title: Case C-5/05: Reference for a preliminary ruling by the Hoge Raad der Nederlanden of 7 January 2005 in the case of Staatssecretaris van Financiën v B.F. Joustra

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/6

         Reference for a preliminary ruling by the Hoge Raad der Nederlanden of 7 January 2005 in the case of Staatssecretaris van Financiën v B.F. Joustra
   (Case C-5/05)
   (2005/C 69/13)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by judgment of 7 January 2005 of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), which was received at the Court Registry on 10 January 2005, for a preliminary ruling in the case of Staatssecretaris van Financiën v B.F. Joustra on the following questions:

               1.

               Must Article 8 of Council Directive 92/12/EEC (1) be construed as meaning that excise duty may not be levied other than in the Member State of acquisition in the case where an individual purchases goods subject to excise duty personally and for his own use in one Member State and has them transported by a transport undertaking to another Member State?

               2.

               Must Article 8 of Council Directive 92/12/EEC be construed as meaning that excise duty may not be levied other than in the Member State of acquisition in the case where, as in the present, individuals arrange for goods subject to excise duty to be purchased in one Member State by another individual who is not operating commercially or with a view to making a profit and who arranges for the goods to be transported on behalf of the purchasers by a transport undertaking to another Member State?

               3.

               If the answer to (one of) those questions should be in the negative: must Articles 7 and 9 of Council Directive 92/12/EEC be construed as meaning that, if an individual arranges for goods subject to excise duty which have been released for consumption in one Member State to be transported by a third party operating on his behalf to another Member State, where they are intended for his own personal requirements and for the personal requirements of others whom that individual also represents, that individual holds in that other Member State those goods subject to excise duty, that is to say, both those intended for his own use and those intended for the use of those other individuals, for commercial purposes within the terms of Articles 7 and 9 of the Directive, even if he is not acting commercially or with a view to making a profit?

               4.

               If the answer to Question 3 should be in the negative, does it follow from any other provision of Directive 92/12 that the individual referred to in Question 3 owes excise duty in the other Member State?

      (1)  Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).


title: Case C-64/02 P: Appeal brought on 27 February 2002 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 11 December 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-138/00 between Erpo Möbelwerke GmbH and the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
4.5.2002               EN                     Official Journal of the European Communities                                        C 109/31
Action brought on 26 February 2002 by the Commission                     Appeal brought on 27 February 2002 by the Office for
of the European Communities against the United                           Harmonisation in the Internal Market (Trade Marks and
      Kingdom of Great Britain and Northern Ireland                      Designs) against the judgment delivered on 11 December
                                                                         2001 by the Fourth Chamber of the Court of First Instance
                                                                         of the European Communities in Case T-138/00 between
                           (Case C-63/02)                                Erpo Möbelwerke GmbH and the Office for Harmonis-
                                                                           ation in the Internal Market (Trade Marks and Designs)
                          (2002/C 109/53)
                                                                                (Case C-64/02 P)
An action against the United Kingdom of Great Britain and                                         (2002/C 109/54)
Northern Ireland was brought before the Court of Justice of
the European Communities on 26 February 2002 by the
Commission of the European Communities, represented by
Michael Shotter, acting as agent, with an address for service in
Luxembourg.                                                              An appeal against the judgment delivered on 11 December
                                                                         2001 by the Fourth Chamber of the Court of First Instance of
                                                                         the European Communities in Case T-138/00 between Erpo
                                                                         Möbelwerke GmbH and the Office for Harmonisation in the
The Applicant claims that the Court should:
                                                                         Internal Market (Trade Marks and Designs) (1) was brought
                                                                         before the Court of Justice of the European Communities on
—     declare that by failing to adopt for Northern Ireland              27 February 2002 by the Office for Harmonisation in the
      and Wales all the laws, regulations and administrative             Internal Market (Trade Marks and Designs), represented by
      provisions necessary to comply with Council Directive              Alexander von Mühlendahl, Vice-President of the Office, and
      98/83/EC of 3 November 1998 on the quality of water                Gregor Schneider, member of the Legal Services and Court
      intended for human consumption (1) or, in any event, by            Proceedings Unit of the Legal Department.
      failing to notify such provisions to the Commission, the
      United Kingdom of Great Britain and Northern Ireland
      has failed to fulfil its obligations under Article 17(1) and
      17(2) of this directive;                                           The appellant claims that the Court should:
—     order the United Kingdom to pay the costs.                         —     set aside the contested judgment;
                                                                         —     dismiss the action against the decision of the Third Board
                                                                               of Appeal of 23 March 2000 in Case R 392/1999-3, or
Pleas in law and main arguments                                                alternatively refer the proceedings back to the Court of
                                                                               First Instance;
Article 249 EC, under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by            —     order the other party to the proceedings to pay the costs
implication an obligation on the Member States to observe the                  both of the proceedings at first instance and of the appeal
period for compliance laid down in the directive. That period                  proceedings.
expired on 25 December 2000 without the United Kingdom
having informed the Commission of the provisions adopted to
comply with the directive referred to in the conclusions of the
Commission as regards Wales and Northern Ireland.
                                                                         Pleas in law and main arguments
Since the Commission is in possession of no other information
enabling it to conclude that the United Kingdom has adopted
the necessary provisions, it is compelled to assume that the             Infringement of Article 7(1)(b) of Council Regulation
UK has failed to fulfil its obligations under the directive.             No 40/94 (2): the Court of First Instance applied a new
                                                                         examination criterion in the contested judgment. The Office
                                                                         considers that to limit the possibility of refusing a trade mark
                                                                         application to cases in which general use amongst the class of
(1) OJ L 330, 05.12.1998, p. 32.                                         persons concerned is proved constitutes a legally erroneous
                                                                         interpretation of Article 7(1)(b). If it were possible to refuse an
                                                                         application for a trade mark only if that mark, or at all events
                                                                         signs portrayed in the same way, were shown to be already
 ---pagebreak--- C 109/32               EN                    Official Journal of the European Communities                                         4.5.2002
customary in business circles, Article 7(1)(b) would be robbed          Pleas in law and main arguments:
of its central meaning for the purposes of examination of trade
mark applications and, moreover, the examination would
overlap with Article 7(1)(d).                                           —     Errors of law in the determination of, and the regard had
                                                                              to, the duration of the infringement for which the fine
                                                                              was imposed: the Court of First Instance erroneously
(1) Not yet published in the European Court Reports.                          rejected the contention that the infringement was only
(2) Council Regulation (EC) No 40/94 on the Community trade mark
                                                                              sporadic, although it is undisputed that, from as early as
    (OJ L 11 of 14.1.1994, p. 1).
                                                                              February 1994 onwards, the appellant has repeatedly
                                                                              independently fixed its prices for stainless steel flat
                                                                              products. The defendant and the Court of First Instance
                                                                              would have been entitled to assume that prices continued
                                                                              to be influenced by the concerted practices within the
                                                                              meaning of Article 65 of the ECSC Treaty after the next
                                                                              time the prices were independently fixed, in March 1994,
Appeal brought on 28 February 2002 by ThyssenKrupp                            only if there had been actual evidence of such continued
Stainless GmbH (formerly doing business as KruppThys-                         influence or of continued practices.
sen Stainless GmbH) against the judgment delivered on
13 December 2001 by the First Chamber of the Court of
                                                                              Even if it could not be assumed that the infringement was
First Instance of the European Communities in Joined
                                                                              only sporadic, the Court of First Instance failed to
Cases T-45/98 and T-47/98 between KruppThyssen Stain-
                                                                              recognise that the protracted length of the administrative
less GmbH and Acciai speciali Terni SpA and the Com-
                                                                              procedure worked — unfairly — to the disadvantage of
            mission of the European Communities
                                                                              the appellant, since the Commission did not make clear
                                                                              that it was acting on the presumption of an ongoing
                         (Case C-65/02 P)                                     infringement.
                         (2002/C 109/55)
                                                                        —     Error of law in so far as the initial fixed sum was taken
                                                                              into account more than once in the calculation of the
                                                                              fine: the Court of First Instance wrongly failed to address
An appeal against the judgment delivered on 13 December                       the applicant’s contention that, when applying the prin-
2001 by the First Chamber of the Court of First Instance of                   ciple of fixed-sum fines in respect of the applicant’s legal
the European Communities in Joined Cases T-45/98 and                          relationships, the Commission was entitled to impose
T-47/98 between KruppThyssen Stainless GmbH and Acciai                        only a single fine. Instead, the Commission recognised
speciali Terni SpA and the Commission of the European                         the corporate structure of the group in the non-operative
Communities (1) was brought before the Court of Justice of the                part of its decision, but failed to take it into account in
European Communities on 28 February 2002 by Thyssen-                          the calculation of the fine imposed of the applicant,
Krupp Stainless GmbH, represented by Dr Martin Klusmann,                      thereby breaching the principle of equal treatment.
Rechtsanwalt, of Freshfields Bruckhaus Deringer, Düsseldorf.
                                                                        —     Error of law in the appraisal of the applicant’s co-
The appellant claims that the Court should:                                   operation in the investigation: finally, the Court of First
                                                                              Instance erroneously held that the Commission was
(1) partially set aside the judgment of the Court of First                    entitled to grant those undertakings involved in the
      Instance of the European Communities, in so far as it                   procedure which co-operated in the investigation to
      dismisses the action brought against the Commission                     exactly the same extent as the applicant, but which
      Decision 98/247/ECSC of 21 January 1998;                                additionally admitted that, in legal terms, the facts notified
                                                                              to the applicant constituted an infringement of Article 65
(2) correct, in so far as it concerns the appellant, the finding              ECSC, a specific additional 30 % reduction in the fine in
      in Article 1 of Decision 98/247/ECSC regarding the                      respect of that admission. In addition to the principle of
      duration of the infringement;                                           protection of sources which emerges from the Com-
                                                                              mission’s notice (2), it is an axiomatic principle of the rule
(3) reduce the fine imposed on the appellant in Article 2 of                  of law that an admission of illegality cannot and must
      Decision 98/247/ECSC appropriately,                                     not be rewarded.
or, alternatively in respect of claims (1) and (2),
      refer the case back to the Court of First Instance for a          (1) Not yet published in the European Court Reports.
      new judgment which complies with the Court’s interpret-           (2) OJ 1996 C 207, p. 4.
      ation of the law;
(4) order the Commission to pay the full costs of the
      proceedings.


