103/42
   Language of the case: Spanish

      Parties

      Applicant: Kraft Foods Global Brands LLC (Northfield, USA) (represented by M. de Justo Bailey, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Fenaco Genossenschaft (Berne, Switzerland)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 11 November 2010, in Case R 522/2010-1, and

               —

               Order the defendant and the co-defendant to bear the cost of the procedure.

      Pleas in law and main arguments

      Applicant for the Community trade mark: Fenaco Genossenschaft.

      Community trade mark applied for: Figurative mark ‘SUISSE PREMIUM’ for goods and services of Classes 30, 31 and 42.

      Proprietor of the mark or sign cited in the opposition proceedings: the Applicant.

      Mark or sign cited in opposition: Figurative mark ‘PREMIUM’ for goods of Class 30.

      Decision of the Opposition Division: Opposition dismissed.

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

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), as there is a likelihood of confusion between the marks at issue.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case T-196/16: Action brought on 29 April 2016 — Banca Tercas v Commission

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/32

         Action brought on 29 April 2016 — Banca Tercas v Commission
   (Case T-196/16)
   (2016/C 222/40)
   Language of the case: Italian

      Parties

      Applicant: Tercas-Cassa di Risparmio della Provincia di Teramo S.p.A (Banca Tercas S.p.A) (Teramo, Italy) (represented by: A. Santa Maria, M. Crisostomo, E. Gambaro and F. Mazzocchi, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul European Commission Decision C(2015) 9526 final of 23 December 2015, notified to the applicant on 22 February 2016, on State aid SA.39451 (2015/C) (ex 2015/NN) implemented by Italy for Banca Tercas (Cassa di Risparmio della Provincia di Teramo S.p.A);

               —

               in the alternative, for the reasons set out in the seventh plea in law, annul Articles 2, 3 and 4 of the decision referred to above;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The decision contested in the present action is the same as the decision contested in Case T-98/16, Italy v Commission.
   In support of its action, the applicant relies on seven pleas in law.

               1.

               By the first plea in law, Banca Tercas (‘the applicant’ or ‘Tercas’) complains that the Commission has infringed and misapplied Article 107(1) TFEU and Article 296 TFEU by failing to provide any and/or adequate reasons as regards whether the necessary requirements relating to ‘State resources’ and ‘imputability to the State’ have been met, in so far as the Commission gives priority to the analysis of the State resources criterion over the analysis of the imputability criterion and fails to verify independently whether the requirement relating to State resources, one of the criteria for establishing the existence of State aid for the purpose of Article 107(1) TFEU, has been met.

               2.

               By the second plea in law, the applicant alleges that the Commission has infringed and misapplied Article 107(1) TFEU, as it has found, incorrectly, that there has been use of State resources by the Italian Interbank Deposit Protection Fund (‘the Fund’ or ‘the IDPF’). According to the applicant, this constitutes a manifest error of assessment by the Commission, as the IDPF’s resources cannot be regarded, in the light of the criteria established by the case-law of the Courts of the European Union, as being under public control or available to the Italian State. The Italian legislature has left it entirely to the guarantee schemes’ discretion to determine both the aim and scope of any measures used as alternatives to reimbursing depositors and the concrete ways in which those measures are to be implemented. The alternative measures referred to in Article 29 of the Fund’s Articles of Association may be activated by the Fund if it is foreseeable that the costs thereof will be lower than those arising from intervention in the event of liquidation; they would chiefly serve the associated banks’ private interests and cannot be attributed to the exercise of a public mandate.

               3.

               By the third plea in law, the applicant alleges infringement and misapplication of Article 107(1) TFEU in so far as the Commission considers that the measures in favour of Tercas are imputable to the Italian State. It maintains, in that regard, that the IDPF has made a voluntary commitment to such intervention and the argument put forward by the Commission, which describes the Bank of Italy as a body managing (purportedly) public resources, is incorrect and does not convey the true sense of the functions which are ascribed to that central bank under the Italian legal system. The activities of the Bank of Italy are aimed at verifying compliance with the principle of sound and prudent management, on the basis of a simple examination of lawfulness and regularity, without prejudice to the free individual choices of the persons supervised by that Bank. In addition, the specific evidence of intervention by the public authorities referred to by the Commission in connection with the intervention in favour of Tercas is manifestly incapable of supporting the conclusion reached by the Commission.

