title: Case C-204/03: Action brought on 14 May 2003 by the Commission of the European Communities against the Kingdom of Spain

text:
20.9.2003              EN                             Official Journal of the European Union                                          C 226/3
for a preliminary ruling in the proceedings pending before that                   Member States relating to turnover taxes — Common
court between Daniel Fernando Messejana Viegas and                                system of value added tax: uniform basis of assessment
Companhia de Seguros Zurich SA, Mitsubishi Motors de
Portugal SA, participant: CGU International Insurance plc —
Agência Geral em Portugal, Instituto de Solidariedade e                      2.   Order the defendant to pay the costs.
Segurança Social (ISSS), on the interpretation of the Second
Council Directive 84/5/EEC of 30 December 1983 on the
approximation of the laws of the Member States relating to
                                                                             Pleas in law and main arguments
insurance against civil liability in respect of the use of motor
vehicles (OJ 1984 L 8, p. 17), the Court (First Chamber),
composed of: M. Wathelet, President of the Chamber, P. Jann
(Rapporteur) and A. Rosas, Judges; S. Alber, Advocate General;               The Commission charges the Kingdom of Spain with having
R. Grass, Registrar, has made an order on 24 July 2003, the                  failed to fulfil its obligations under a number of provisions of
operative part of which is as follows:                                       the Sixth Directive on two grounds:
                                                                             1.   Application of a deducible proportion to taxable persons
                                                                                who carry out only transactions in respect of which value
Article 1(2) of the Second Council Directive 84/5/EEC of
                                                                                added tax is deductible (Article 102(1) of the Spanish Law
30 December 1983 on the approximation of the laws of the
                                                                                on VAT).
Member States relating to insurance against civil liability in respect
of the use of motor vehicles precludes national laws which provide for a
number of types of civil liability applicable to road-traffic accidents
laying down, in respect of one of them, maximum amounts of com-                   According to the Commission, the Spanish provision
pensation that are lower than the minimum amounts of cover laid                   broadens unlawfully the scope of the deductible propor-
down by that article.                                                             tion in that it applies not only to taxable persons who
                                                                                carry out transactions in respect of which value added tax
                                                                                is deductible and transactions in respect of which value
                                                                                added tax is not deductible (mixed taxable persons), but
                                                                                also to those who carry out only taxable transactions (fully
(1) OJ C 156 of 29.6.2002.                                                        taxable persons), just because they have received subsidies
                                                                                which are not part of the basis of assessment of their
                                                                                taxable transactions. According to Article 17(5) of the
                                                                                Sixth Directive, the deductible proportion mechanism
                                                                                applies only where taxable persons carry out both
                                                                                transactions which are taxable but exempt and taxable
                                                                                transactions.
Action brought on 14 May 2003 by the Commission of the
   European Communities against the Kingdom of Spain
                                                                                Furthermore, the inclusion of subsidies in the deductible
                                                                                proportion as regards mixed taxable persons is an option
                          (Case C-204/03)
                                                                                which the Member States have and constitutes an
                                                                                exception to the general principle of deduction of the
                          (2003/C 226/04)                                         amounts borne by way of VAT in respect of taxable
                                                                                unexempted transactions. Therefore, that option may not
An action against the Kingdom of Spain was brought before the                     be exercised in order to treat unfavourably situations other
Court of Justice of the European Communities on 14 May                            than those provided for by the directive, contrary to what
2003 by the Commission of the European Communities, repre-                        has been provided by the Community legislature. The
sented by Enrico Traversa, Legal Adviser, and Lidia Lozano                        possible consequences for the neutrality of the tax arising
Palacios, of its Legal Service, acting as Agents.                                 from the use by the Member States of the option provided
                                                                                for under Article 19 of the directive cannot justify the
                                                                                extension by the Spanish authorities of the restriction on
                                                                                deduction to fully taxable persons, since the necessary
The applicant claims that the Court should:                                       legal basis for it is lacking and it is a measure contrary to
                                                                                the directive.
1.   Declare that, by maintaining in force provisions which pro-
     vide for a deductible proportion for taxable persons who                     The Spanish provision at issue results in double taxation,
     carry out only taxable transactions, and which lay down a                    since the taxable person who receives a subsidy uses it as
     special rule which limits the right to deduct VAT on the                     part of the consideration for the purchase of goods or
     purchase of goods or services just because they were sub-                    services. Such purchases are taxed in accordance with the
     sidised, the Kingdom of Spain has failed to fulfil its obliga-               Sixth Directive, so that the amount of the subsidy is
     tions under Community law and, in particular, Articles 17                    already subject to the relevant VAT. If that amount is then
     and 19 (2) and (5) of Sixth Council Directive 77/388/EEC (1)                 included in the denominator for the deductible propor-
     of 17 May 1977 on the harmonization of the laws of the                       tion, resulting in the restriction of the right to deduct of
 ---pagebreak--- C 226/4              EN                        Official Journal of the European Union                                           20.9.2003
    the taxable person who receives it, the subsidy concerned                Court of Justice, inasmuch as it is a special rule which has
    will be liable to VAT twice. Although Article 19 provides                no basis in the directive, applies to all taxable persons in
    expressly that the Member States may include in the                      receipt of a subsidy, including fully taxable persons, and,
    deductible proportions for mixed taxable persons those                   even it if its applied to mixed taxable persons, it may in
    subsidies which are not part of the basis of assessment,                 certain circumstances be less advantageous than using the
    that exception to the ‘normal’ method of calculation is a                option provided for by Article 19 of the directive.
    tool available to the national legislature to prevent a body
    which is ‘by its nature’ subsidised obtaining repayment of
    VAT for carrying out a merely nominal activity in order to
    qualify as a taxable person. However, that provision is to          (1) OJ 1977 L 145, p. 1.
    be interpreted restrictively. On the other hand, it is clear
    that, by including subsidies in the deductible proportion,
    the right to deduct of mixed taxable persons is reduced,
    while that is not possible with regard to fully taxable
    persons. Article 19 is an optional provision and the
    Member States may determine the procedures for
    implementing it provided they observe, as a whole, the              Reference for a preliminary ruling by the Tribunale
    basic principles and provisions of the Sixth Directive,             Amministrativo Regionale per la Lombardia — Sezione
    which contains other provisions which make it possible to           staccata di Brescia — by order of that Court of
    prevent deductions considered to be abusive.                        8 October 2002, 17 December 2002 and 14 February
                                                                        2003 in the case of Consorzio Aziende Metano —
                                                                        CO.NA.ME. against il Comune di Cingia de' Botti; with
                                                                                the participation of Padania Acque S.p.A.
                                                                                (Case C-231/03)
2.  Laying down of a special rule which limits the right to
    deduct VAT owed for the purchase of goods or services
    financed in whole or in part by subsidies (second para-                                       (2003/C 226/05)
    graph of Article 104(2) of the Spanish Law on VAT).
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Tribunale
    That special rule, according to which subsidies to finance          Amministrativo Regionale per la Lombardia — Sezione stac-
    the purchase of certain goods or services do not give rise          cata di Brescia (Lombardy Regional Administrative Court —
    to the application of the deductible proportion and are             Separate Chamber for Brescia) of 8 October 2002,
    not included in the denominator but instead limit the right         17 December 2002 and 14 February 2003, received at the
    to deduct the VAT paid on the portion of the price of the           Court Registry on 28 May 2003, for a preliminary ruling in the
    goods or services financed by the subsidy, is incompatible          case of Consorzio Aziende Metano — CO.NA.ME. against il
    with the Sixth Directive. Indeed, the Spanish provision             Comune di Cingia de' Botti; with the participation of Padania
    establishes a limit on the right to deduct in respect of fully      Acque S.p.A. on the following question:
    taxable persons which is not provided for under the
    directive. As for mixed taxable persons, the only limitation
    possible under the directive is the inclusion of the
    subsidies in the denominator of the deductible proportion.
                                                                        Do Articles 43, 49 and 81 EC, in so far as they prohibit,
    The VAT which a taxable person has paid for a certain
                                                                        respectively, restrictions on the freedom of establishment of
    service or certain goods is always deductible in accordance
                                                                        nationals of a Member State in the territory of another Member
    with the rules on the right to deduct provided for by the
                                                                        State and on the freedom to provide services within the
    directive and, to that end, the source of the financing for
                                                                        Community in respect of nationals of Member States and the
    the goods or services are of no relevance whatever. The
                                                                        commercial practices of undertakings which have as their effect
    Member States may take into account only those subsidies
                                                                        the prevention, restriction or distortion of competition within
    which are not linked to the price of the transaction, and
                                                                        the European Union, preclude provision for the direct award,
    may choose whether or not to include them in the
                                                                        without the announcement of a tender, of the management of a
    deductible proportion only if the taxable person carries
                                                                        public contract for the distribution of gas to a company in
    out, at the same time, taxed and exempt transactions.
                                                                        which a local authority participates, whenever that participa-
    Application of the provision is optional and the Member
                                                                        tion in the share capital is such as to preclude any direct control
    States may determine the procedures for implementing it
                                                                        over the management itself and must it therefore be declared
    provided they observe the basic principles and provisions
                                                                        that, as is the case in these proceedings where the shareholding
    of the Sixth Directive as a whole.
                                                                        amounts to 0,97 % of the share capital, the essential precondi-
                                                                        tions for ‘in-house’ management are not met?
    The Spanish provision infringes the fundamental right to
    deduct VAT, acknowledged as such in the case-law of the