title: Case C-287/14: Judgment of the Court (Sixth Chamber) of 9 June 2016 (request for a preliminary ruling from the Gyulai törvényszék — Hungary) — Eurospeed Ltd v Szegedi törvényszék (Reference for a preliminary ruling — Road transport — Regulation (EC) No 561/2006 — Driver’s liability for infringements of the obligation to use a tachograph)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/5

         Judgment of the Court (Sixth Chamber) of 9 June 2016 (request for a preliminary ruling from the Gyulai törvényszék — Hungary) — Eurospeed Ltd v Szegedi törvényszék
   (Case C-287/14) (1)

   ((Reference for a preliminary ruling - Road transport - Regulation (EC) No 561/2006 - Driver’s liability for infringements of the obligation to use a tachograph))
   (2016/C 296/08)
   Language of the case: Hungarian

      Referring court

   Gyulai törvényszék

      Parties to the main proceedings

      Applicant: Eurospeed Ltd

      Defendant: Szegedi törvényszék

      Operative part of the judgment

   Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 must be interpreted as not precluding national legislation which, instead of or in addition to the transport undertaking employing the driver, holds the driver liable for infringements of that regulation which he has himself committed.

      (1)  OJ C 303, 8.9.2014.


title: Case T-593/15: Judgment of the General Court of 28 September 2016 — The Art Company B & S v EUIPO — G-Star Raw (THE ART OF RAW) (EU trade mark — Opposition proceedings — Application for EU word mark THE ART OF RAW — Earlier national and EU figurative marks art and earlier EU figurative mark The Art Company — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/44

         Judgment of the General Court of 28 September 2016 — The Art Company B & S v EUIPO — G-Star Raw (THE ART OF RAW)
   (Case T-593/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU word mark THE ART OF RAW - Earlier national and EU figurative marks art and earlier EU figurative mark The Art Company - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 419/58)
   Language of the case: English

      Parties

      Applicant: The Art Company B & S, SA (Quel, Spain) (represented by: J. Villamor Muguerza, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas, acting as Agent)

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

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 9 July 2015 (Case R 1980/2014-1), relating to opposition proceedings between The Art Company B & S and G-Star Raw.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders The Art Company B & S, SA to pay the costs.

      (1)  OJ C 414, 14.12.2015.


title: Case T-172/07: Action brought on 11 May 2007 — Atlantic Dawn and Others v Commission

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/29

         Action brought on 11 May 2007 — Atlantic Dawn and Others v Commission
   (Case T-172/07)
   (2007/C 170/58)
   Language of the case: English
   Parties

      Applicants: Atlantic Dawn Ltd (Killybegs, Ireland), Antarctic Fishing Co. Ltd (Killybegs, Ireland), Atlantean Ltd (Killybegs, Ireland), Killybegs Fishing Enterprises Ltd (Killybegs, Ireland), Doyle Fishing Co. Ltd (Killybegs, Ireland), Western Seaboard Fishing Co. Ltd (Killybegs, Ireland), O'Shea Fishing Co. Ltd (Killybegs, Ireland), Aine Fishing Co. Ltd (Burtonport, Ireland), Brendelen Ltd (Lifford, Ireland), Cavankee Fishing Co. Ltd (Lifford, Ireland), Ocean Trawlers Ltd (Killybegs, Ireland), Eileen Oglesby (Burtonport, Ireland), Noel McGing (Killybegs, Ireland), Mullglen Ltd (Balbriggan, Ireland), Bradan Fishing Co. Ltd (Sligo, Ireland), Larry Murphy (Castletownbere, Ireland), Pauric Conneelly (Claregalway, Ireland), Thomas Flaherty (Kilronan, Ireland), Carmarose Trawling Co. Ltd (Killybegs, Ireland), Colmcille Fishing Ltd (Killybegs, Ireland) (represented by: D. Barry, Solicitor, G. Hogan, SC, N. Travers and T. O'Sullivan, Barristers)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicants respectfully request the Court to:

               —

               Annul Commission Regulation (EC) No 147/2007 of 15 February 2007 adapting certain fish quotas from 2007 to 2012 pursuant to Article 23(4) of Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy; in the alternative

               —

               annul Article 1 of and Annex I to Commission Regulation (EC) No 147/2007 of 15 February 2007 adapting certain fish quotas from 2007 to 2012 pursuant to Article 23(4) of Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy in so far and to the extent that the said provisions reduce the quota allocated to Ireland for mackerel (Scomber scombrus) for the years 2007 to 2012;

               —

               order the Commission to pay the costs of these proceedings.

         Pleas in law and main arguments
   By means of their application, the applicants seek pursuant to Article 230 EC, the annulment of Commission Regulation (EC) No 147/2007 of 15 February 2007 adapting certain fish quotas from 2007 to 2012 pursuant to Article 23(4) of Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (1).
   The applicants submit that the contested regulation should be invalidated on the basis of four grounds:
   First, the applicants claim that the Commission lacked power to adopt the contested regulation reducing quotas in 2007 to 2012 on the basis of Article 23(4) of Council Regulation 2371/2002.
   In the alternative, the applicants submit that should the Court conclude that the Commission was empowered to effect quota deductions for several years into the future on the basis of historic over-fishing, the Commission has allegedly misused its power in this case. In fact, the applicants contend that the Commission has not established that the Member States concerned by the contested regulation, namely, Ireland and the United Kingdom, have exceeded the fishing opportunities allocated to them, as required by Article 23(4) of the said regulation for deduction of quotas. Moreover, the applicants maintain that the Commission's sudden change of its established policy of deducting quotas on a ‘previous year basis’ departing from the wording and derived practice of Article 5 of Council Regulation 874/96, has breached the principle of legitimate expectations.
   Furthermore, the applicants claim that the Commission failed to provide reasons motivating its decision as required by Article 253 EC. On this basis, they submit that the contested regulation is inadequately reasoned, in particular, since it represents a clear and radical shift of policy with seriously adverse implications for the applicants.
   Finally, the applicants submit that the Commission has acted in breach of the principle of equal treatment by not taking measures equivalent to those contained in the contested regulation against any other fishing fleet, in circumstances where significant over-fishing of similarly threatened fish stock was reported.