               4.

               By the fourth plea in law, the applicant claims infringement of Article 107(1) TFEU in connection with the misapplication of the private operator in a market economy test. It argues in that regard that the Commission did not verify whether the IDPF’s intervention satisfied the economic rationality test, in the light of the factors meticulously considered by the IDPF in its assessment of the future effects of potential intervention scenarios. In particular, it claims that the Commission did not verify whether, in similar circumstances, a private operator of a size comparable to the IDPF would have carried out economic transactions on a scale similar to those which have been contested by that institution. Lastly, the decision to exclude the costs of reimbursing depositors from the application of the private investor test — as an expression of the obligations which the State assumes as a public authority — is not justified in the present case and is in conflict with the most recent case-law of the Courts of the European Union.

               5.

               By the fifth plea in law, the applicant sets out the reasons why the Commission made a manifest error of assessment in deeming the measures in question incompatible with the internal market. In particular, the Commission erred in finding that the devaluation of the subordinated debt, provided for ratione temporis only in its 2013 banking communication, is an essential requirement for any conclusion that the measures are compatible with the internal market. In particular, it did not take account of the legal impossibility of imposing burden-sharing on the part of the persons liable to pay that subordinated debt. In addition, the Commission failed to take into consideration the fact that the costs of intervention had already been substantially reduced by significant burden-sharing measures. The compatibility of the measures is also apparent from the plan for returning Tercas to a state of viability and from the presence of measures to limit the alleged distortion of competition arising following the IDPF’s intervention. Therefore, the applicant also argues that there has been a manifest failure to make inquiries.

               6.

               By the sixth plea in law, the applicant alleges that the Commission made a factual error and an incorrect legal classification in deeming the guarantee of EUR 30 000 000 to have been called on and in regarding such a measure as the equivalent of a non-repayable grant to Tercas and, therefore, as equivalent to State aid.

               7.

               Lastly and in the alternative, by the seventh plea in law Tercas complains of infringement of Article 16(1) of Regulation (EU) No 2015/1589, on the ground that the Commission has ordered the Italian State to recover the aid notwithstanding the fact that this is contrary to the general EU principles of legal certainty, protection of legitimate expectations, and proportionality.


title: Case C-458/16 P: Appeal brought on 12 August 2016 by Trenzas y Cables de Acero PSC, S.L. against the judgment of the General Court (Sixth Chamber) delivered on 2 June 2016 in Joined Cases T-426/10 to T-429/16 and T-438/12 to T-441/12, Moreda-Riviere Trefilerías and Others v Commission

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/16

         Appeal brought on 12 August 2016 by Trenzas y Cables de Acero PSC, S.L. against the judgment of the General Court (Sixth Chamber) delivered on 2 June 2016 in Joined Cases T-426/10 to T-429/16 and T-438/12 to T-441/12, Moreda-Riviere Trefilerías and Others v Commission
   (Case C-458/16 P)
   (2016/C 392/20)
   Language of the case: Spanish

      Parties

      Appellant: Trenzas y Cables de Acero PSC, S.L. (represented by: F. González Díaz, A. Tresandi Blanco and V. Romero Algarra, lawyers)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of 2 June 2016 in Cases T-438/12 to T-441/12 and, in particular, in Case T-441/12, Trenzas y Cables de Acero PSC, S.L. v Commission;

               —

               order the Commission to pay the costs incurred in both the present proceedings and the proceedings before the General Court.

      Grounds of appeal and main arguments

               1.

               The General Court erred in law in declaring inadmissible the plea in law relating to the infringement of the appellant’s rights of defence.

               2.

               The General Court erred in law by applying an incorrect legal standard when evaluating the second request for inability to pay and, consequently, the admissibility of the action.

               3.