title: Case C-209/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 3 May 2012 — Walter Endress v Allianz Lebensversicherungs-AG

text:
               7.7.2012

               EN

               Official Journal of the European Union

               C 200/7

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 3 May 2012 — Walter Endress v Allianz Lebensversicherungs-AG
   (Case C-209/12)
   2012/C 200/13
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Walter Endress

      Defendant: Allianz Lebensversicherungs-AG

      Question referred

   Must the first indent of Article 15(1) of Council Directive 90/619/EEC of 8 November 1990 (1) on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC (Second Life Assurance Directive), having regard to Article 31(1) of Council Directive 92/96/EEC of 10 November 1992 (2) on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (Third Life Assurance Directive), be interpreted as precluding a provision — such as the fourth sentence of Paragraph 5a(2) of the Versicherungsvertragsgesetz (Law on insurance contracts) in the version of the Drittes Gesetz zur Durchführung versicherungsrechtlicher Richtlinien des Rates der Europäischen Gemeinschaften (Third Law implementing directives of the Council of the European Communities on insurance law) of 21 July 1994 — under which a right of cancellation lapses one year at the latest after payment of the first premium even if the policy-holder has not been informed about the right of cancellation?

      (1)  Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC, OJ 1990 L 330, p. 50.

      (2)  Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive), OJ 1992 L 360, p. 1.


title: Case T-688/16 R: Order of the President of the General Court of 17 February 2017 — Janssen-Cases v Commission (Interim proceedings — Civil service — Vacancy notice — Commission’s ombudsman — Application for a stay in execution — No urgency)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/34

         Order of the President of the General Court of 17 February 2017 — Janssen-Cases v Commission
   (Case T-688/16 R)
   ((Interim proceedings - Civil service - Vacancy notice - Commission’s ombudsman - Application for a stay in execution - No urgency))
   (2017/C 121/50)
   Language of the case: French

      Parties

      Applicant: Mercedes Janssen-Cases (Brussels, Belgium) (represented by: J.-N. Louis and N. de Montigny, lawyers)

      Defendant: European Commission (represented by: G. Berscheid and C. Berardis-Kayser, Agents)

      Re:

   Application based on Articles 278 and 279 TFEU and seeking a stay in the execution of the Commission’s decision of 15 June 2016, appointing Mr X. as the Commission’s ombudsman, with effect as of 1 October 2016.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Judgment of the Court (Second Chamber) of 12 May 2005 in Case C-287/03: Commission of the European Communities v Kingdom of Belgium (Failure of Member State to fulfil obligations — Freedom to provide services — Customer loyalty programmes — Burden of proof)

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/2

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 12 May 2005
   in Case C-287/03: Commission of the European Communities v Kingdom of Belgium (1)

   (Failure of Member State to fulfil obligations - Freedom to provide services - Customer loyalty programmes - Burden of proof)
   (2005/C 205/03)
   Language of the case: French
   In Case C-287/03, Commission of the European Communities (Agents: M. Patakia and N.B. Rasmussen) v Kingdom of Belgium (Agents: E. Dominkovits, assisted by E. Balate, avocat) — action under Article 226 EC for failure to fulfil obligations, brought on 3 July 2003 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), R. Schintgen, P. Kūris and G. Arestis, Judges; P. Léger, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 12 May 2005, in which it:

               1.

               Dismisses the action;

               2.

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

      (1)  OJ C 200 of 23.08.2003.


title: Case F-125/11: Action brought on 28 November 2011 — ZZ v Commission

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/21

         Action brought on 28 November 2011 — ZZ v Commission
   (Case F-125/11)
   2012/C 65/38
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Rodrigues and A. Blot, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision not to admit the applicant to the assessment tests in competition EPSO/AST/111/10

      Form of order sought

   The applicant claims that the Civil Service Tribunal should:

               —

               annul the decision refusing the applicant the right to participate in the assessment tests in competition EPSO/AST/111/10 — Secretaries grade AST 1;

               —

               reintegrate the applicant into the recruitment process in that competition, if necessary, by organising new assessment tests;

               —

               in any event, request EPSO to take note of the information at its disposal regarding the results obtained by all of the candidates in tests (d) and (e);

               —

               in the alternative, if the main claim is not upheld, quod non, to pay the provisional sum, ex aequo et bono, of EUR 50 000;

               —

               in any event, pay the provisional sum, ex aequo and bono, of EUR 50 000 in non-material damages.


title: Joined Cases T-122/07 to T-124/07: Judgment of the General Court of 3 March 2011 — Siemens Österreich and Others v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Effects within the common market — Notion of continuous infringement — Duration of the infringement — Limitation period — Fines — Proportionality — Ceiling of 10 % of turnover — Joint and several liability for payment of a fine — Mitigating circumstances — Cooperation — Rights of the defence)

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/11

         Judgment of the General Court of 3 March 2011 — Siemens Österreich and Others v Commission
   (Joined Cases T-122/07 to T-124/07) (1)

   (Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Effects within the common market - Notion of continuous infringement - Duration of the infringement - Limitation period - Fines - Proportionality - Ceiling of 10 % of turnover - Joint and several liability for payment of a fine - Mitigating circumstances - Cooperation - Rights of the defence)
   2011/C 113/21
   Language of the case: German

      Parties

      Applicants: Siemens AG Österreich (Vienna, Austria) (Case T-122/07); VA Tech Transmission & Distribution GmbH & Co. KEG (Vienna) (Case T-122/07); Siemens Transmission & Distribution Ltd (Manchester, United Kingdom) (Case T-123/07); Siemens Transmission & Distribution SA (Grenoble, France) (Case T-124/07); and Nuova Magrini Galileo SpA (Bergamo, Italy) (Case T-124/07) (represented by: H. Wollmann and F. Urlesberger, lawyers)

      Defendant: European Commission (represented by: F. Arbault and O. Weber, and subsequently by X. Lewis and A. Antoniadis, and finally by A. Antoniadis and R. Sauer, Agents,)

      Re:

   Partial annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding pursuant to Article 81 EC and Article 53 EEA (Case COMP/F/38.899 — Gas-isolated switchgear), and in the alternative, an application for a reduction of the fine imposed on the applicants.

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 1(m), (p), (q), (r) and (t) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear), in so far as the Commission found therein an infringement on the part of Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission & Distribution Ltd, Siemens Transmission & Distribution SA and Nuova Magrini Galileo SpA, for the period from 1 April to 30 June 2002;

               2.

               Annuls Article 2(j), (k) and (l) of Decision C(2006) 6762 final;

               3.

               Imposes the following fines for the infringements found in Article 1(m), (p), (q), (r) and (t) of Decision C(2006) 6762 final:

                           —

                           Siemens Transmission & Distribution SA and Nuova Magrini Galileo, jointly and severally with Schneider Electric SA: EUR 8 100 000;

                           —

                           Siemens Transmission & Distribution Ltd, jointly and severally with Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission & Distribution SA and Nuova Magrini Galileo: EUR 10 350 000;

                           —

                           Siemens Transmission & Distribution Ltd, jointly and severally liable with Siemens AG Österreich and VA Tech Transmission & Distribution GmbH & Co. KEG: EUR 2 250 000;

                           —

                           Siemens Transmission & Distribution Ltd: EUR 9 450 000;

               4.

               Dismisses the remainder of the actions;

               5.