      (1)  OJ L 46, 16.2.2007, p. 10.


title: Removal from the register of T-115/95

text:
No C 199/40          EN                 Official Journal of the European Communities                                   28 . 6 . 97
     27 February 1997, and in particular Article 2 thereof,        Communities has ordered the removal from the register of
     and                                                           Case T-259/94 : Michel Pouzol v. Court of Auditors of the
                                                                   European Communities .
— to order the Office to pay the costs of the action.
Pleas in law and main arguments adduced in support:                (') OJ No C 254, 10 . 9 . 1994 .
The applicant, a member of the First Board of Appeal of
the Office for Harmonization in the Internal Market
(Trade Marks and Designs ), contests the abovementioned
Decision of the President of the Office, adopted on
21 February 1997.                                                            Removal from the register of T-3 00/94 ( l )
                                                                                ( 97/C 199/93 )
The Decision concerns certain aspects of the organization
of the Boards of Appeal created pursuant to Article 130 of
                                                                                (Language of the case: French)
Council Regulation (EC ) No 40/94 of 20 December 1993
on the Community trademark.
                                                                   By order of 11 March 1997 the President of the Fifth
The applicant submits that the Decision, and in particular         Chamber of the Court of First Instance of the European
its Article 2, should be annuled on the following grounds.         Communities has ordered the removal from the register of
                                                                   Case T-300/94 : Henri Maurissen v. Court of Auditors of
Firstly, Article 2 of the Decision is contrary to                  the European Communities.
Articles 112 ( 1 ) and 131 ( 2 ) of the Regulation. It thus
infringes a rule relating to the application of the Treaty         O OJ No C 316, 12 . 11 . 1994 .
within the meaning of the second paragraph of Article 173
of the EC Treaty.
 Secondly, the Decision is unlawful because the President
 failed to consult two thirds of the members of the Boards
 of Appeal appointed by the Council of Ministers and
 because the Members who were consulted ( i.e. the                           Removal from the register of T-115/95 (')
 chairmen ) were given insufficient time to consider the                                        ( 97/C 199/94 )
 matter properly. That failure to engage in proper
 consultations amounts to an infringement of an essential                           (Language of the case: French)
 procedural requirement within the meaning of the second
 paragraph of Article 173 of the EC Treaty.                         By order of 30 April 1997 the President of the Second
                                                                    Chamber of the Court of First Instance of the European
 Thirdly, the Decision does not contain an adequate                 Communities has ordered the removal from the register of
 statement of the reasons on which Article 2 is based .             Case T-115/95 : Michel Pouzol v. Court of Auditors of the
                                                                    European Communities .
 Fourthly, the President has no competence to adopt any
 Decision introducing a hierarchical relationship within the
 Boards of Appeal ( as he purports to do in Article 2 (2 ) of       (') OJ No C 159 , 24 . 6 . 1995 .
 the Decision ) or to subject the entire membership of the
 Boards of Appeal to the hierarchical authority of the Vice
 President for Legal Affairs and of the President himself.
 Article 2 is therefore void for lack of competence within
 the meaning of the second paragraph of Article 173 of the
 EC Treaty.                                                                    Removal from the register of T-8/96 (')
                                                                                ( 97/C 199/95 )
                                                                                (Language of the case: French)
                                                                    By order of 28 April 1997 the President of the Second
           Removal from the register of T-259/94 (')
                                                                    Chamber of the Court of First Instance of the European
                         ( 97/C 199/92                              Communities has ordered the removal from the register of
                 (Language of the case: French)                      Case T-8/96 : Antonia Carparelli v. Commission of the
                                                                    European Communities.
  By order of 30 April 1997 the President of the Second
  Chamber of the Court of First Instance of the European             (') OJ No C 77, 16 . 3 . 1996 .


title: Case T-352/08: Action brought on 25 August 2008 — Pannon Hőerőmű v Commission of the European Communities

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/46

         Action brought on 25 August 2008 — Pannon Hőerőmű v Commission of the European Communities
   (Case T-352/08)
   (2008/C 285/85)
   Language of the case: Hungarian
   Parties

      Applicant(s): Pannon Hőerőmű Energiatermelő (Pécs, Hungary) (represented by: M. Kohlrusz, P. Simon and G. Ormai)

      Defendant(s): Commission of the European Communities
   Form of order sought

               —

               As a main claim, annulment of the decision of the Commission of 4 June 2008 on aid granted by Hungary under long term power purchase agreements (C 41/2005 (ex NN 49/2005), ‘the contested decision’).

               —

               In the alternative, that the applicant be exempted from the obligation to repay the aid imposed by the contested decision.

               —

               That the Commission be ordered to pay the costs.

         Pleas in law and main arguments
   The applicant is a private limited company principally involved in the production of electricity. Before the accession of Hungary to the European Union, certain electricity producers, as sellers, concluded long term power purchase agreements (‘PPAs’) with MVM Trade Villamosenergia-kereskedelmi Zrt. (‘MVM’), as purchaser. Under those agreements, MVM is obliged to purchase a specific quantity of electricity from the producers operating under the PPAs. According to the contested decision, that obligation to purchase constitutes state aid incompatible with the common market, which must be repaid by its recipients.
   In support of its main claim, seeking the annulment of the contested decision, the applicant essentially alleges that there has been a breach of essential procedural requirements, that the legal rules have been misapplied and that it has an obligation to supply in the general economic interest.
   As regards the breaches of essential procedural requirements, the applicant complains, first, that the Commission did not examine each of the PPAs but reached a general conclusion concerning all the PPAs. Second, the applicant alleges that the Commission did not take into account the applicability of the PPAs in the long term but only from 1 May 2004, that is to say, it considered the period between the accession of Hungary to the European Union and the adoption of the contested decision. Third, the applicant states that the Commission only examined how an economic operator in the position of MVM proceeded and did not analyse the conduct of economic operators in the position of the electricity producers. Fourth, it alleges that the Commission erroneously classed the price fixing mechanism adopted under the PPAs as a ‘guarantee’. Fifth, and finally, it submits that, as regards distortion of competition, the Commission merely made general statements and did not examine the actual circumstances.
   In the event that the plea in law alleging breach of essential procedural requirements is held to be unfounded, the applicant puts forward a plea based on the misapplication of the law. According to the applicant, the conditions are not met for the classification of the PPAs it concluded as State aid. First, the Commission is wrong to apply the criterion of private investor, since the situation of MVM cannot be compared to that of a typical private investor. Second, the measure cannot be said to be of a selective nature either, since the conclusion of the PPAs was an express legal obligation. Third, the advantage was not granted by the State as MVM is a commercial company operating under market conditions. Fourth, there was no distortion of competition since there is no evidence that the PPAs have had any effect on competition.
   However, in the event that the Court of First Instance should consider that the conditions for State aid are met, the applicant states that the service it supplied is in the nature of a service of general economic interest so that the PPAs which it concluded do not constitute State aid incompatible with the common market.
   In support of its claim that it should be exempted from the obligation to repay, submitted in the alternative in its application, the applicant relies on the principles of proportionality, of the protection of legitimate expectations and legal certainty and the right to legal redress.


title: Case T-312/10: Judgment of the General Court of 2 October 2012 — ELE.SI.A v Commission (Arbitration clause — Sixth multiannual framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) — Contract concerning the ‘I-Way, Intelligent, co-operative system in cars for road safety’ project — Termination of the contract — Request for repayment of the financial contribution paid — Damages — Action seeking to obtain the full financial contribution requested and to challenge the request for repayment — Counterclaim)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/25

         Judgment of the General Court of 2 October 2012 — ELE.SI.A v Commission
   (Case T-312/10) (1)

   (Arbitration clause - Sixth multiannual framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) - Contract concerning the ‘I-Way, Intelligent, co-operative system in cars for road safety’ project - Termination of the contract - Request for repayment of the financial contribution paid - Damages - Action seeking to obtain the full financial contribution requested and to challenge the request for repayment - Counterclaim)
   2012/C 355/54
   Language of the case: Italian

      Parties

      Applicant: Elettronica e sistemi per automazione (ELE.SI.A) SpA (Guidonia Montecelio, Italy) (represented by: P. Tomassi, S. Baratti and P. Caprile, lawyers)

      Defendant: European Commission (represented by: A. Aresu and A. Sauka, Agents)

      Re:

   Application seeking payment of the financial contribution to which the applicant considers that it is entitled under the terms of Contract No 27195, entered into on 13 December 2005 between the Commission and the applicant, relating to the research project entitled ‘I-Way, Intelligent, co-operative system in cars for road safety’, and a counterclaim for repayment of a part of the financial contribution paid and for payment of damages.

      Operative part of the judgment

   The General Court:

               1.

               Dismisses the action brought by Elettronica e sistemi per automazione (ELE.SI.A) SpA;

               2.

               Orders ELE.SI.A to pay to the European Commission a sum of EUR 184 129,74, plus interest from 18 May 2010, together with a sum of EUR 7 344,46, plus interest from 18 June 2010;

               3.

               Orders ELE.SI.A to pay the costs.

