title: Case C-325/08: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 17 July 2008 — Olympique Lyonnais v Olivier Bernard, Newcastle United FC

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/9

         Reference for a preliminary ruling from the Cour de cassation (France) lodged on 17 July 2008 — Olympique Lyonnais v Olivier Bernard, Newcastle United FC
   (Case C-325/08)
   (2008/C 247/15)
   Language of the case: French
   Referring court
   Cour de cassation
   Parties to the main proceedings

      Applicant: Olympique Lyonnais

      Defendants: Olivier Bernard, Newcastle United FC
   Questions referred

               1.

               Does the principle of the freedom of movement for workers laid down in [Article 39 EC] preclude a provision of national law pursuant to which an espoir player who at the end of his training period signs a professional player's contract with a club of another Member State of the European Union may be ordered to pay damages?

               2.

               If so, does the need to encourage the recruitment and training of young professional players constitute a legitimate objective or an overriding reason in the general interest capable of justifying such a restriction?


title: Case T-401/14: Action brought on 10 June 2014  — Duro Felguera v Commission

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/51

         Action brought on 10 June 2014 — Duro Felguera v Commission
   (Case T-401/14)
   2014/C 253/67
   Language of the case: Spanish

      Parties

      Applicant: Duro Felguera, SA (Gijón, Spain) (represented by: A. López Gómez, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               in the alternative, annul the decision categorising the measures which together constitute the ‘Spanish Tax Lease System’ (‘STLS’) as new State aid that is incompatible with the internal market;

               —

               in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as the only beneficiaries of the alleged aid and, consequently, as solely liable for its recovery;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it orders recovery of the alleged aid in breach of general principles of EU law;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it makes a determination as to the lawfulness of private contracts between the investors and other entities, and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The decision contested in the present proceedings is the same as that contested in Case T-515/13 Spain v Commission.
   In support of the action, the applicant relies on six pleas in law.

               1.

               By its first plea in law, the applicant claims that the contested decision infringes Article 107 TFEU in categorising as State aid the STLS and the individual measures of which it is composed. The applicant alleges that the holistic approach taken by the Commission is erroneous, since it confuses a group of private legal transactions carried out by taxable persons in order to optimise their profits with the establishment of an ad hoc mechanism by the tax authorities to generate tax incentives.

               2.

               By its second plea in law, the applicant alleges that the Commission incorrectly identified the beneficiary of the aid, since the Commission itself acknowledges that the recipient of the aid, or most of it, is the ship owner that acquires the ship, and not the EIG. Although the early depreciation is requested by the EIG and first benefits its members, 90 % of that benefit is passed on to the shipping companies.

               3.

               By its third plea in law, the applicant alleges infringement of Articles 107 and 108 TFEU, in that the Commission categorised the application of the Spanish tonnage tax regime in certain cases as new aid rather than as existing aid.

               4.

               By its fourth plea in law, the applicant alleges infringement of Articles 107 and 296 TFEU, in that the Commission failed to state adequate reasons for its decision to regard the EIGs and their investors as the ultimate and only beneficiaries of the State aid, and thus liable for its recovery.

               5.

               By its fifth plea, and in the alternative, the applicant alleges that the recovery of the aid cannot be ordered, since the contested decision infringes the general principles of equal treatment, of proportionality and of the protection of legitimate expectations.

               6.

               In its sixth plea, and in the alternative, the applicant alleges that, in making a determination as to the validity of clauses in private contracts entered into under Spanish law between the investors and other private entities, the contested decision infringed the principle of conferral of powers and Articles 107 TFEU and 108 TFEU, Article 14 of Council Regulation (EC) No 659/1999 and Article 16 of the Charter of Fundamental Rights of the European Union.


title: Case T-762/14: Action brought on 13 November 2014 — Philips and Philips France v Commission

text:
               2.3.2015

               EN

               Official Journal of the European Union

               C 73/37

      Action brought on 13 November 2014 — Philips and Philips France v Commission
      (Case T-762/14)
      (2015/C 073/48)
      Language of the case: English

         Parties

         Applicants: Koninklijke Philips NV (Eindhoven, Netherlands); and Philips France (Suresnes, France) (represented by: J. de Pree, S. Molin and A. ter Haar, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul the decision, in so far as it concerns Philips;

                  —

                  in the alternative, annul or reduce the amount of the fine imposed on Philips in the decision, and

                  —

                  in any event, order the Commission to pay the costs.