               In Case T-122/07, orders the European Commission to pay one tenth of the costs incurred by Siemens AG Österreich and VA Tech Transmission & Distribution GmbH & Co. KEG and one tenth of its own costs, and orders Siemens AG Österreich and VA Tech Transmission & Distribution GmbH & Co. KEG to pay nine tenths of their own costs and nine tenths of the costs incurred by the Commission;

               6.

               In Case T-123/07, orders the Commission to pay one tenth of the costs incurred by Siemens Transmission & Distribution Ltd and one tenth of its own costs, and orders Siemens Transmission & Distribution Ltd to pay nine tenths of their own costs and nine tenths of the costs incurred by the Commission;

               7.

               In Case T-124/07, orders the Commission to pay one fifth of the costs incurred by Siemens Transmission & Distribution SA and Nuova Magrini Galileo and one fifth of its own costs, and orders Siemens Transmission & Distribution SA and Nuova Magrini Galileo to pay four fifths of their own costs and four fifths of the costs incurred by the Commission.

      (1)  OJ C 140, 23.6.2007.


title: Case T-45/06: Action brought on  13 February 2006  — Reliance Industries v Council and Commission

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/38

         Action brought on 13 February 2006 — Reliance Industries v Council and Commission
   (Case T-45/06)
   (2006/C 86/76)
   Language of the case: English
   Parties

      Applicant: Reliance Industries Ltd (Bombay, India) [represented by: I. MacVay, S. Ahmed, Solicitors]

      Defendants: Council of the European Union and Commission of the European Communities
   Form of order sought

               —

               Annul the Commission's decisions, dated 1 December 2005, giving notice of an expiry review of the countervailing measures applicable to imports of certain bottle grade polyethylene terephthalate (‘PET’) originating in, inter alia, India, and of initiation of an expiry review of the anti-dumping measures applicable to imports of certain PET originating in India, Indonesia, the Republic of Korea, Malaysia, Taiwan and Thailand and a partial interim review of the anti-dumping measures applicable to imports of certain PET originating in the Republic of Korea and Taiwan (1);

               —

               if the Court considers it to be necessary or appropriate, annul Council Regulation (EC) No. 2603/2000, Council Regulation (EC) No. 2604/2000 and Commission Decision No. 2000/745/EC, in so far as they may purport to extend to the applicant in the period after 1 December 2005; and

               —

               if, but only if, and only to the extent that the Court may find, contrary to the applicant's case, that they differ in their true construction from the terms of Article 11.3 of the World Trade Organisation (‘WTO’) Dumping Agreement and/or Article 21.3 of the WTO Anti-Subsidies Agreement, annul Article 11(3) of Council Regulation (EC) No. 384/96 (‘the basic anti-dumping regulation’) and Article 18(1) of Council Regulation (EC) No. 2026/97 (‘the basic anti-subsidy regulation’);

               —

               order that the defendants meet the applicant's costs of these proceedings.

         Pleas in law and main arguments
   By the two contested decisions the Commission decided to initiate an expiry review with regard to Council Regulation No. 2603/2000 of 27 November 2000 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain PET originating in India, Malaysia and Thailand and terminating the anti-subsidy proceeding concerning imports of certain PET originating in Indonesia, the Republic of Korea and Taiwan (2) and Council Regulation (EC) No 2604/2000 of 27 November 2000 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain PET originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand (3), as well as Commission Decision No. 2000/745/EC accepting undertakings offered in connection with the above anti-dumping and anti-subsidy proceedings (4). By virtue of Articles 11(2) of the basic anti-dumping regulation and 18(1) of the basic anti-subsidy regulation, the effect of these notices of initiation, if given in time, would be that the relevant measures remain in force pending the outcome of the review.
   In support of its application the applicant submits that there has been no valid initiation of an expiry review so that the measures and undertaking at issue expired, in accordance with their terms, on 1 December 2005. The applicant argues that the notices were published on the same day as that on which the measures expired (1 December) and that, therefore, an expiry review was not initiated before the date of expiry, as required by WTO rules. In this respect, the applicant considers that the basic regulations must be interpreted in accordance with WTO agreements and that, in any case, any ambiguity in the basic regulations must be resolved in its favour, in accordance with general principles of Community law. The applicant further contends that if the basic regulations could not be interpreted in the manner it suggests, then those provisions would themselves be contrary to WTO rules and therefore invalid to this extent.

      (1)  OJ C 304, 1.12.2005 p. 4 and p. 9

      (2)  OJ L 301, 30.11.2000 p. 1

      (3)  OJ L 301, 30.11.2000 p. 21

      (4)  OJ L 301, 30.11.2000 p. 88


title: Judgment of the Court of First Instance of 11 May 2005 in Joined Cases T-160/02 to T-162/02, Naipes Heraclio Fournier, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Proceedings in relation to invalidity — Article 51(1)(a) of Regulation (EC) No 40/94 — Figurative mark comprising the representation of a sword in a pack of cards — Figurative mark comprising the representation of a knight of clubs in a pack of cards — Figurative mark comprising the representation of a king of swords in a pack of cards — Absolute grounds for refusal — Article 7(1)(b) and (c) of Regulation No 40/94)

text:
               9.7.2005

               EN

               Official Journal of the European Union

               C 171/13

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 11 May 2005
   in Joined Cases T-160/02 to T-162/02, Naipes Heraclio Fournier, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Proceedings in relation to invalidity - Article 51(1)(a) of Regulation (EC) No 40/94 - Figurative mark comprising the representation of a sword in a pack of cards - Figurative mark comprising the representation of a knight of clubs in a pack of cards - Figurative mark comprising the representation of a king of swords in a pack of cards - Absolute grounds for refusal - Article 7(1)(b) and (c) of Regulation No 40/94)
   (2005/C 171/22)
   Language of the case: Spanish
   In Joined Cases T-160/02 to T-162/02: Naipes Heraclio Fournier, SA, established in Vitoria (Spain), represented by E. Armijo Chávarri, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. Crespo Carrillo, and subsequently by O. Montalto and I. de Medrano Caballero), the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, being France Cartes SAS, established in Saint Max (France), represented by C. de Haas, lawyer — ACTION brought against three decisions of the Second Board of Appeal of OHIM of 28 February 2002 (Cases R 771/2000 2, R 770/2000-2 and R 766/2000 2), relating to invalidity proceedings between Naipes Heraclio Fournier, SA, and France Cartes SAS, — the Court of First Instance (Third Chamber), composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 11 May 2005, in which it:

               1.

               Dismisses the applications;

               2.

               Dismisses the intervener's claim that the applicant be ordered to pay the costs as inadmissible in respect of the costs incurred before the Cancellation Division;

               3.

               Orders the applicant to pay the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and the remainder of the intervener's costs;

               4.

               Dismisses the remainder of the intervener's claims.

      (1)  OJ C 180, 27.7.2002.


title: Joined Cases C-196/16 and C-197/16: Judgment of the Court (First Chamber) of 26 July 2017 (requests for a preliminary ruling from the Tribunale amministrativo regionale per le Marche — Italy) — Comune di Corridonia (C-196/16), Comune di Loro Piceno (C-197/16) and Others v Provincia di Macerata, Provincia di Macerata Settore 10 — Ambiente (Reference for a preliminary ruling — Environment — Directive 85/337/EEC — Directive 2011/92/EU — Possibility of carrying out, a posteriori, an environmental impact assessment of an operational plant for the production of energy from biogas with a view to obtaining a new consent)

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/11

         Judgment of the Court (First Chamber) of 26 July 2017 (requests for a preliminary ruling from the Tribunale amministrativo regionale per le Marche — Italy) — Comune di Corridonia (C-196/16), Comune di Loro Piceno (C-197/16) and Others v Provincia di Macerata, Provincia di Macerata Settore 10 — Ambiente
   (Joined Cases C-196/16 and C-197/16) (1)

   ((Reference for a preliminary ruling - Environment - Directive 85/337/EEC - Directive 2011/92/EU - Possibility of carrying out, a posteriori, an environmental impact assessment of an operational plant for the production of energy from biogas with a view to obtaining a new consent))
   (2017/C 309/14)
   Language of the cases: Italian