      (1)  OJ C 260, 25.9.2010.


title: Joined Cases C-23/03, C-52/03, C-133/03, C-337/03 and C-473/03: Order of the Court (Second Chamber) of  4 May 2006  — (references for a preliminary ruling from the Tribunale ordinario di Milano and the Tribunale ordinario di Torino (Italy)) — Criminal proceedings against Michel Mulliez and Others and Giuseppe Momblano (Joined Cases C-23/03 and C-52/03), Alessandro Nizza and Giacomo Pizzi (C-133/03), Fabrizio Barra (C-337/03), Adelio Aggio and Others (C-473/03) (First subparagraph of Article 104(3) of the Rules of Procedure — Company law — First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC — Annual accounts — Principle of a true and fair view — Penalties provided for in cases of false information on companies (false accounting) — Article 6 of First Directive 68/151/EEC — Requirement that penalties for breaches of Community law be appropriate)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/11

         Order of the Court (Second Chamber) of 4 May 2006 — (references for a preliminary ruling from the Tribunale ordinario di Milano and the Tribunale ordinario di Torino (Italy)) — Criminal proceedings against Michel Mulliez and Others and Giuseppe Momblano (Joined Cases C-23/03 and C-52/03), Alessandro Nizza and Giacomo Pizzi (C-133/03), Fabrizio Barra (C-337/03), Adelio Aggio and Others (C-473/03)
   (Joined Cases C-23/03, C-52/03, C-133/03, C-337/03 and C-473/03) (1)

   (First subparagraph of Article 104(3) of the Rules of Procedure - Company law - First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC - Annual accounts - Principle of a true and fair view - Penalties provided for in cases of false information on companies (false accounting) - Article 6 of First Directive 68/151/EEC - Requirement that penalties for breaches of Community law be appropriate)
   (2006/C 178/17)
   Language of the case: Italian
   Referring courts
   Tribunale ordinario di Milano, Tribunale ordinario di Torino
   Criminal proceedings against
   Michel Mulliez, Patrick Lesaffre, Peter Hordjk, Michel Hoste, Christophe Dubrulle, Benoit Lheureux, Guy Geffroy, Gregory Sartorius and Giuseppe Momblano (Joined Cases C-23/03 and C-52/03), Alessandro Nizza and Giacomo Pizzi (C-133/03), Fabrizio Barra (C-337/03), Adelio Aggio and Others (C-473/03)
   Re:
   References for a preliminary ruling — Tribunale ordinario di Milano, Tribunale ordinario di Torino — Interpretation of Article 6 of First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ L 65, p. 8) — Annual accounts — Offences of failure to publish, and publication of false information — Appropriate penalties
   Operative part of the order
   In situations such as those in issue in the main proceedings, First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, cannot be relied on as such against accused persons by the authorities of a Member State within the context of criminal proceedings, in view of the fact that a directive cannot, of itself and independently of national legislation adopted by a Member State for its implementation, have the effect of determining or increasing the criminal liability of those accused persons.

      (1)  OJ C 70, 22.3.2003.


title: Case T-824/14: Judgment of the General Court of 18 October 2016 — Eveready Battery Company v EUIPO — Hussain and Others (POWER EDGE) (EU trade mark — Opposition proceedings — Application for the EU figurative mark POWER EDGE — Earlier EU word mark EDGE — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Genuine use of the earlier mark — Article 15(1) and 42(2) of Regulation No 207/2009)

text:
               28.11.2016

               EN

               Official Journal of the European Union

               C 441/17

      Judgment of the General Court of 18 October 2016 — Eveready Battery Company v EUIPO — Hussain and Others (POWER EDGE)
      (Case T-824/14) (1)

      ((EU trade mark - Opposition proceedings - Application for the EU figurative mark POWER EDGE - Earlier EU word mark EDGE - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Genuine use of the earlier mark - Article 15(1) and 42(2) of Regulation No 207/2009))
      (2016/C 441/21)
      Language of the case: English

         Parties

         Applicant: Eveready Battery Company, Inc. (Saint-Louis, Missouri, United States) (represented by: N. Hebeis, lawyer)

         Defendant: European Union Intellectual Property Office (represented by: J. Garrido Otaola and M. Fischer, acting as Agents)

         Other parties to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Imran Hussain, Rizwana Hussain, Maariah Hussain, Danyaal Hussain and Zahra Hussain (Leeds, United Kingdom) (represented by: S. Malynicz, QC)

         Re:

      Action brought against the decision of the Second Board of Appeal of EUIPO of 6 October 2014 (Case R 38/2014-2), relating to opposition proceedings between Eveready Battery Company and the Hussains.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Eveready Battery Company, Inc. to pay the costs.

         (1)  OJ C 65, 23.2.2015.


title: Judgment of the Court of 28 January 2015 in Case E-14/14 — EFTA Surveillance Authority v Iceland (Failure by a Contracting Party to fulfil its obligations — Failure to implement — Directive 2009/48/EC on the safety of toys)

text:
               18.6.2015

               EN

               Official Journal of the European Union

               C 201/8

         JUDGMENT OF THE COURT
   of 28 January 2015
   in Case E-14/14
   EFTA Surveillance Authority v Iceland
   (Failure by a Contracting Party to fulfil its obligations — Failure to implement — Directive 2009/48/EC on the safety of toys)
   (2015/C 201/08)
   In Case E-14/14, EFTA Surveillance Authority v Iceland — APPLICATION for a declaration that by failing to adopt, and/or to notify the EFTA Surveillance Authority forthwith of, the measures necessary to implement the Act referred to at point 1a of Chapter XXIII of Annex II to the Agreement on the European Economic Area (Directive 2009/48/EC of the European Parliament and of the Council of 18 June 2009 on the safety of toys), as adapted to the EEA Agreement by way of Protocol 1 thereto and by Joint Committee Decision No 127/2012 of 13 July 2012, within the time prescribed, Iceland has failed to fulfil its obligations under the Act and under Article 7 of the EEA Agreement, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 28 January 2015, the operative part of which is as follows:
   The Court hereby:

               1.

               Declares that by failing, within the time prescribed, to adopt the measures necessary to implement the Act referred to at point 1a of Chapter XXIII of Annex II to the Agreement on the European Economic Area (Directive 2009/48/EC of the European Parliament and of the Council of 18 June 2009 on the safety of toys), as adapted to the EEA Agreement by way of Protocol 1 thereto and by Joint Committee Decision No 127/2012 of 13 July 2012, Iceland has failed to fulfil its obligations under the Act and under Article 7 of the EEA Agreement.

               2.

               Orders Iceland to bear the costs of these proceedings.


title: Case C-230/15: Judgment of the Court (Second Chamber) of 14 July 2016 (request for a preliminary ruling from the Rechtbank Den Haag — Netherlands) — Brite Strike Technologies Inc. v Brite Strike Technologies SA (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Article 22(4) — Jurisdiction in intellectual property disputes — Article 71 — Conventions concluded by the Member States on particular matters — Benelux Convention on Intellectual Property — Jurisdiction in disputes concerning Benelux trade marks and designs — Article 350 TFEU)

text:
               12.9.2016

               EN

               Official Journal of the European Union

               C 335/21

         Judgment of the Court (Second Chamber) of 14 July 2016 (request for a preliminary ruling from the Rechtbank Den Haag — Netherlands) — Brite Strike Technologies Inc. v Brite Strike Technologies SA
   (Case C-230/15) (1)

   ((Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Article 22(4) - Jurisdiction in intellectual property disputes - Article 71 - Conventions concluded by the Member States on particular matters - Benelux Convention on Intellectual Property - Jurisdiction in disputes concerning Benelux trade marks and designs - Article 350 TFEU))
   (2016/C 335/28)
   Language of the case: Dutch

      Referring court

   Rechtbank Den Haag

      Parties to the main proceedings

      Applicant: Brite Strike Technologies Inc.

      Defendant: Brite Strike Technologies SA

      Operative part of the judgment

   Article 71 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in the light of Article 350 TFEU, does not preclude the application to those disputes of the rule of jurisdiction for disputes relating to Benelux trademarks and designs, laid down in Article 4.6 of the Benelux Convention on Intellectual Property (Trade Marks and Designs) of 25 February 2005, signed in The Hague by the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands.