               The General Court erred in law in evaluating the evidence or clearly distorting the evidence, failing to carry out a full review exercising its powers of unlimited jurisdiction, infringing the right to effective judicial protection and failing to state reasons.


title: Case C-242/14: Request for a preliminary ruling from the Landgericht Mannheim (Germany) lodged on 19 May 2014  — Saatgut-Treuhandverwaltungs GmbH v Firma Gerhard und Jürgen Vogel GbR, Jürgen Vogel, Gerhard Vogel

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/9

         Request for a preliminary ruling from the Landgericht Mannheim (Germany) lodged on 19 May 2014 — Saatgut-Treuhandverwaltungs GmbH v Firma Gerhard und Jürgen Vogel GbR, Jürgen Vogel, Gerhard Vogel
   (Case C-242/14)
   2014/C 303/12
   Language of the case: German

      Referring court

   Landgericht Mannheim

      Parties to the main proceedings

      Applicant: Saatgut-Treuhandverwaltungs GmbH

      Defendants: Firma Gerhard und Jürgen Vogel GbR, Jürgen Vogel, Gerhard Vogel

      Questions referred

               —

               Is a farmer who has planted propagating material obtained from a protected plant variety without having concluded a contract for so doing with the plant variety right holder required to pay reasonable compensation, as provided for in Article 94(1) of Council Regulation (EC) No 2100/94 (1) of 27 July 1994 on Community plant variety rights, and — if he has acted intentionally or negligently — to compensate the holder for any further damage resulting from the infringement of the plant variety right in accordance with Article 94(2) of that regulation, where he has not yet fulfilled his obligation under Article 14(3), fourth indent, of that regulation, in conjunction with Articles 5 and 6 of Commission Regulation (EC) No 1768/95 (2) of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation (EC) No 2100/94, to pay an equitable remuneration (planting fee) at the time when he actually made use of the product of the harvest for propagating purposes in the field?

               —

               If the first question is to be answered to the effect that the farmer can still fulfil his obligation to pay an equitable planting fee even after he has actually made use of the product of the harvest for propagating purposes in the field, are the aforementioned provisions to be interpreted as fixing a period within which a farmer who has planted propagating material obtained from a protected plant variety must fulfil his obligation to pay an equitable planting fee in order for the planting to be capable of being regarded as ‘authorised’ for the purposes of Article 94(1) of Regulation (EC) No 2100/94 in conjunction with Article 14 of that regulation?

      (1)  OJ 1994 L 227, p. 1.

      (2)  OJ 1995 L 173, p. 14.


title: Case T-65/08: Action brought on 13 February 2008 — Spain v Commission

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/41

         Action brought on 13 February 2008 — Spain v Commission
   (Case T-65/08)
   (2008/C 92/82)
   Language of the case: Spanish
   Parties

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

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Decision of 5 December 2007 in relation to a procedure pursuant to Article 21 of Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (Case No Comp/M.4685 — Enel/Acciona/Endesa), and

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The present action is brought against Commission Decision C(2007) 5913 Final of 5 December 2007 in relation to a procedure pursuant to Article 21 of Regulation (EC) No 139/2004 (1) (Case No COMP/M.4685 Enel/Acciona/Endesa). In the contested decision the Commission found that the applicant had infringed Article 21 of Regulation No 139/2004 in subjecting the acquisition of joint control over Endesa, by Enel and Acciona, to a series of conditions, given that those conditions are incompatible with Articles 28, 43 and 56 EC, and thereby unduly interfere with the exclusive competence of the Commission to rule on a concentration at the Community level. Furthermore, the defendant forced the applicant to withdraw those conditions found to be incompatible with Community law.
   In support of its claims, the applicant alleges, first, that the Commission lacks the competence to adopt the contested decision on the basis of the procedure pursuant to Article 21 of Regulation No 139/2004. According to the applicant, where the Commission takes the view that a Member State has infringed Article 21 of Regulation No 139/2004, it should initiate infringement proceedings against that Member State on the basis of Article 226 EC.
   Second, the applicant claims that the contested decision is vitiated by a lack of reasoning in that the Commission did not examine the grounds of public security on which the Spanish Government relied, as laid down in Article 21(4) of Regulation No 139/2004, to adopt measures in relation to the public bid by Enel and Acciona for the purchase of Endesa.
   Finally, the applicant alleges the Commission infringed Article 21(4) of Regulation No 139/2004 given that the Spanish authorities were not obliged to communicate the conditions imposed on the public bid for the purchase of Endesa, by Enel and Acciona, to the Commission, since those conditions sought to protect a legitimate interest, namely public security.