      Referring court

   Tribunale amministrativo regionale per le Marche

      Parties to the main proceedings

      Applicants: Comune di Corridonia (C-196/16), Comune di Loro Piceno (C-197/16), Marcello Bartolini (C-197/16), Filippo Bruè (C-197/16), Sergio Forti (C-197/16), Stefano Piatti (C-197/16), Gaetano Silvetti (C-197/16), Gianfranco Silvetti (C-197/16), Rocco Tirabasso (C-197/16), Sante Vagni (C-197/16), Albergo Ristorante Le Grazie Sas di Forti Sergio & Co. (C-197/16), Suolificio Elefante Srl (C-197/16), Suolificio Roxy Srl (C-197/16), Aldo Alessandrini (C-197/16)

      Defendants: Provincia di Macerata, Provincia di Macerata Settore 10 — Ambiente

      Intervening parties: VBIO1 Società Agricola Srl (C-196/16), Regione Marche, Agenzia Regionale per la Protezione Ambientale delle Marche — (ARPAM) — Dipartimento Provinciale di Macerata, ARPAM, VBIO2 Società Agricola Srl (C-197/16), Azienda Sanitaria Unica Regionale — Marche (ASUR Marche) (C-197/16), ASUR Marche — Area Vasta 3 (C-197/16), Comune di Colmurano (C-197/16), Comune di Loro Piceno (C-197/16)

      Operative part of the judgment

   In the event of failure to carry out an environmental impact assessment required under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009, EU law, on the one hand, requires Member States to nullify the unlawful consequences of that failure and, on the other hand, does not preclude regularisation through the conducting of an impact assessment, after the plant concerned has been constructed and has entered into operation, on condition that:

               —

               national rules allowing for that regularisation do not provide the parties concerned with an opportunity to circumvent the rules of EU law or to dispense with applying them, and

               —

               an assessment carried out for regularisation purposes is not conducted solely in respect of the plant’s future environmental impact, but must also take into account its environmental impact from the time of its completion.

      (1)  OJ C 251, 11.7.2016.


title: Judgment of the Court of 21 October 2003 In Joined Cases C-261/01 and C-262/01 (Reference for a preliminary ruling from the Hof van Beroep te Antwerpen): Belgische Staat v Eugene Van Calster, Felix Cleeren (C-261/01) and between Belgische Staat and Openbaar Slachthuis NV (C-262/01) (Aid financed by parafiscal charges — Compulsory charges to finance a fund for animal health and livestock production — Retroactive effect of the charges — Validity of a Commission decision concerning State aid — Powers of the Commission)

text:
13.12.2003               EN                           Official Journal of the European Union                                                C 304/3
2.    Refers the case back to the Court of First Instance;                    2.    The connections which must link films in order that they can
                                                                                come within the exception laid down for ‘series’ by Article 11(3)
3.    Reserves the costs.                                                           of Directive 89/552 must relate to the content of the films
                                                                                concerned, such as, for example, the development of the same
                                                                                story from one episode to another or the reappearance of one or
(1) OJ C 200 of 14.07.2001.
                                                                                more characters in different episodes.
                                                                              (1) OJ C 289 of 13.10.2001.
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)
                        of 23 October 2003
                                                                                JUDGMENT OF THE COURT
in Case C-245/01 (Reference for a preliminary ruling from
the Niedersächsisches Oberverwaltungsgericht): RTL
Television GmbH v Niedersächsische Landesmedienan-                                                   of 21 October 2003
                 stalt für privaten Rundfunk (1)
                                                                              In Joined Cases C-261/01 and C-262/01 (Reference for a
(Directive 89/552/EEC — Article 11(3) — Television broad-                     preliminary ruling from the Hof van Beroep te Antwer-
casting — Television advertising — Advertising breaks in                      pen): Belgische Staat v Eugene Van Calster, Felix Cleeren
          audiovisual works — Definition of ‘series’)                         (C-261/01) and between Belgische Staat and Openbaar
                                                                                Slachthuis NV (C-262/01) (1)
                           (2003/C 304/04)
                                                                              (Aid financed by parafiscal charges — Compulsory charges
                   (Language of the case: German)                             to finance a fund for animal health and livestock production
                                                                              — Retroactive effect of the charges — Validity of a
(Provisional translation; the definitive translation will be published        Commission decision concerning State aid — Powers of the
                    in the European Court Reports)                                                        Commission)
                                                                                (2003/C 304/05)
In Case C-245/01: Reference to the Court under Article 234
EC by the Niedersächsisches Oberverwaltungsgericht (Ger-
many) for a preliminary ruling in the proceedings pending                                         (Language of the case: Dutch)
before that court between RTL Television GmbH and Nieder-
sächsische Landesmedienanstalt für privaten Rundfunk, on the
interpretation of Article 11(3) of Council Directive 89/552/                  (Provisional translation; the definitive translation will be published
EEC of 3 October 1989 on the coordination of certain                                             in the European Court Reports)
provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of television
broadcasting activities (OJ 1989 L 298, p. 23), as amended by
Directive 97/36/EC of the European Parliament and of the                      In Joined Cases C-261/01 and C-262/01: Reference to the
Council of 30 June 1997 (OJ 1997 L 202, p. 60), the                           Court under Article 234 EC by the Hof van Beroep te
Court (Fifth Chamber), composed of: C.W.A. Timmermans                         Antwerpen (Belgium) for a preliminary ruling in the proceed-
(Rapporteur), President of the Fourth Chamber, acting for the                 ings pending before that court between Belgische Staat and
President of the Fifth Chamber, D.A.O. Edward and P. Jann,                    Eugene Van Calster, Felix Cleeren (C-261/01) and between
Judges; F.G. Jacobs, Advocate General; M.-F. Contet, Principal                Belgische Staat and Openbaar Slachthuis NV (C-262/01), on
Administrator, for the Registrar, has given a judgment on                     the interpretation of Community law, in particular of
23 October 2003, in which it has ruled:                                       Article 93 of the EC Treaty (now Article 88 EC) and Article 173
                                                                              of the EC Treaty (now, after amendment, Article 230 EC) and
1.    Films which have been made for television and which provide,            of the Commission Decision of 9 August 1996 relating to aid
      from their conception, for breaks for the insertion of advertising      measure No N 366/96, the Court, composed of: V. Skouris,
      are covered by the term ‘films made for television’ in                  President, P. Jann, C.W.A. Timmermans (Rapporteur), C. Gul-
      Article 11(3) of Council Directive 89/552/EEC of 3 October              mann, J.N. Cunha Rodrigues and A. Rosas (Presidents of
      1989 on the coordination of certain provisions laid down by             Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
      law, regulation or administrative action in Member States               R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges;
      concerning the pursuit of television broadcasting activities, as        F.G. Jacobs, Advocate General; H. von Holstein, Deputy
      amended by Directive 97/36/EC of the European Parliament                Registrar, has given a judgment on 21 October 2003, in which
      and of the Council of 30 June 1997.                                     it has ruled:
 ---pagebreak--- C 304/4                  EN                          Official Journal of the European Union                                            13.12.2003
1.    Article 93(3) of the EC Treaty (now Article 88(3) EC) must be          of 19 September 1980 on the development of the Association,
      interpreted as precluding, in circumstances such as those in           adopted by the Association Council set up by the Association
      the main proceedings, the levying of charges which finance             Agreement between the European Economic Community and
      specifically an aid scheme that has been declared compatible           Turkey, the Court, composed of: V. Skouris, President, P. Jann,
      with the common market by a Commission decision, in so far             C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
      as those charges are imposed retroactively in respect of a period      A. Rosas (Presidents of Chambers), D.A.O. Edward, A. La
      prior to the date of that decision.                                    Pergola, J.-P. Puissochet, R. Schintgen (Rapporteur), F. Macken,
                                                                             N. Colneric and S. von Bahr, Judges; J. Mischo, Advocate
2.    The Commission Decision of 9 August 1996 relating to aid               General; H.A. Rühl, Principal Administrator, for the Registrar,
      measure No N 366/96 does not approve the retroactive effect            has given a judgment on 21 October 2003, in which it has
      of the Law of 23 March 1998 on the establishment of a                  ruled:
      budgetary fund for the health and quality of animals and
      animal products.
(1) OJ C 303 of 27.10.2001.
                                                                             —    Article 41(1) of the Additional Protocol, signed at Brussels on
                                                                                23 November 1970 and concluded, approved and confirmed
                                                                                on behalf of the Community by Council Regulation (EEC)
                                                                                No 2760/72 of 19 December 1972, and of Article 13 of
                                                                                Decision No 1/80 of 19 September 1980 on the development
                                                                                of the Association, adopted by the Association Council set up
                                                                                by the Association Agreement between the European Economic
                                                                                Community and Turkey, must be interpreted as meaning that:
                  JUDGMENT OF THE COURT                                           those two provisions have direct effect in the Member States so
                                                                                that Turkish nationals to whom they apply are entitled to rely
                                                                                on them before the national courts to prevent the application of
                        of 21 October 2003                                        inconsistent rules of national law;
in Joined Cases C-317/01 and C-369/01 (Reference for a
preliminary ruling from the Bundessozialgericht): Eran
Abatay and Others (C-317/01) Nadi Sahin (C-369/01) v
                    Bundesanstalt für Arbeit (1)                             —    Article 41(1) and Article 13 prohibit generally the introduction
                                                                                of new national restrictions on the right of establishment and
                                                                                the freedom to provide services and freedom of movement for
(EEC-Turkey Association — Interpretation of Article 41(1)                         workers from the date of the entry into force in the host Member
of the Additional Protocol and Article 13 of Decision No 1/                       State of the legal measure of which those articles are part;
80 — Abolition of restrictions on the freedom of movement
for workers, on the freedom of establishment and on the
freedom to provide services — ‘Standstill’ clauses — Direct
effect — Scope — Legislation of a Member State requiring a
    work permit in the international road haulage sector)                    —    Article 13 of Decision No 1/80 is applicable to Turkish
                                                                                nationals only if their residence in the territory of the host
                                                                                Member State is not only lawful but for a sufficient period to
                           (2003/C 304/06)                                        allow them progressively to become integrated there;
                    (Language of the case: German)
                                                                             —    in circumstances such as those in the cases in the main
(Provisional translation; the definitive translation will be published
                                                                                proceedings, Article 41(1) of the Additional Protocol is
                    in the European Court Reports)
                                                                                applicable to international road haulage of goods originating
                                                                                in Turkey, where those services are carried out in the territory of
                                                                                a Member State;
In Joined Cases C-317/01 and C-369/01: Reference to the
Court under Article 234 EC by the Bundessozialgericht
(Germany) for a preliminary ruling in the proceedings pending
before that court between Eran Abatay and Others (C-317/01)                  —    the protection of Article 41(1) can be relied on not only by an
Nadi Sahin (C-369/01) and Bundesanstalt für Arbeit, on the                        undertaking established in Turkey which performs services in a
interpretation of Article 41(1) of the Additional Protocol                        Member State but also by the employees of such an undertaking
signed at Brussels on 23 November 1970 and concluded,                             to preclude a new restriction on the freedom to provide services;
approved and confirmed on behalf of the Community by                              however, it may not be relied on to that end by an undertaking
Council Regulation (EEC) No 2760/72 of 19 December 1972                           established in a Member State where those using the services
(JO 1972 L 293, p. 1) and of Article 13 of Decision No 1/80                       are established in the same Member State;