      (1)  OJ C 254, 3.8.2015.


title: Case C-586/12 P: Judgment of the Court (Tenth Chamber) of 19 December 2013 — Koninklijke Wegenbouw Stevin BV v European Commission (Appeal — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Fixing of the gross price of road pavement bitumen — Fixing of a rebate for road builders — Evidence — Principle of equal treatment — Unlimited jurisdiction — Proportionality of the fine — Review by the Court)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/21

         Judgment of the Court (Tenth Chamber) of 19 December 2013 — Koninklijke Wegenbouw Stevin BV v European Commission
   (Case C-586/12 P) (1)

   (Appeal - Agreements, decisions and concerted practices - Netherlands market in road pavement bitumen - Fixing of the gross price of road pavement bitumen - Fixing of a rebate for road builders - Evidence - Principle of equal treatment - Unlimited jurisdiction - Proportionality of the fine - Review by the Court)
   2014/C 52/36
   Language of the case: Dutch

      Parties

      Appellant: Koninklijke Wegenbouw Stevin BV (represented by: E. Pijnacker Hordijk, lawyer)

      Other party to the proceedings: European Commission (represented by: F. Ronkes Agerbeek, acting as Agent)

      Re:

   Appeal brought against the judgment of the General Court (Sixth Chamber) of 27 September 2012 in Case T-357/06 Koninklijke Wegenbouw Stevin v Commission, by which the General Court dismissed an action, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant by that decision

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Koninklijke Wegenbouw Stevin BV to pay the costs.

      (1)  OJ C 71, 9.3.2013.


title: Case F-116/11: Action brought on 7 November 2011 — ZZ v European Commission

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/69

      Action brought on 7 November 2011 — ZZ v European Commission
      (Case F-116/11)
      (2012/C 25/135)
      Language of the case: French

         Parties

         Applicant: ZZ (represented by: A. Salerno, lawyer)

         Defendant: European Commission

         Subject-matter and description of the proceedings

      Annulment of the decision not to admit the applicant to the assessment tests under EPSO competition EPSO/AD/207/11.

         Forms of order sought

                  —

                  annul the contested decision,

                  —

                  order the Commission to pay the applicant EUR 10 000 by way of compensation for non-pecuniary damage as a result of the contested decision.

                  —

                  order the Commission to pay the costs.


title: Action brought on 18 January 1999 by Lögstör Rör (Deutschland) GmbH against the Commission of the European Communities (Case T-16/99)

text:
27.3.1999                 EN                        Official Journal of the European Communities                                       C 86/27
The applicant claims:                                                          The applicant has since the outset of the proceedings
                                                                               acknowledged its participation in an infringement, and
                                                                               brings its action only in respect of details of the
I.   As its main application, that the Court                                   infringement and the amount of the fine. Whilst not
     should:                                                                   denying that there has been an infringement of
                                                                               Article 85(1) of the EC Treaty, it seeks the annulment of
                                                                               the contested decision in so far as it infringes the duty to
1. annul the Commission's decision of 21 October 1998                          state reasons and in so far as retrospective application of
     (C(1998) 3117 final), and its decision of 6 November                      the new guidelines on fines' (2) is unlawful.
     1998 (C(1998) 3415 final and C(1998) 3117
     final/corr);
                                                                               The pleas in law and main arguments are essentially the
                                                                               same as in Case T-9/1999.
2. order the Commission to pay the costs.
                                                                               (1) See Case T-9/99.
                                                                               (2) Guidelines on the method of setting fines imposed pursuant to
II. I n t h e a l t e r n a t i v e , t h a t t h e C o u r t s h o u l d :        Article 15(2) of Regulation No 17 and Article 65(5) of the
                                                                                ECSC Treaty (OJ C 9, 14.1.1998, p. 3).
1. annul Article 1 of the Commission's decision of
     21 October 1998 (C(1998) 3117 final), and of its
     decision of 6 November 1998 (C(1998) 3415 final and
     C(1998) 3117 final/corr) in so far as the applicant is
     accused of participating:
                                                                               Action brought on 18 January 1999 by Lögstör Rör
     (i) in a cartel covering the whole of the common                          (Deutschland) GmbH against the Commission of the
           market                                                                                European Communities
                                                                                (Case T-16/99)
     (ii) in infringements before December 1994, and after
           February 1996                                                                                (1999/C 86/48)
     (iii) in an agreement and the implementation of
                                                                                (Language of the case: German)
           concerted measures directed against Powerpipe
           AB.
                                                                               An action against the Commission of the European
2. Reduce the fine imposed on the applicant by Article 3                       Communities was brought before the Court of First
     of the decisions by such amount as the Court                              Instance of the European Communities on 18 January
     considers appropriate.                                                    1999 by Lögstör Rör (Deutschland) GmbH, whose
                                                                               registered office is in Fulda (Germany), represented by
                                                                               Hans-Joachim Hellmann, of the firm of Schilling, Zutt
3. Order the Commission to pay the costs.                                      and Anschütz, Rechtsanwälte, Mannheim (Germany), with
                                                                               an address for service in Luxembourg at the Chambers of
                                                                               Loesch and Wolter, 11 Rue Goethe.
III. F u r t h e r i n t h e a l t e r n a t i v e , t h a t t h e C o u r t
     should:
                                                                               The applicant claims that the Court should:
1. Reduce the fine imposed on the applicant by Article 3
     of the decisions by such amount as the Court
                                                                               1. annul Commission Decision C(1998) 3117 final/corr
     considers appropriate;
                                                                                of 21 October 1998 concerning a proceeding under
                                                                                Article 85 of the EC Treaty (Case IV/35.691/E-4, Fern-
                                                                                wärmetechnik-Kartell), as amended by Commission
2. Order the Commission to pay the costs.                                           Decision C(1998) 3415 final of 6 November 1998, in
                                                                                so far as it concerns the applicant,
Pleas in law and main arguments adduced in support:
                                                                                or, in the alternative, reduce the fine;
The applicant was fined ECU 925 000 by the Commission
for participating in a cartel between manufacturers and
distributors of district heating pipes (1).                                    2. order the Commission to pay the costs.
 ---pagebreak--- C 86/28               EN                    Official Journal of the European Communities                                27.3.1999
Pleas in law and main arguments adduced in support:                    Instance of the European Communities on 20 January
                                                                       1999 by KE KELIT Kunststoffwerk mbH, Linz (Austria),
The applicant was fined ECU 1 500 000 by the                           represented by the firm of Grassner, Lenz, Thewanger and
Commission for participating in a cartel between                       Partners, Rechtsanwälte, Linz, with an address for service
manufacturers and distributors of district heating pipes (1).          in Luxembourg at the Chambers of Messrs Loesch and
                                                                       Wolter, 11 Rue Goethe.
The applicant pleads:
                                                                       The applicant claims that the Court should:
Ð infringement of the right to a proper hearing;
Ð infringement of the duty to state reasons under                      1. annul Commission Decision C(1998) 3117 final of
     Article 190 of the EC Treaty;                                          21 October 1998 concerning a proceeding under
                                                                            Article 85 of the EC Treaty (Case IV/35.691/E-4, Fern-
                                                                            wärmetechnik-Kartell), as amended by Commission
Ð infringement of the principles of non-retroactivity and                   Decision C(1998) 3415 final of 6 November 1998, in
     the protection of legitimate expectations, and of the                  so far as it concerns the applicant;
     duty of the administration to act in accordance with
     statute;
                                                                            or, in the alternative,
Ð abuse of discretion in applying the guidelines on
     fines (2);
                                                                       2. annul the fine imposed on the applicant;
Ð abuse of discretion and discrimination in applying the
     rules whereby undertakings cooperating with the
     Commission during its investigation into a cartel may                  or, in the alternative,
     be exempted from fines (3);
                                                                       3. reduce the fine imposed on the applicant;
Ð misapplication of heading D of the above rules;
Ð infringement of the principles of equal treatment and                4. order the Commission to pay the costs in any event.
     proportionality, and of the prohibition of arbitrary
     action;
                                                                       Pleas in law and main arguments adduced in support:
Ð inaccuracy of the facts alleged;
                                                                       The applicant was fined ECU 360 000 by the Commission
Ð incorrect assessment of the turnover figures relevant to
                                                                       for participating in a cartel between manufacturers and
     determining the amount of the fine;
                                                                       distributors of district heating pipes. (1)
Ð fixing of an excessive interest rate; and
                                                                       The pleas in law and main arguments are essentially the
Ð erroneous legal assessment.                                          same as in Cases T-9/99 and T-16/99.
(1) See Case T-9/99.                                                   (1) See Case T-9/99.
(2) Guidelines on the method of setting fines imposed pursuant to
    Article 15(2) of Regulation No 17 and Article 65(5) of the
    ECSC Treaty (OJ C 9, 14.1.1998, p. 3).
                                                                       Action brought on 21 January 1999 by Cordis Obst- und
                                                                       Gemüsegrosshandel GmbH against the Commission of the
Action brought on 20 January 1999 by KE KELIT Kunst-                                        European Communities
stoffwerk mbH against Commission of the European
                         Communities                                                            (Case T-18/99)
                        (Case T-17/99)                                                          (1999/C 86/50)
                        (1999/C 86/49)
                                                                                (Language of the case: German)
                (Language of the case: German)
An action against the Commission of the European                       An action against the Commission of the European
Communities was brought before the Court of First                      Communities was brought before the Court of First


title: Case C-544/09 P: Judgment of the Court (Sixth Chamber) of 15 September 2011 — Federal Republic of Germany v European Commission (Appeal — State aid — Introduction of digital terrestrial television in the Berlin-Brandenburg region — Article 87(3)(c) EC — Market failure — Proportionality — Technological neutrality — Incentive effect)