         Pleas in law and main arguments

      By its present action, the applicants seek the annulment, in part, of Commission Decision C(2014) 6250 final of 3 September 2014 in case AT.39574 — Smart Card Chips.
      In support of the action, the applicants rely on nine pleas in law.

                  1.

                  First plea in law, alleging breach of Article 101 TFEU and Article 53 EEA Agreement in that the Commission failed to prove to the requisite legal standard that the contacts that Philips engaged in qualified as a restriction of competition by object.

                  2.

                  Second plea in law, alleging breach of Article 101 TFEU and Article 53 EEA in that the Commission established that the infringement extended to smart card chips for all applications and was not limited to SIM.

                  3.

                  Third plea in law, alleging breach of Article 101 TFEU and Article 53 EEA Agreement in that the Commission failed to prove to the requisite legal standard that Philips was part of a multilateral cartel together with Infineon, Renesas and Samsung and participated in a single and continuous infringement.

                  4.

                  Fourth plea in law, alleging breach of Article 41 of the EU Charter of Fundamental Rights, the principle of sound administration and the duty of care in that the Commission did not handle the case fairly and impartially.

                  5.

                  Fifth plea in law, alleging breach of Article 101 TFEU and Article 53 EEA Agreement in that, as a result of its conduct of the proceedings, the Commission failed to prove the alleged infringement to the requisite legal standard.

                  6.

                  Sixth plea in law, alleging breach of Article 27 of Regulation 1/2003 (1), Article 11 of Regulation 773/2004 (2), Article 48 of the EU Charter of Fundamental Rights and violation of Philips’ rights of defence in that the Commission failed to disclose important exculpatory evidence.

                  7.

                  Seventh plea in law, alleging breach of Article 25 of Regulation 1/2003 in that the Commission was barred from sanctioning the alleged conduct insofar as it took place before 3 September 2004.

                  8.

                  Eighth plea in law, alleging breach of the Fining Guidelines in that the Commission incorrectly established the relevant value of sales.

                  9.

                  Ninth plea in law, alleging breach of the Fining Guidelines, Article 23 of Regulation 1/2003 and the principle of proportionality in that the Commission applied a disproportionate gravity factor.

         (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1).

         (2)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18).


title: Case C-297/05: Judgment of the Court (First Chamber) of 20 September 2007 — Commission of the European Communities v Kingdom of the Netherlands (Identification and compulsory roadworthiness test prior to registration of vehicles in a Member State — Articles 28 EC and 30 EC — Directives 96/96/EC and 1999/37/EC — Recognition of registration certificates issued and roadworthiness tests conducted in other Member States)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/6

         Judgment of the Court (First Chamber) of 20 September 2007 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-297/05) (1)

   (Identification and compulsory roadworthiness test prior to registration of vehicles in a Member State - Articles 28 EC and 30 EC - Directives 96/96/EC and 1999/37/EC - Recognition of registration certificates issued and roadworthiness tests conducted in other Member States)
   (2007/C 269/12)
   Language of the case: Dutch
   Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek and D. Zijlstra, acting as Agents)

      Defendant: Kingdom of the Netherlands (represented by: H.G. Sevenster and D.J.M. de Grave, acting as Agents)

      Intervener in support of the defendant: Republic of Finland (represented by: E. Bygglin, acting as Agent)
   Re:
   Failure of a Member State to fulfil obligations — Breach of Articles 28 EC and 30 EC — Motor vehicles already registered in another Member State required to undergo a technical examination prior to their registration in the Netherlands
   Operative part of the judgment
   The Court:

               1.

               Declares that, by requiring vehicles which are more than three years old and which have previously been registered in other Member States to undergo testing as to their general condition prior to registration in the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 28 EC and 30 EC;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Commission of the European Communities, the Kingdom of the Netherlands and the Republic of Finland to bear their own respective costs.