title: Case C-239/14: Request for a preliminary ruling from the Tribunal du travail de Liège (Belgium) lodged on 14 May 2014  — Abdoulaye Amadou Tall v Centre public d’action sociale de Huy (CPAS de Huy)

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/10

         Request for a preliminary ruling from the Tribunal du travail de Liège (Belgium) lodged on 14 May 2014 — Abdoulaye Amadou Tall v Centre public d’action sociale de Huy (CPAS de Huy)
   (Case C-239/14)
   2014/C 223/14
   Language of the case: French

      Referring court

   Tribunal du travail de Liège

      Parties to the main proceedings

      Applicant: Abdoulaye Amadou Tall

      Defendant: Centre public d’action sociale de Huy (CPAS de Huy)

      Question referred

   According to Article 39/1 of the Law of 15 December 1980 on entry to Belgian territory, residence, establishment and expulsion of foreign nationals read in conjunction with Articles 39/2(l), 3rd subparagraph, Article 39/76, Article 39/82(4), 2nd subparagraph (d) and 57/6/2 of the same law, only appeals seeking annulment and suspension due to extreme urgency may be brought against a decision refusing to consider a multiple asylum claim. Given that in such an appeal the court does not have full jurisdiction to determine issues of fact and law, the appeal does not have suspensory effect and that the applicant does not have the right of residence nor to material assistance while it is under consideration, are such appeals compatible with the requirements of Article 47 of the Charter of Fundamental Rights of the European Union and Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States (1) for granting and withdrawing refugee status which lay down the right to an effective remedy?

      (1)  OJ 2005 L 326, p. 13.


title: Appeal brought on 12 February 1997 by the Commission of the European Communities against the judgment delivered on 12 December 1996 by the Second Chamber of the Court of First Instance of the European Communities in Case T-33/95 between Maria Lidia Lozano Palacios and the Commission of the European Communities (Case C-62/97 P)

text:
No C 108/ 14          EN                     Official Journal of the European Communities                                       5 . 4 . 97
Reference for a preliminary ruling from Retten i Aalborg,               Commission of the European Communities was brought
by a letter of 7 February 1997 in the case of Foreningen af             before the Court of Justice of the European Communities
danske Videogramdistributorer, acting for Egmont Film                   on 12 February 1997 by the Commission of the European
A/S, Buena Vista Home Entertainment A/S, Scanbox                        Communities, represented by Julian Currall, acting as
Danmark A/S, Metronome Video A/S, Polygram Records                      Agent, and Denis Waelbroeck, acting as advocate, with an
A/S, Nordisk Film Video A/S, Irish Video A/S and Warner                 address for service in Luxembourg at the office of C.
Home Video Inc., v. Laserdisken, in the person of Hans                  Gomez de la Cruz, of its Legal Service, Wagner Centre .
Kristian Pedersen, Interveners: Sammenslutningen af Dan
ske Filminstruktorer, Michael Viuf Christiansen, Pioneer                The appellant claims that the Court should:
Electronics Denmark A/S and Videoforhandler Ove Jensen
                                                                        — annul the judgment delivered on 12 December 1996
                         ( Case C-61 /97)                                      by the Court of First Instance of the European
                           ( 97/C 108/25 )                                     Communities in Case T-33/95, Maria Lidia Lozano
                                                                               Palacios v. Commission of the European Communities,
Reference has been made to the Court of Justice of the                         inasmuch as it was held in that judgment that the
European Communities by letter of 7 February 1997 from                         respondent to the appeal was entitled to the
Retten i Aalborg (Aalborg Court), which was received at                        installation allowance provided for by the first
the Court Registry on 12 February 1997, for a preliminary                      subparagraph of Article 5 ( 1 ) of Annex VII to the Staff
ruling in the case between Foreningen af danske Video                         Regulations merely because she was in receipt of the
gramdistributorer ( Association            of Danish Video                     expatriation allowance,
Distributors), acting for Egmont Film A/S and Others, and
                                                                        — make an appropriate order as to costs .
Laserdisken, in the person of Hans Kristian Pedersen,
Interveners: Sammenslutningen af Danske Filminstruktorer                Pleas in law and main arguments adduced in support:
(Union of Danish Film Directors ) and Others on the
following questions :                                                   The Court of First Instance erred in law in holding that
                                                                        the mere fact that the respondent to the appeal was
Do Article 30 of the EC Treaty, in conjunction with                     entitled to an expatriation allowance — because,
Article 36 , or Articles 85 to 86 preclude a person to                  technically, she fulfilled the conditions laid down in
whom the holder of the exclusive rights to a film has                   Article 4 ( 1 ) ( a ) of Annex VII to the Staff Regulations —
transferred an exclusive manufacturing and distribution                 meant that she satisfied, de facto, the conditions rendering
 right in respect of copies of the film in one Member State             her eligible for the installation allowance . The
 from giving consent to the rental of his own releases while            Commission considers that it is clear from the wording of
 at the same time preventing the rental of imported releases            Article 71 of the Staff Regulations, from the heading
 which have been placed on the market in another Member                 under which that article appears in the Staff Regulations
 State, where the holder of exclusive manufacturing and                 and from the title of Section 3 of Annex VII, of which the
 distribution rights in copies of the film has transferred               first subparagraph of Article 5 ( 1 ) forms part, that, like
 ownership of copies with tacit acceptance that the copies              the other allowances covered by Section 3 , the installation
 will be rented out in that latter Member State ?
                                                                         allowance is not a sum automatically added to the salary
                                                                         of the person concerned but is intended to cover expenses
 In view of the fact that Council Directive 92/ 100/EEC ( ] )            actually incurred or which may be incurred. The effect
 of 19 November 1992 on rental right and lending right                   and purpose of the installation allowance also militate in
 and on certain rights relating to copyright in the field of             favour of that interpretation .
 intellectual property has entered into force, the same
 question is repeated on the basis that the Directive is
 applicable to the reply.
  (') OJ No L 346, 27. 11 . 1992, p. 61 .                                Reference for a preliminary ruling by the Hoge Raad der
                                                                         Nederlanden, by judgment of that court of 7 February
                                                                          1997 in the case of 1 . Bayerische Motorenwerke AG and
                                                                                2 . BMW Nederland BV v. Ronald Karel Deenik
                                                                                ( Case C-63/97 )
  Appeal brought on 12 February 1997 by the Commission
  of the European Communities against the judgment                                                   ( 97/C 108/27)
  delivered on 12 December 1996 by the Second Chamber
  of the Court of First Instance of the European                          Reference has been made to the Court of Justice of the
  Communities     in   Case T-33/95        between Maria Lidia            European Communities by judgment of the Hoge Raad
  Lozano Palacios and the Commission of the European                      der Nederlanden ( Supreme Court of the Netherlands ), of
                              Communities                                 7 February 1997, which was received at the Court
                         ( Case C-62/97 P                                 Registry on 13 February 1997, for a preliminary ruling in
                                                                          the case of 1 . Bayerische Motorenwerke AG and 2 . BMW
                             ( 97/C 108/26 )
                                                                          Nederland BV v. Ronald Karel Deenik on the following
                                                                          questions :
   An appeal against the judgment delivered on 12 December
   1996 by the Second Chamber of the Court of First                       ( a ) In view of the fact that, with regard to the rights
   Instance of the European Communities in Case T-33/95                         associated with a trade mark, Directive 89/104/EEC ( J )
   between    Maria     Lidia      Lozano     Palacios   and    the              contains a transitional legal provision only for the