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/5

         Judgment of the Court (Sixth Chamber) of 15 September 2011 — Federal Republic of Germany v European Commission
   (Case C-544/09 P) (1)

   (Appeal - State aid - Introduction of digital terrestrial television in the Berlin-Brandenburg region - Article 87(3)(c) EC - Market failure - Proportionality - Technological neutrality - Incentive effect)
   2011/C 319/07
   Language of the case: German

      Parties

      Appellant: Federal Republic of Germany (represented by: M. Lumma, J. Möller and B. Klein, acting as Agents)

      Other party to the proceedings: European Commission (represented by: H. van Vliet and K. Gross, acting as Agents)

      Re:

   Appeal against the judgment of the Court of First Instance (Seventh Chamber) of 6 October 2009 in Case T-21/06 Germany v Commission by which the Court dismissed the action 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 in Berlin-Brandenburg (OJ 2006 L 200, p. 14) — Infringement of Article 107(3)(c) TFEU

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 51, 27.2.2010.


title: Case C-141/11: Judgment of the Court (Second Chamber) of 5 July 2012 (reference for a preliminary ruling from the Södertörns tingsrätt — Sweden) — Torsten Hörnfeldt v Posten Meddelande AB (Equal treatment in employment and occupation — Prohibition of discrimination on grounds of age — National legislation conferring on employees an unconditional right to work until the age of 67 and providing for automatic termination of the employment relationship at the end of the month in which the employee reaches that age — Account not taken of the amount of the retirement pension)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/11

         Judgment of the Court (Second Chamber) of 5 July 2012 (reference for a preliminary ruling from the Södertörns tingsrätt — Sweden) — Torsten Hörnfeldt v Posten Meddelande AB
   (Case C-141/11) (1)

   (Equal treatment in employment and occupation - Prohibition of discrimination on grounds of age - National legislation conferring on employees an unconditional right to work until the age of 67 and providing for automatic termination of the employment relationship at the end of the month in which the employee reaches that age - Account not taken of the amount of the retirement pension)
   2012/C 287/18
   Language of the case: Swedish

      Referring court

   Södertörns tingsrätt

      Parties to the main proceedings

      Applicant: Torsten Hörnfeldt

      Defendant: Posten Meddelande AB

      Re:

   Reference for a preliminary ruling — Södertörns tingsrätt — Interpretation of the general principle of law on the prohibition of age discrimination and of Article 6 of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — National legislation and collective agreement granting employees an unconditional right to work until the age of 67 and providing for automatic termination without notice of the employment relationship at the end of the month in which the employee turns 67, without taking account of the actual pension paid to him

      Operative part of the judgment

   The second subparagraph of Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a national measure, such as that at issue in the main proceedings, which allows an employer to terminate an employee’s employment contract on the sole ground that the employee has reached the age of 67 and which does not take account of the level of the retirement pension which the person concerned will receive, as that measure is objectively and reasonably justified by a legitimate aim relating to employment policy and labour-market policy and constitutes an appropriate and necessary means by which to achieve that aim.

      (1)  OJ C 152, 21.5.2011.


title: Case T-870/16: Action brought on 7 December 2016 — Miserini Johansson v EIB

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/28

         Action brought on 7 December 2016 — Miserini Johansson v EIB
   (Case T-870/16)
   (2017/C 086/38)
   Language of the case: English

      Parties

      Applicant: Virna Miserini Johansson (Luxembourg, Luxembourg) (represented by: A. Senes, lawyer)

      Defendant: European Investment Bank (EIB)

      Form of order sought

   The applicant claims that the Court should:
   Principally:
   annul the EIB’s decision of 25 January 2016;
   order the EIB to restore the applicant’s full salary rights and all relevant accessories, including full pension rights and Optional Supplementary Provident Scheme (OSPS)contributions;
   order the EIB to reimburse the amount corresponding to the loss of salary (provisionally evaluated in the amount of EUR 24 000 as of 31 December 2016);
   order the EIB to retroactively calculate the applicant’s full pension rights and OSPS contributions, with effect from 1 February 2016;
   order the EIB to pay the applicant damages for the moral prejudice suffered by her, provisionally evaluated as EUR 5 000;
   order the EIB to pay the costs of the present proceedings, including legal fees and expertise fees (as applicable).
   In the alternative:
   order the EIB to restore the prejudice that the applicant has suffered for the loss of her full salary rights by paying her a sum of corresponding damages provisionally evaluated in the amount of EUR 24 000 as of 31 December 2016;
   appoint an expert to determine the exact final amount of the item above, of the applicant’s pensions rights and OSPS contributions, with effect from 1 February 2016;
   order the EIB to reimburse the medical and psychological costs related to the health issues developed due to the severe stress suffered by the applicant and which is not reimbursed by the EIB Health Insurance Scheme;
   order the EIB to compensate the applicant for the moral prejudice she has suffered, evaluated at EUR 5 000, with, if required by the Court, an expert being appointed in order to determine the exact sum;
   order the EIB to pay the costs of the present proceedings, including legal fees and expertise fees (as applicable).

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law, alleging that the EIB breached the applicant’s fundamental rights as guaranteed by the Charter of Fundamental Rights of the European Union and the case-law of the Court of Justice concerning the protection of fundamental rights (inter alia, judgment of 13 December 1979, Hauer v Rheinland-Pfalz, C-44/79, EU:C:1979:290).
   The applicant argues that the EIB violated its general duty of care owed to the applicant with regard to her medical condition and the risks to which this condition exposed her. Furthermore, the applicant was not properly informed of the procedures to follow in relation to the proof of an occupational disease. The applicant maintains, in any case, that the disease from which she is suffering has been declared to be occupational in origin by medical opinion and that she has provided the EIB with all relevant documents to enable a determination to be made. No further procedural steps, on her part, are required, and the EIB should immediately provide her with the relief sought.


title: Case C-84/15: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 19 February 2015 — Sonos Europe BV v Staatssecretaris van Financiën

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/18

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 19 February 2015 — Sonos Europe BV v Staatssecretaris van Financiën
   (Case C-84/15)
   (2015/C 146/26)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Sonos Europe BV

      Defendant: Staatssecretaris van Financiën

      Question referred

   Should CN headings 8517, 8518, 8519 and 8527 be interpreted as meaning that a product such as that described in this judgment (the ZonePlayer), which receives digital information and without storing it (streaming) reproduces it in the form of amplified sound by means of five (integrated) loudspeakers and/or forwards it to other devices in the local area network, is amenable to classification under one or more of those headings and, if so, which heading(s)? Alternatively, should CN heading 8543 be interpreted as meaning that a device such as the ZonePlayer ought to be classified under that heading as an electrical machine or apparatus with an individual function?


title: Case C-408/13: Request for a preliminary ruling from the Amtsgericht Karlsruhe (Germany) lodged on 18 July 2013 — Barbara Huber v Manfred Huber

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/15

         Request for a preliminary ruling from the Amtsgericht Karlsruhe (Germany) lodged on 18 July 2013 — Barbara Huber v Manfred Huber
   (Case C-408/13)
   2013/C 274/26
   Language of the case: German

      Referring court

   Amtsgericht Karlsruhe

      Parties to the main proceedings

      Applicant: Barbara Huber

      Defendant: Manfred Huber

      Question referred

   Whether it is compatible with Article 3(a) and (b) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, (1)

   if it is provided in the first sentence of Paragraph 28(1) of the Gesetzes zur Geltendmachung von Unterhaltsansprüchen im Verkehr mit ausländischen Staaten (Auslandsunterhaltsgesetz — AUG),
   that, if a party concerned does not have his or her habitual residence in Germany, the court which is to rule exclusively on applications in maintenance cases falling under Article 3(a) and (b) of Regulation (EC) No 4/2009 is the Local Court which has jurisdiction for the seat of the Higher Regional Court in whose area of jurisdiction the defendant or creditor has his or her habitual residence?