      (1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).


title: Case T-640/13: Judgment of the General Court of 28 January 2016 — Sto v OHIM Fixit Trockenmörtel Holding (CRETEO) (Community trade mark — Opposition proceedings — Application for Community word mark CRETEO — Earlier national word marks StoCretec and STOCRETE — Relative ground for refusal — Distinctive character acquired through use — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/32

         Judgment of the General Court of 28 January 2016 — Sto v OHIM Fixit Trockenmörtel Holding (CRETEO)
   (Case T-640/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark CRETEO - Earlier national word marks StoCretec and STOCRETE - Relative ground for refusal - Distinctive character acquired through use - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 098/41)
   Language of the case: German

      Parties

      Applicant: Sto SE & Co. KGaA, formerly Sto AG (Stühlingen, Germany (represented by: K. Kern and J. Sklepek, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Fixit Trockenmörtel Holding AG (Baar, Switzerland) (represented by: K. Lochner and C. Thomas, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 25 September 2013 (Case R 905/2012-4), relating to opposition proceedings between Sto AG and Fixit Trockenmörtel Holding AG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Sto SE & Co. KGaA to pay the costs.

      (1)  OJ C 39, 8.2.2014.


title: Case T-252/99: Action brought on 22 October 1999 by Total Nederland B.V. and Fina Nederland B.V. against the Commission of the European Communities

text:
22.1.2000              EN                     Official Journal of the European Communities                                    C 20/27
Pleas in law and main arguments                                                 Removal from the register of Case T-524/93 (1)
This case corresponds to Case T-210/99. The pleas in law and                                      (2000/C 20/55)
main arguments are the same as those in Case T-250/99.
                                                                                (Language of the case: English)
( 1) OJ L 280 of 30.10.1999, p. 87.
                                                                         By order of 25 October 1999, the President of the Fourth
                                                                         Chamber, Extended Composition, of the Court of First Instance
                                                                         of the European Communities has ordered the removal from
                                                                         the register of Case T-524/93: Patrick Wall v Council of the
                                                                         European Union and Commission of the European Communi-
                                                                         ties.
Action brought on 22 October 1999 by Total Nederland                     (1) OJ C 319 of 26.11.1993.
B.V. and Fina Nederland B.V. against the Commission of
                  the European Communities
                         (Case T-252/99)
                          (2000/C 20/54)                                 Removal from the register of Case T-195/94 and
                                                                                T-202/94 (1)
                    (Language of the case: Dutch)                                                 (2000/C 20/56)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                  (Language of the case: German)
European Communities on 22 October 1999 by Total Neder-
land B.V. and Fina Nederland B.V., respectively established in           By order of 29 September 1999, the President of the Fourth
Rotterdam and The Hague (Netherlands), represented by                    Chamber, Extended Composition, of the Court of First Instance
E.H. Pijnacker Hordijk and R. Wesseling, of the Hague Bar,               of the European Communities has ordered the removal from
with an address for service in Luxembourg at the Chambers of             the register of Joined Cases T-195/94 and T-202/94: Friedhelm
M. Maître, 11 Rue Goethe.                                                Quiller and Johann Heusmann v Council of the European
                                                                         Union and Commission of the European Communities.
The applicants claim that the Court should:
                                                                         (1) OJ C 188 of 9.7.1994 and C 218 of 6.8.1994.
(a) order the Commission of the European Communities to
     give the applicant’s advisers access to its file relating to
     its decision of 20 July 1999 (C(1999) 2539 final) (1)
     concerning State aid granted by the Netherlands to 633
     service stations in the region bordering Germany, and
     order the adoption of all such further measures as may be
     necessary;                                                                 Removal from the register of Case T-10/96 (1)
(b) annul Articles 2 and 3 of the Commission’s decision of
                                                                                (2000/C 20/57)
     20 July 1999 (C(1999) 2539 final);
(c) order the Commission to pay the costs.                                                  (Language of the case: English)
                                                                         By order of 10 November 1999, the President of the Fourth
Pleas in law and main arguments                                          Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the register of
This case is linked to Case T-210/99. The pleas in law and               Case T-10/96: Benjamin Laurence Lay v Council of the
main arguments are the same as those in Case T-250/99.                   European Union and Commission of the European Communi-
                                                                         ties.
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                         (1) OJ C 133 of 4.5.1996.