title: Case C-277/03: Action brought on 25 June 2003 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

text:
C 200/20              EN                         Official Journal of the European Union                                        23.8.2003
Action brought on 25 June 2003 by the Commission of the                  —     order the defendant to pay EUR 52,91 (fifty two Euros
European Communities against the United Kingdom of                             and ninety one Cents) per day by way of interest from
              Great Britain and Northern Ireland                               1 May 2003 until the date on which the debt is repaid in
                                                                               full;
                         (Case C-277/03)
                                                                         —     order the defendant to pay the costs of the present
                         (2003/C 200/34)                                       action.
An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of              Pleas in law and main arguments
the European Communities on 25 June 2003 by the Commis-
sion of the European Communities, represented by Mr Xavier               On the basis of Article 3(1)(a) of the general conditions
Lewis and Mr Minas Konstantinidis, acting as agents, with an             (annex II of the contract) the defendant was obliged to
address for service in Luxembourg.                                       distribute the initial advance among the contractors and/or
                                                                         the RTD Performers within thirty days of receipt of the funds.
The Applicant claims that the Court should:                              The defendant did not do so and withdrew from the project.
                                                                         Under the contract all payments were to be treated as advances
1)    declare that, by failing to adopt the laws, regulations and        until the last project deliverable was approved. The defendant
      administrative provisions necessary to comply with Direc-          is therefore obliged to reimburse the advance payment to the
      tive 2000/53/EC of the European Parliament and of the              Commission, subject to proof by the defendant of any costs
      Council of 18 September 2000 on end-of life vehicles (OJ           incurred by it.
      L 269, 21.10.2000, p. 34) the United Kingdom of Great
      Britain and Northern Ireland has failed to fulfil its obliga-      The defendant had until 31 August 2002 to submit a claim for
      tions under the Directive and in particular its                    costs, together with the necessary technical report in support
      Article 10 (1) and under the Treaty establishing the               of such a claim. The defendant did not do so and therefore has
      European Community.                                                forfeited its right to make a claim for any costs incurred in
                                                                         relation to the project and it thus has no right to claim a
2)    order the United Kingdom of Great Britain and Northern             deduction from the advance payment in respect of such a
      Ireland to pay the costs.                                          claim.
Pleas in law and main arguments
The period within which the directive had to be transposed
expired on 21 April 2002.
                                                                         Action brought on 3 July 2003 by the Commission of the
                                                                           European Communities against the Kingdom of Belgium
                                                                                (Case C-287/03)
Action brought on 26 June 2003 by the Commission of                                              (2003/C 200/36)
the European Communities against Implants (Interna-
                             tional) Ltd
                                                                         An action against the Kingdom of Belgium was brought before
                         (Case C-279/03)                                 the Court of Justice of the European Communities on 3 July
                                                                         2003 by the Commission of the European Communities,
                         (2003/C 200/35)                                 represented by M. Patakia and N.B. Rasmussen, acting as
                                                                         Agents, with an address for service in Luxembourg.
An action against Implants (International) Ltd was brought               The Commission of the European Communities claims that the
before the Court of Justice of the European Communities on               Court should:
26 June 2003 by the Commission of the European Commu-
nities, represented by R. Lyal and C. Giolito, acting as agents,         1.    declare that, by applying in a discriminatory and dispro-
with an address for service in Luxembourg.                                     portionate manner the conditions of ‘similarity’ and ‘sole
                                                                               vendor’ as between products and services acquired by a
The Applicant claims that the Court should:                                    consumer, on the one hand, and products and services
                                                                               offered free of charge or at reduced prices in the context
—     order the defendant to pay the applicant the sum of                      of a customer loyalty programme, on the other hand, as a
      EUR 294 958,51 (two hundred and ninety four thousand,                    prior condition for the operation of such a programme as
      nine hundred and fifty eight Euros and fifty one Cents),                 a cross-border provision of services between undertakings,
      corresponding to EUR 284 000 as the amount due and                       the Kingdom of Belgium has failed to fulfil its obligations
      EUR 10 958,51 as late payment interest;                                  under Article 49 of the EC Treaty;


title: Case C-368/14 P: Appeal brought on 30 July 2014 by Compagnie des bateaux mouches SA against the judgment of the General Court (Eighth Chamber) delivered on 21 May 2014 in Case T-553/12 Compagnie des bateaux mouches SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/17

         Appeal brought on 30 July 2014 by Compagnie des bateaux mouches SA against the judgment of the General Court (Eighth Chamber) delivered on 21 May 2014 in Case T-553/12 Compagnie des bateaux mouches SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-368/14 P)
   (2015/C 065/25)
   Language of the case: French

      Parties

      Appellant: Compagnie des bateaux mouches SA (represented by: E. Piwnica, lawyer)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   By order of the Court (Sixth Chamber) of 11 December 2014, the Court dismissed the appeal and ordered the Compagnie des bateaux mouches SA to bear its own costs.


title: Case T-375/14: Action brought on 30 May 2014  — Al Naggar v Council

text:
               28.7.2014

               EN

               Official Journal of the European Union

               C 245/25

         Action brought on 30 May 2014 — Al Naggar v Council
   (Case T-375/14)
   2014/C 245/34
   Language of the case: French

      Parties

      Applicant: Shahinaz Abdel Azizabdel Wahab Al Naggar (Cairo, Egypt) (represented by: J.-F. Bellis, R. Luff, A. Bailleux, Q. Declève, P. Vovan, S. Rowe and A. Yehia, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the action admissible and well-founded;

               —

               annul Decision 2014/153, in so far as it extends until 22 March 2015 the restrictive measures directed against the applicant in Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt;

               —

               order the Council of the European Union to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of Article 1 of Decision 2011/172 (1), in that the applicant herself was not found to be, nor even identified as, responsible for misappropriation of State funds, but is subject to restrictive measures merely because she is the spouse of Mr Ahmed Abdelaziz Ezz (‘Mr Ezz’).

               2.

               Second plea in law, alleging infringement of Article 6 TEU, read in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, in that Decision 2014/153 (2) is wrongly based on the irrebuttable presumption that there is no risk of infringement of the applicant’s fundamental rights in the proceedings brought against her in Egypt.

               3.

               Third plea in law, alleging infringement of Articles 7, 16 and 17 of the Charter of Fundamental Rights of the European Union, in that Decision 2014/153 creates disproportionate restrictions on the applicant’s right to privacy, right to property and freedom to conduct a business.

               4.