      (1)  OJ 2009 L 7, p. 1.


title: Case T-83/15: Action brought on 20 February 2015 — Swatch v OHIM — L’atelier Wysiwyg (wysiwatch WhatYouSeeIsTheWatchYouGet)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/34

         Action brought on 20 February 2015 — Swatch v OHIM — L’atelier Wysiwyg (wysiwatch WhatYouSeeIsTheWatchYouGet)
   (Case T-83/15)
   (2015/C 127/46)
   Language in which the application was lodged: English

      Parties

      Applicant: Swatch AG (Biel, Switzerland) (represented by: P. González-Bueno Catalán de Ocón, lawyer)

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

      Other party to the proceedings before the Board of Appeal: L’atelier Wysiwyg (Besançon, France)

      Details of the proceedings before OHIM

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

      Trade mark at issue: Community figurative mark containing the word elements ‘wysiwatch’ and ‘WhatYouSeeIsTheWatchYouGet’ — Application for registration No 11 041 597

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 4 December 2014 in Case R 1873/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM and L’atelier Wysiwyg to pay the costs.

      Plea(s) in law

               —

               Infringement of Article 8(5) of Regulation No 207/2009.


title: Case C-333/01: Action brought on 6 September 2001 by Commission of the European Communities against Kingdom of Spain

text:
C 317/14                EN                    Official Journal of the European Communities                                    10.11.2001
The Applicant claims that the Court should:                              Pleas in law and main arguments
(1) declare that by failing to adopt the laws, regulations               The Hellenic Republic contends that a financial correction has
      or administrative provisions necessary to comply with              been imposed upon it unlawfully in the cotton, olive oil, grape
      Commission Directive 1999/28/EC (1) of 21 April 1999               and sheepmeat and goatmeat sectors.
      amending the Annex to Council Directive 92/14/EEC (2)
      on the limitation of the operation of aeroplanes covered
      by Part II, Chapter 2, Volume 1 of Annex 16 to the                 The Hellenic Republic contends that the proposed financial
      Convention on International Civil Aviation or, in any              correction should be annulled on the following grounds: the
      event, by failing to inform the Commission of those                applicable regulations were misinterpreted and misapplied;
      measures, Ireland has failed to fulfil its obligations under       there was error as to the facts and the facts were incorrectly
      that Directive;                                                    assessed; the statement of reasons is defective, insufficient and
                                                                         vague; and the principle of proportionality was infringed and
(2) order Ireland to pay the costs.                                      the Commission exceeded the limits of its discretion.
Pleas in law and main arguments
                                                                         Action brought on 6 September 2001 by Commission of
The pleas in law and main arguments are analogous to those                  the European Communities against Kingdom of Spain
in Case C-323/01 (3); the time-limit for transposition expired
on 1 September 1999.                                                                              (Case C-333/01)
                                                                                (2001/C 317/25)
(1) OJ L 118, 6.5.1999, p. 53.
(2) OJ L 76, 23.3.1992, p. 21.
(3) See page 12 of this Official Journal.                                An action against the Kingdom of Spain was brought before the
                                                                         Court of Justice of the European Communities on 6 September
                                                                         2001 by the Commission of the European Communities,
                                                                         represented by Gregorio Valero Jordana, of the Legal Service,
                                                                         acting as Agent, with an address for service care of Luis
                                                                         Escobar Guerrero, also of the Commission Legal Service,
                                                                         Wagner Centre, Luxembourg.
                                                                         The applicant claims that the Court should:
Action brought on 6 September 2001 by the Hellenic
Republic against the Commission of the European Com-
                                                                         —     Declare that, by failing to adopt and bring into force
                              munities
                                                                               within the prescribed period the laws, regulations and
                                                                               administrative provisions necessary to comply with
                         (Case C-332/01)                                       Council Directive 98/81/EC of 26 October 1998
                                                                               amending Directive 90/219/EEC on the contained use of
                                                                               genetically modified micro-organisms (1), or, in any event,
                         (2001/C 317/24)                                       by having failed to communicate such provisions to the
                                                                               Commission, the Kingdom of Spain has failed to fulfil its
                                                                               obligations under that directive; and
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European             —     Order the Kingdom of Spain to pay the costs.
Communities on 6 September 2001 by the Hellenic Republic,
represented by Vasilios Kontolaimos, Legal Adviser in the State
Legal Service, and Ioannis Khalkias, Member of that Service,
with an address for service in Luxembourg at the Greek                   Pleas in law and main arguments
Embassy, 117 Val Sainte-Croix.
                                                                         The pleas in law and main arguments are analogous to those
The applicant claims that the Court should:                              in Case C-323/01 (2); the time limit for implementation expired
                                                                         on 5 June 2000.
—     annul or, in the alternative, amend Commission Decision
      C(2001) 1795 final of 11 July 2001 excluding from                  (1) OJ L 330 of 5.12.1998, p. 13.
      Community financing certain expenditure incurred by                (2) See page 12 of this Official Journal.
      the Member States under the Guarantee Section of the
      EAGGF.


title: Case C-463/12: Judgment of the Court (Fourth Chamber) of 5 March 2015 (request for a preliminary ruling from the Østre Landsret — Denmark) — Copydan Båndkopi v Nokia Danmark A/S (Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Articles 5(2)(b) and 6 — Reproduction right — Exception — Copying for private use — Reproductions made with the aid of mobile telephone memory cards — Fair compensation — Levy on reproduction media — Equal treatment — Reimbursement of the levy — Minimal prejudice)

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/2

         Judgment of the Court (Fourth Chamber) of 5 March 2015 (request for a preliminary ruling from the Østre Landsret — Denmark) — Copydan Båndkopi v Nokia Danmark A/S
   (Case C-463/12) (1)

   ((Reference for a preliminary ruling - Copyright and related rights - Directive 2001/29/EC - Articles 5(2)(b) and 6 - Reproduction right - Exception - Copying for private use - Reproductions made with the aid of mobile telephone memory cards - Fair compensation - Levy on reproduction media - Equal treatment - Reimbursement of the levy - Minimal prejudice))
   (2015/C 138/02)
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: Copydan Båndkopi

      Defendant: Nokia Danmark A/S

      Operative part of the judgment

               1)

               Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society does not preclude national legislation which provides that fair compensation is to be paid, in accordance with the exception to the reproduction right for copies made for private use, in respect of multifunctional media such as mobile telephone memory cards, irrespective of whether the main function of such media is to make such copies, provided that one of the functions of the media, be it merely an ancillary function, enables the operator to use them for that purpose. However, the question whether the function is a main or an ancillary one and the relative importance of the medium’s capacity to make copies are liable to affect the amount of fair compensation payable. In so far as the prejudice to the rightholder may be regarded as minimal, the making available of such a function need not give rise to an obligation to pay fair compensation.

               2)

               Article 5(2)(b) of Directive 2001/29 does not preclude national legislation which makes the supply of media that may be used for copying for private use, such as mobile telephone memory cards, subject to the levy intended to finance fair compensation payable in accordance with the exception to the reproduction right for copies for private use, but does not make the supply of components whose main purpose is to store copies for private use, such as the internal memories of MP3 players, subject to that levy, provided that those different categories of media and components are not comparable or the different treatment they receive is justified, which is a matter for the national court to determine.

               3)

               Article 5(2)(b) of Directive 2001/29 must be interpreted as not precluding national legislation which requires payment of the levy intended to finance fair compensation, in accordance with the exception to the reproduction right for copies for private use, by producers and importers who sell mobile telephone memory cards to business customers and are aware that those cards will be sold on by those customers but do not know whether the final purchasers of the cards will be individuals or business customers, on condition that:

                           —

                           the introduction of such a system is justified by practical difficulties;

                           —

                           the persons responsible for payment are exempt from the levy if they can establish that they have supplied the mobile telephone memory cards to persons other than natural persons for purposes clearly unrelated to copying for private use, it being understood that the exemption cannot be restricted to the supply of business customers registered with the organisation responsible for administering the levy;

                           —

                           the system provides for a right to reimbursement of that levy which is effective and does not make it excessively difficult to repay the levy and only the final purchaser of such a memory card may obtain reimbursement by submitting an appropriate application to that organisation.

               4)

               Article 5(2)(b) of Directive 2001/29, read in the light of recital 35 in the preamble to that directive, must be interpreted as permitting the Member States to provide, in certain cases covered by the exception to the reproduction right for copies for private use, for an exemption from the requirement under that exception to pay fair compensation, provided that the prejudice caused to rightholders in such cases is minimal. It is within the discretion of the Member States to set the threshold for such prejudice, it being understood that that threshold must, inter alia, be applied in a manner consistent with the principle of equal treatment.