      (1)  OJ C 296, of 26.11.2005.


title: Case T-222/10: Judgment of the General Court of 14 July 2011 — ratiopharm v OHIM — Nycomed (ZUFAL) (Community trade mark — Opposition proceedings — Application for Community word mark ZUFAL — Earlier Community word mark ZURCAL — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the goods — Article 8(1)(b) of Regulation (EC) No 207/2009 — Restriction of the goods designated in the trade mark application — Article 43(1) of Regulation No 207/2009)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/48

         Judgment of the General Court of 14 July 2011 — ratiopharm v OHIM — Nycomed (ZUFAL)
   (Case T-222/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark ZUFAL - Earlier Community word mark ZURCAL - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Similarity of the goods - Article 8(1)(b) of Regulation (EC) No 207/2009 - Restriction of the goods designated in the trade mark application - Article 43(1) of Regulation No 207/2009)
   2011/C 269/107
   Language of the case: German

      Parties

      Applicant: ratiopharm GmbH (Ulm, Germany) (represented by: S. Völker, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: B. Schmidt, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Nycomed GmbH (Konstanz, Germany) (represented by: A. Ferchland, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 12 March 2010 (Case R 874/2008-4) relating to opposition proceedings between Nycomed GmbH and ratiopharm GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders ratiopharm GmbH to pay the costs.

      (1)  OJ C 195, 17.7.2010.


title: Case C-319/07 P: Judgment of the Court (Third Chamber) of 9 July 2009 — 3F, formerly Specialarbejderforbundet i Danmark (SID) v Commission of the European Communities, Kingdom of Denmark, Kingdom of Norway (Appeals — Tax relief measures for seafarers employed on board vessels registered in the Danish International Register — Commission decision not to raise objections — Action for annulment — Concept of party concerned — Trade union — Admissibility of the action)

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/3

         Judgment of the Court (Third Chamber) of 9 July 2009 — 3F, formerly Specialarbejderforbundet i Danmark (SID) v Commission of the European Communities, Kingdom of Denmark, Kingdom of Norway
   (Case C-319/07 P) (1)

   (Appeals - Tax relief measures for seafarers employed on board vessels registered in the Danish International Register - Commission decision not to raise objections - Action for annulment - Concept of party concerned - Trade union - Admissibility of the action)
   2009/C 205/03
   Language of the case: English

      Parties

      Appellant: 3F, formerly Specialarbejderforbundet i Danmark (SID) (represented by: A.P. Bentley QC and A. Worsøe, advokat)

      Other parties to the proceedings: Commission of the European Communities (represented by: N. Khan and H. van Vliet, Agents), Kingdom of Denmark, Kingdom of Norway

      Re:

   Appeal against the order of the Second Chamber (Extended Composition) of the Court of First Instance of 23 April 2007 in Case T-30/03 Specialarbejderforbundet Danmark (SID) v Commission of the European Communities declaring inadmissible an action for the annulment of Commission Decision C(2002) 4370 final of 13 November 2002 to regard the tax reduction measures applicable to seafarers on board Danish vessels as State aid compatible with the common market — Concept of party concerned — Trade union

      Operative part of the judgment

               1.

               The order of the Court of First Instance of the European Communities of 23 April 2007 in Case T-30/03 SID v Commission is set aside in part, in so far as it did not address the arguments of 3F relating, first, to the competitive position of 3F in relation to other trade unions in the negotiation of collective agreements applicable to seafarers and, second, to the social aspects of the fiscal measures in relation to seafarers employed on board vessels registered in the Danish International Register of Shipping.

               2.

               The plea of inadmissibility raised by the Commission of the European Communities before the Court of First Instance of the European Communities is rejected.

               3.

               The case is remitted to the Court of First Instance of the European Communities for it to rule on the claim by 3F for the annulment of Commission Decision C(2002) 4370 final of 13 November 2002 not to raise objections to the Danish fiscal measures applicable to seafarers employed on board vessels registered in the Danish International Register.

               4.

               Costs are reserved.