               Fourth plea in law, alleging infringement of Articles 41, 47 and 48 of the Charter of Fundamental Rights of the European Union, in that Decision 2014/153 does not provide adequate and sufficient reasons and was adopted in breach of the applicant’s right to be heard.

               5.

               Fifth plea in law, alleging a manifest error of assessment, in that (i) the applicant was never subject to any judicial investigation for misappropriation of State funds; (ii) the behaviour of Mr Ezz constitutes normal activities in the course of trade and therefore cannot be regarded as misappropriation of State funds; and (iii) at the time of the adoption of Decision 2014/153, the Council did not take account of the fact that, three years after the adoption of the first measures, Mr Ezz’s legal position remains, at the very least, uncertain.

      (1)  Council Decision 2011/172/CFSP of 21 March 2011, concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63).

      (2)  Council Decision 2014/153/CFSP of 20 March 2014, amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 85, p. 9).


title: Case C-493/99: Action brought on 21 December 1999 by the Commission of the European Communities against the Federal Republic of Germany

text:
4.3.2000                 EN                   Official Journal of the European Communities                                       C 63/15
     attribute all of the measures in support of Stardust to the         Pleas in law and main arguments
     allegedly careless conduct of SBT and Altus prior to debt
     restructuring. This notion appears only in the contested            — Infringement of the freedom to provide
     decision and is none the less the key concept therein.                  services.
                                                                             (a) Bar to participation in a construction consortium: the
                                                                                provision in Paragraph 1(1), second sentence, of the
                                                                                Gesetz zur Regelung der gewerbsmässigen Arbeit-
                                                                                nehmerüberlassung (Law governing commercial
                                                                                deployment of employees) (‘the AÜG’), under which
                                                                                the secondment of employees to carry out work
Action brought on 21 December 1999 by the Commission                              does not, under specified circumstances, constitute a
of the European Communities against the Federal Repub-                            deployment of employees for which authorisation
                           lic of Germany                                         is required, is of considerable importance to the
                                                                                construction industry. However, since the exception is
                                                                                predicated on the condition that German collective
                          (Case C-493/99)                                         agreements within the same (German) economic sector
                                                                                apply to all members of a consortium, construction
                                                                                companies from other Member States can participate
                           (2000/C 63/28)                                         in a consortium only if they maintain a subsidiary
                                                                                in Germany with construction workers working in
An action against the Federal Republic of Germany was                             Germany and are thus able to be party to collective
brought before the Court of Justice of the European Communi-                      agreements. They cannot deploy employees from their
ties on 21 December 1999 by the Commission of the European                        place of establishment or their subsidiaries in other
Communities, represented by Jörn Sack, Legal Adviser, acting                      Member States to a consortium established in Ger-
as Agent, with an address for service in Luxembourg at the                        many, which normally takes the form of a private-law
office of Carlos Gómez de la Cruz, of the Commission’s Legal                     company, without the consortium thereby forfeiting
Service, Wagner Centre C 254, Kirchberg.                                          the possibility of invoking the abovementioned dero-
                                                                                gating provision, with the result that such employees
                                                                                would be unlawfully deployed. For that reason, under-
The applicant claims that the Court should:                                       takings from other Member States covered by non-Ger-
                                                                                man collective agreements within the same economic
(1) declare that the Federal Republic of Germany has failed to                    sector are not at all accepted in such consortia set up
     fulfil its obligations under Articles 43 EC and 49 EC, by                    or to be set up in Germany. To that extent they cannot
     providing through legislation that construction companies                    exercise the freedom to provide services guaranteed by
     established in other Member States may:                                      the EC Treaty.
     (a) provide transfrontier services on the German market                 (b) Exclusion from the deployment of employees among
          as part of a consortium (Arbeitsgemeinschaft) only if                   construction companies: the deployment of employees
          they have a registered office or at least a subsidiary in               for work normally carried out by workers has in
          Germany employing their own staff and have con-                         principle been unlawful within the construction indus-
          cluded a company-wide collective agreement for those                    try since 1 January 1998 under Paragraph 1b, first
          staff;                                                                  sentence, of the AÜG. The second sentence of that
                                                                                provision, however, permits this between firms in the
     (b) deploy workers on a transfrontier basis to other                         construction industry if they are covered by the same
          construction companies only if they have a registered                   framework and social-welfare collective agreements or
          office or at least a subsidiary in Germany employing                    are generally bound by such agreements. Undertakings
          their own staff and are, as members of a German                         (in the vast majority foreign undertakings) which do
          employers’ association, covered by a framework and                      not satisfy those conditions are thereby also precluded
          social-welfare collective agreement;                                    from providing so-called mutual assistance (Kollegen-
                                                                                hilfe) to German companies, or even to companies in
     (c) not establish a subsidiary in Germany which is recog-                    Germany belonging to their own commercial group.
          nised as a construction company if its staff is respon-
          sible exclusively for duties concerning administration,            Grounds of public safety and health can in the present case
          marketing, planning, supervision and/or wages and                  be discounted from the outset as a basis for justification
          salaries; in order to be so recognised, such a subsidiary          (Article 55 EC in conjunction with Article 46 EC). Even if
          must, within the labour area of Germany, employ                    one wished to consider the social order in general as
          workers who provide construction services accounting               constituting part of public policy of a Member State within
          for more than 50 % of the company’s total working                  the meaning of Article 46, the German measures cannot
          time;                                                              be justified on that basis either, since they are general in
                                                                             nature and do not in any wise focus on the question
(2) order the Federal Republic of Germany to pay the costs of                whether the wages and social provisions guaranteed to the
     the proceedings.                                                        employees may in fact point to ‘pay-related dumping’.
 ---pagebreak--- C 63/16                EN                   Official Journal of the European Communities                                       4.3.2000
— Infringement of the freedom of estab-                                Pleas in law and main arguments
    lishment.
                                                                       The Member States are required by the binding character of
                                                                       the third paragraph of Article 249 EC and of Article 10 EC (ex
    In view of the fact that in Germany only a company whose
                                                                       third paragraph of Article 189 and Article 5 of the EC Treaty)
    employees carry out construction work accounting for
                                                                       to adopt the measures needed to transpose directives into
    more than 50 % of the company’s total working time can
                                                                       national law before the expiry of the period laid down for that
    be treated as being a construction company, it makes little
                                                                       purpose and to communicate those measures immediately to
    sense for construction companies from other Member
                                                                       the Commission. That period expired on 21 November 1996
    States to establish separate subsidiaries in Germany
                                                                       without the Hellenic Republic having communicated to the
    employing exclusively commercial and technical staff (for
                                                                       Commission the provisions transposing the directive at issue
    instance, in order to secure or develop projects), since
                                                                       into national law.
    these are not in a position, should orders for work
    come in, to carry out the work through deployment of
    construction workers, from their other (foreign) subsidia-         (1) OJ L 319 of 12.12.1994, p. 14.
    ries or from the parent company. This also constitutes
    discriminatory treatment, inasmuch as German subsidiari-
    es of German construction undertakings continue to be
    treated as construction companies even if they do not
    themselves satisfy the 50 % rule.
                                                                       Action brought on 21 December 1999 by the Commission
                                                                       of the European Communities against the French Republic
                                                                                (Case C-495/99)
                                                                                (2000/C 63/30)
                                                                       An action against the French Republic was brought before the
Action brought on 21 December 1999 by the Commission                   Court of Justice on 21 December 1999 by the Commission of
of the European Communities against the Hellenic Repub-                the European Communities, represented by Peter Oliver, Legal
                                lic                                    Adviser, acting as Agent, with an address for service in
                                                                       Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
                                                                       Centre, Kirchberg.
                         (Case C-494/99)
                                                                       The applicant claims that the Court should:
                          (2000/C 63/29)
                                                                       1. declare that, by failing to adopt the laws, regulations
                                                                            and administrative provisions necessary to comply with
An action against the Hellenic Republic was brought before the              Council Directive 96/93/EC on the certification of animals
Court of Justice of the European Communities on 21 December                 and animal products (1), the French Republic has failed to
1999 by the Commission of the European Communities,                         comply with its obligations under that directive and under
represented by Maria Patakia, of its Legal Service, and Frank               the Treaty;
Benyon, Legal Adviser in its Legal Service, with an address for
service in Luxembourg at the office of Carlos Gómez de la             2. order the French Republic to pay the costs.
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                       Pleas in law and main arguments
The Commission claims that the Court should:
                                                                       The mandatory nature of the provisions of Articles 249 and
                                                                       10 EC is such as to oblige Member States to which directives
— declare that, by not adopting and communicating to the               are addressed to adopt the measures necessary in order to
    Commission within the time-limit laid down in the laws,            transpose those directives into their national legal order within
    regulations and administrative provisions necessary to             the time-limit prescribed therein. The time-limit fixed by
    comply fully with Council Directive 94/56/EC (1) of                Article 9 of Directive 96/93/EC expired on 1 January 1998
    21 November 1994 establishing the fundamental prin-                but France has not adopted the necessary measures.
    ciples governing the investigation of civil aviation accidents
    and incidents, the Hellenic Republic has failed to fulfil its
    obligations under the Treaty and that directive;                   (1) JO L 13 of 16 January 1997, p. 18.
— order the Hellenic Republic to pay the costs.