               5)

               Directive 2001/29 is to be interpreted as meaning that, where a Member State has decided, pursuant to Article 5(2) of that directive, to exclude, from the material scope of that provision, any right for rightholders to authorise reproduction of their works for private use, any authorisation given by a rightholder for the use of files containing his works can have no bearing on the fair compensation payable in accordance with the exception to the reproduction right for reproductions made in accordance with Article 5(2)(b) of that directive with the aid of such files and cannot, of itself, give rise to an obligation on the part of the user of the files concerned to pay remuneration of any kind to the rightholder.

               6)

               The implementation of technological measures under Article 6 of Directive 2001/29 for devices used to reproduce protected works, such as DVDs, CDs, MP3 players and computers, can have no effect on the requirement to pay fair compensation in accordance with the exception to the reproduction right in respect of reproductions made for private use by means of such devices. However, the implementation of such measures may have an effect on the actual level of such compensation.

               7)

               Directive 2001/29 precludes national legislation which provides for fair compensation, in accordance with the exception to the reproduction right, in respect of reproductions made using unlawful sources, namely from protected works which are made available to the public without the rightholder’s consent.

               8)

               Directive 2001/29 does not preclude national legislation which provides for fair compensation, in accordance with the exception to the reproduction right, in respect of reproductions of protected works made by a natural person by or with the aid of a device which belongs to a third party.

      (1)  OJ C 399, 22.12.2012.


title: Case T-17/15: Action brought on 15 January 2015  — Italy v Commission

text:
               9.3.2015

               EN

               Official Journal of the European Union

               C 81/27

         Action brought on 15 January 2015 — Italy v Commission
   (Case T-17/15)
   (2015/C 081/35)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato, and G. Palmieri, acting as Agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the notice of Competition EPSO/AD/294/14 — Administrators (AD 6) in the field of data protection;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of Article 263 TFEU, Article 264 TFEU and Article 266 TFEU.

                           —

                           The applicant argues that the Commission breached the principle of res judicata in relation to the judgment of the Court of Justice in Case C-566/10 P [Italy v Commission], which declares that notices restricting the choice of a second language for individuals taking part in open competitions of the European Union to only English, French or German are unlawful.

               2.

               Second plea in law, alleging infringement of Article 342 TFEU and Articles 1 and 6 of Regulation No 1/58.

                           —

                           In that regard, the applicant maintains that, by restricting the number of languages from which individuals taking part in open competitions of the European Union may select their second language to three, the Commission in practice laid down a new rule concerning the languages of the institutions, impinging on the Council’s exclusive competence in that area.

               3.

               Third plea in law, alleging infringement of: (i) Article 12 EC, now Article 18 TFEU; (ii) Article 22 of the Charter of Fundamental Rights of the European Union; (iii) Article 6(3) TEU; (iv) Article 1(2) and (3) of Annex III to the Staff Regulations; (v) Articles 1 and 6 of Regulation No 1/58; and (vi) Article 1d(1) and (6), the second paragraph of Article 27, and Article 28(f) of the Staff Regulations.

                           —

                           The applicant submits, in that regard, that the language restriction applied by the Commission is discriminatory, as the provisions cited above prohibit the imposing on EU citizens or on officials of the institutions language restrictions not (or not yet) generally and objectively laid down by those institutions’ internal rules of procedure as envisaged by Article 6 of Regulation No 1/58; they also prohibit the introduction of such restrictions except in response to a specific and justifiable interest of the service concerned.

               4.

               Fourth plea in law, alleging infringement of Article 6(3) TEU in so far as that provision enshrines the principle of the protection of legitimate expectations as a fundamental right resulting from the constitutional traditions common to the Member States.

                           —

                           In that regard, the applicant claims that the Commission undermined citizens’ faith in the possibility of choosing as their second language any language of the European Union, as had continually been the case until 2007 and as was authoritatively reiterated in the judgment of the Court of Justice in Case C-566/10 P.

               5.

               Fifth plea in law, alleging a misuse of powers, infringement of the substantive rules relating to the nature and purpose of competition notices (particularly Article 1d(1) and (6), Article 28(f), the second paragraph of Article 27, Article 34(3), and Article 45(1) of the Staff Regulations), and a breach of the principle of proportionality.

                           —

                           The applicant argues, in that regard, that, by restricting in advance and across the board the number of languages from which a second language may be chosen to three, the Commission has brought testing the candidates’ language skills forward to the notice and conditions for admission stage, when such testing should instead be carried out during the competition itself. Thus, language skills become more important than professional ones.

               6.

               Sixth plea in law, alleging infringement of: (i) Article 18 TFEU and the fourth paragraph of Article 24 TFEU; (ii) Article 22 of the Charter of Fundamental Rights of the European Union; (iii) Article 2 of Regulation No 1/58; and (iv) Article 1d(1) and (6) of the Staff Regulations.

                           —

                           In that regard, the applicant submits that, in making it compulsory for candidates to send applications in English, French or German, and for EPSO to send those candidates communications relating to the conduct of the competition in one of those languages, the Commission infringed the right of EU citizens to communicate with the institutions in their own language, and introduced further discrimination to the detriment of anyone not having a thorough knowledge of one of those three languages.

               7.

               Seventh plea in law, alleging: (i) infringement of Articles 1 and 6 of Regulation No 1/58, Article 1d(1) and (6) and Article 28(f) of the Staff Regulations, Article 1(1)(f) of Annex III to the Staff Regulations, and the second paragraph of Article 296 TFEU (failure to provide a statement of reasons); (ii) breach of the principle of proportionality; and (iii) distortion of the facts.

                           —

                           The applicant notes, in that regard, that the Commission justified the restriction to three languages on the basis of the need for new recruits to be able immediately to communicate within the institutions. That statement of reasons is, it argues, a distortion of the facts because the three languages in question are not the ones used most frequently in communications between different language groups within the institutions; the restriction is also a disproportionate restriction of the fundamental right not to be discriminated against on the grounds of language, since there are less restrictive means of ensuring quicker communication within the institutions.


title: Case C-493/06 P: Appeal brought on 30 November 2006 by Tesco Stores Ltd against the judgment of the Court of First Instance (Third Chamber) delivered on 13 September 2006 in Case T-191/04: MIP Group Intellectual Property GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/13

         Appeal brought on 30 November 2006 by Tesco Stores Ltd against the judgment of the Court of First Instance (Third Chamber) delivered on 13 September 2006 in Case T-191/04: MIP Group Intellectual Property GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-493/06 P)
   (2007/C 56/22)
   Language of the case: English
   Parties

      Appellant: Tesco Stores Ltd (represented by: E. Kelly, Solicitor, S. Malynicz, Barrister)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market, MIP Metro Group Intellectual Property GmbH & Co. KG
   Form of order sought
   The applicant claims that the Court should:

               —

               set aside the judgment of the Court of First Instance of 13 September 2006 in Case T-191/04.

               —

               order the Respondent to pay Tesco's costs of this appeal and of the appeal before the Court of First Instance.

         Pleas in law and main arguments
   The appellant maintains that the contested judgment should be set aside on the grounds that the Court of First Instance has committed a breach of procedure which adversely affects the appellant and has infringed Community law. In particular, the applicant submits that:

               1.

               Article 8 and 42 of the Community Trade Mark Regulation (1) do not require an opponent to prove any of the conditions of an opposition beyond the opposition period. A correct and legally certain interpretation of the provisions requires an opponent to demonstrate conditions such as proprietorship and subsistence of the earlier right once and once only, that is to say, at the time of the opposition;

               2.

               Rules 15, 16 and 20 of Commission Regulation (EC) No. 2868/95 of 13 December 1995 implementing Regulation No. 40/94 on the Community Trade Mark (2) did not require the opponent to substantiate the earlier mark in any way beyond that already provided and, in particular, did not impose any obligation upon it to demonstrate renewal of the earlier mark beyond the opposition period;

               3.

               There was a legitimate expectation on the part of Tesco that it was not required to provide further substantiation of its earlier right beyond that already provided;

               4.

               To impose upon Tesco the obligation to demonstrate renewal, as of 28 January 2000, 24 February 2000, 13 June 2000 or even 23 October 2000 would be to require Tesco retrospectively to prove something that, as of those dates, it was either not able and/or not required to do at the time under national law;

               5.

               There were breaches of procedure before the Court of First Instance adversely affecting Tesco in that: (a) OHIM sought to rely on a version of its Opposition Guidelines that was not in use at the material time; and (b) OHIM advanced arguments that went beyond the terms of the dispute as delimited by the parties.

      (1)  OJ L 11, p. 1.

      (2)  OJ L 303, p. 1.