      (1)  OJ C 211, 8.9.2007.


title: Case C-135/11 P: Appeal brought on 18 March 2011 by IFAW Internationaler Tierschutz-Fonds gGmbH against the judgment of the General Court (Eighth Chamber) delivered on 13 January 2011 in Case T-362/08: IFAW v European Commission

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/8

         Appeal brought on 18 March 2011 by IFAW Internationaler Tierschutz-Fonds gGmbH against the judgment of the General Court (Eighth Chamber) delivered on 13 January 2011 in Case T-362/08: IFAW v European Commission
   (Case C-135/11 P)
   2011/C 179/14
   Language of the case: English

      Parties

      Appellant: IFAW Internationaler Tierschutz-Fonds gGmbH (represented by: S. Crosby, Advocaat, S. Santoro, Avvocato)

      Other parties to the proceedings: European Commission, Kingdom of Denmark, Republic of Finland, Kingdom of Sweden

      Form of order sought

   The appellant claims that the Court should:

               —

               find that the contested judgment is vitiated by errors of law and to set it aside accordingly;

               —

               annul the Commission's decision refusing access to the Schröder letter and

               —

               order the Commission to pay the Appellant's costs in both proceedings pursuant to Article 69 of the Rules of Procedure of the Court of Justice.

      Pleas in law and main arguments

   The Appellant contends that the General Court, in the contested judgment, erred in law by:

               —

               not recognizing that the Commission has to conduct a full review of whether the grounds relied upon by the Member State for not disclosing a document fall under one of the exceptions of Article 4 of Regulation 1049/2001 (1) by testing the exceptions against the content of the document; and

               —

               ruling that it was able in law to conduct a full review of the refusal to disclose without sight of the document in question.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, p. 43


title: Case C-541/08: Judgment of the Court (Third Chamber) of 11 February 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Fokus Invest AG v Finanzierungsberatung-Immobilientreuhand und Anlageberatung GmbH (FIAG) (Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons — Article 25 of Annex I to the Agreement — Articles 63 TFEU and 64(1) TFEU — Free movement of capital — Company established under the law of a Member State, the shares of which are held by a company established under Swiss law — Purchase by the company of immovable property situated in that Member State)

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/4

         Judgment of the Court (Third Chamber) of 11 February 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Fokus Invest AG v Finanzierungsberatung-Immobilientreuhand und Anlageberatung GmbH (FIAG)
   (Case C-541/08) (1)

   (Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons - Article 25 of Annex I to the Agreement - Articles 63 TFEU and 64(1) TFEU - Free movement of capital - Company established under the law of a Member State, the shares of which are held by a company established under Swiss law - Purchase by the company of immovable property situated in that Member State)
   2010/C 80/06
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: Fokus Invest AG

      Defendant: Finanzierungsberatung-Immobilientreuhand und Anlageberatung GmbH (FIAG)

      Re:

   Reference for a preliminary ruling — Oberster Gerichtshof (Austria) — Interpretation of Article 57(1) of the EC Treaty and of Article 25 of Annex I to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons, signed at Luxembourg on 21 June 1999 (OJ 2002, L 114, p. 6) — Applicability to legal persons of the principle of equal treatment — National legislation establishing a system of prior authorisation in the case of acquisition of immovable property by a foreign national — Acquisition of immovable property by a domestic company all the shares in which are held by Swiss Companies

      Operative part of the judgment

               1.

               Article 25 of Annex I to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons, signed at Luxembourg on 21 June 1999, must be interpreted as meaning that the requirement of equal treatment with nationals in relation to the acquisition of immovable property applies only in relation to natural persons.

               2.

               Article 64(1) TFEU must be interpreted as meaning that the provisions of the Law of the province of Vienna on the purchase of immovable property by foreign nationals (Wiener Ausländergrunderwerbsgesetz) of 3 March 1998, which require foreign nationals, within the meaning of that law, when acquiring immovable property situated in the province of Vienna, to obtain authorisation in respect of that acquisition or else to produce a confirmation that the conditions laid down in that law for exemption from that requirement are satisfied, constitute a restriction on the free movement of capital which is permitted with regard to the Swiss Confederation as a third country.