title: Case C-281/11: Action brought on 6 June 2011 — European Commission v Republic of Poland

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/15

         Action brought on 6 June 2011 — European Commission v Republic of Poland
   (Case C-281/11)
   2011/C 252/29
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: L. Pignataro-Nolin and M. Owsiany Hornung, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

               —

               declare that, by failing to transpose or transposing incorrectly Article 2(a), (b), (d), (e) and (f), Article 3(3), Article 4(3), Article 6, Article 7, Article 8, Article 9(1) and (2)(a), Article 10(3) and (4) and Article 18(1), second subparagraph, and (3) and (4) of, and the fourth indent of Part A, the first indent of Part B and the first indent of Part C of Annex V to, Directive 2009/41/EC of the European Parliament and of the Council of 6 May 2009 on the contained use of genetically modified micro-organisms, the Republic of Poland has failed to fulfil its obligations under that directive;

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   The Commission complains that the Republic of Poland has transposed incorrectly into Polish law the definitions of ‘micro-organism’, ‘genetically modified micro-organism’, ‘accident’ and ‘user’ contained respectively in Article 2(a), (b), (d) and (e) of Directive 2009/41. According to the Commission, an infringement is also constituted by the fact that the Polish legislation does not contain a definition of ‘notification’, a definition which appears in Article 2(f) of the directive.
   The Commission further maintains that Articles 3(3), 6, 7, 8, 9(1) and (2)(a) and 18(1), second subparagraph, and (3) and (4) of Directive 2009/41 and the first indent of Part B and the first indent of Part C of Annex V thereto have not been transposed into Polish law.
   According to the Commission, the transposition of Article 4(3) of Directive 2009/41 is incorrect because under Polish law the first class encompasses only activities of no risk whereas the directive also encompasses activities of negligible risk.
   The Commission also complains that the Republic of Poland has implemented Article 10(3) of Directive 2009/41 incorrectly by restricting the possibility of specifying additional conditions for the contained use of genetically modified organisms solely to the situation where it is called for by the need to protect human health or the environment, whereas Article 10(3) of Directive 2009/41 does not contain such a restriction.
   Furthermore, according to the Commission, Article 10(4) of Directive 2009/41 has been transposed into national law incorrectly because the latter introduces a 30-day period for which the directive does not provide.
   Finally, the Commission asserts that the Polish authorities have not fully transposed the fourth indent of Part A of Annex V to Directive 2009/41.


               25.10.2008

               EN

               Official Journal of the European Union

               C 272/2

         Election of the President of the Civil Service Tribunal
   (2008/C 272/02)
   On 24 September 2008, in accordance with Article 4(1) of the Annex to the Statute of the Court of Justice and with Article 6(1) of the Rules of Procedure, the Judges of the Tribunal elected Mr MAHONEY President of the Tribunal for the period from 6 October 2008 to 30 September 2011.


title: Case C-175/11: Judgment of the Court (Second Chamber) of 31 January 2013 (request for a preliminary ruling from the High Court of Ireland — Ireland) — H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General (Request for a preliminary ruling — Common European Asylum System — Application by a national of a third country seeking refugee status — Directive 2005/85/EC — Article 23 — Possibility of prioritising the processing of asylum applications — National procedure applying a prioritised procedure for the examination of applications by persons belonging to a certain category defined on the basis of nationality or country of origin — Right to an effective judicial remedy — Article 39 of Directive 2005/85 — Concept of ‘court or tribunal’ within the meaning of that article)

text:
               23.3.2013

               EN

               Official Journal of the European Union

               C 86/3

         Judgment of the Court (Second Chamber) of 31 January 2013 (request for a preliminary ruling from the High Court of Ireland — Ireland) — H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General
   (Case C-175/11) (1)

   (Request for a preliminary ruling - Common European Asylum System - Application by a national of a third country seeking refugee status - Directive 2005/85/EC - Article 23 - Possibility of prioritising the processing of asylum applications - National procedure applying a prioritised procedure for the examination of applications by persons belonging to a certain category defined on the basis of nationality or country of origin - Right to an effective judicial remedy - Article 39 of Directive 2005/85 - Concept of ‘court or tribunal’ within the meaning of that article)
   2013/C 86/04
   Language of the case: English

      Referring court

   High Court of Ireland

      Parties to the main proceedings

      Applicants: H.I.D., B.A.

      Defendants: Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General

      Re:

   Request for a preliminary ruling — High Court of Ireland — Interpretation of Articles 23 and 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) — Application by a national of a non-member country for refugee status — Conformity with European Union law of a national procedure which provides for the application of an accelerated or prioritised procedure for examining asylum applications brought by persons belonging to a category defined on the basis of nationality or country of origin — Right to an effective remedy — Concept of ‘court or tribunal’ within the meaning of Article 267 TFEU

      Operative part of the judgment

               1.

               Article 23(3) and (4) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as not precluding a Member State from examining by way of prioritised or accelerated procedure, in compliance with the basic principles and guarantees set out in Chapter II of that directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant.

               2.

               Article 39 of Directive 2005/85 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows an applicant for asylum either to lodge an appeal against the decision of the determining authority before a court or tribunal such as the Refugee Appeals Tribunal (Ireland), and to bring an appeal against the decision of that tribunal before a higher court such as the High Court (Ireland), or to contest the validity of that determining authority’s decision before the High Court, the judgments of which may be the subject of an appeal to the Supreme Court (Ireland).

      (1)  OJ C 204, 9.7.2011.


title: Case C-221/17: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 27 April 2017 — M.G. Tjebbes and Others v Minister van Buitenlandse Zaken

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/26

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 27 April 2017 — M.G. Tjebbes and Others v Minister van Buitenlandse Zaken
   (Case C-221/17)
   (2017/C 239/32)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Appellants: M.G. Tjebbes, G.J.M. Koopman, E. Saleh Abady, L. Duboux

      Defendant: Minister van Buitenlandse Zaken

      Questions referred

   Must Articles 20 and 21 of the Treaty on the Functioning of the European Union, in the light of, inter alia, Article 7 of the Charter of Fundamental Rights of the European Union, be interpreted — in view of the absence of an individual assessment, based on the principle of proportionality, with regard to the consequences of the loss of nationality for the situation of the person concerned from the point of view of EU law — as precluding legislation such as that in issue in the main proceedings, which provides:

               (a)

               that an adult, who is also a national of a third country, loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, on the ground that, for an uninterrupted period of 10 years, that person had his or her principal residence abroad and outside the European Union, although there are possibilities for interrupting that 10-year period;

               (b)

               that under certain circumstances a minor loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, as a consequence of the loss of the nationality of his or her parent, as referred to under (a) above?


title: Case T-98/12: Action brought on 22 February 2012 — Makhlouf v Council

text:
               26.5.2012

               EN

               Official Journal of the European Union

               C 151/30

         Action brought on 22 February 2012 — Makhlouf v Council
   (Case T-98/12)
   2012/C 151/50
   Language of the case: French

      Parties

      Applicant: Ehab Makhlouf (Damas, Syria) (represented by: E. Ruchat, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               Declare the applicant’s action admissible and well founded;

               —

               In consequence, annul Decision 2011/782/CFSP of 1 December 2011 and Regulation (EU) No 36/2012 of 18 January 2012 and their subsequent implementing acts, insofar as they concern the applicant;

               —

               Order the Council of the European Union to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on three pleas in law which are in essence identical or similar to those relied on in Case T-433/11 Makhlouf v Council. (1)

      (1)  OJ 2011 C 290, p. 14.