      (1)  OJ C 55, 07.03.2009.


title: Case T-114/16: Action brought on 18 March 2016 — Delfin Wellness v EUIPO — Laher (infrared cabins and saunas)

text:
               10.5.2016

               EN

               Official Journal of the European Union

               C 165/17

         Action brought on 18 March 2016 — Delfin Wellness v EUIPO — Laher (infrared cabins and saunas)
   (Case T-114/16)
   (2016/C 165/19)
   Language in which the application was lodged: German

      Parties

      Applicant: Delfin Wellness GmbH (Leonding, Austria) (represented by: T. Riedler, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Sabine Laher (Weyer, Austria)

      Details of the proceedings before EUIPO

      Proprietor of the design at issue: Other party to the proceedings before the Board of Appeal

      Design at issue: Community design No 1058812-0001, No 1058812-0002 and No 1058812-0003

      Contested decision: Decisions of the Third Board of Appeal of EUIPO of 12 January 2016 in Cases R 849/2014-3, R 850/2014-3 und R 851/2014-3

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decisions of the Third Board of Appeal in Cases R 849/2014-3, R 850/2014-3 und R 851/2014-3;

               —

               order EUIPO and the other party to the proceedings before the Board of Appeal to pay the costs of all the proceedings.

      Pleas in law

               —

               Infringement of Article 64 Regulation No 6/2002;

               —

               Infringement of Article 65[(1)](f) of Regulation No 6/2002;

               —

               Infringement of Article 65(1)(d) of Regulation No 6/2002.


title: Case T-312/11: Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/32

         Action brought on 14 June 2011 — Süd-Chemie v OHIM — BYK-Cera (CERATIX)
   (Case T-312/11)
   2011/C 238/53
   Language in which the application was lodged: German

      Parties

      Applicant: Süd-Chemie AG (Munich, Germany) (represented by: W. Baron von der Osten-Sacken and A. Wenninger-Lenz, lawyers)

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

      Other party to the proceedings before the Board of Appeal: BYK-Cera BV (Deventer, Netherlands)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision of the Fourth Board of Appeal of OHIM of 8 April 2011 (Case R 1585/2010-4);

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: BYK-Cera BV

      Community trade mark concerned: the word mark ‘CERATIX’ for goods in Class 1 — application No 6 358 832

      Proprietor of the mark or sign cited in the opposition proceedings: the applicant

      Mark or sign cited in opposition: the national word mark ‘CERATOFIX’ for goods in Class 1

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the opposition was rejected

      Pleas in law: Infringement of Article 15 and Article 42(2) and (3) of Regulation No 207/2009 as the defendant:

               —

               Erred in reducing the evidential value of the documents submitted by the applicant with the general reasoning that they are connected with the applicant itself;

               —

               Did not take account of promotional measures as ‘genuine use’;

               —

               Did not include all the relevant circumstances in assessing whether the use of the trade mark was genuine and;

               —

               Did not examine the evidence of use provided as a whole.


title: Case C-183/05: Action brought on 22 April 2005 by the Commission of the European Communities against Ireland

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/22

         Action brought on 22 April 2005 by the Commission of the European Communities against Ireland
   (Case C-183/05)
   (2005/C 182/42)
   Language of the case: English
   An action against Ireland was brought before the Court of Justice of the European Communities on 22 April 2005 by the Commission of the European Communities, represented by Mr Michel Van Beek, acting as Agent, assisted by Maître Matthieu Wemaëre, avocat, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare that, by limiting its transposition into Irish law of the provisions of Article 12(2) and Article 13(1)(b) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (1) to those species listed in Annex IV of the Directive that occur in Ireland, Ireland has failed to comply with the said Articles 12(2) and 13(1)(b) of this Directive and with its obligation under the Treaty,

               —

               declare that, in failing to take all the necessary specific measures to effectively implement the system of strict protection required by Article 12(1) of Directive 92/43/EEC, Ireland has failed to comply with the said Article 12(1) of this Directive and with its obligation under the Treaty,

               —

               declare that, by retaining provisions of Irish legislation that are inconsistent with the provisions of Articles 12(1) and 16 of Directive 92/43/EEC, Ireland has failed to comply with the said Articles 12(1) and 16 of this Directive and with its obligation under the Treaty,

               —

               order Ireland to pay the costs.

         Pleas in law and main arguments
   The Commission maintains that Ireland has failed to comply with Directive 92/43/EEC on the following grounds:

               —

               The transposition of Article 12(2) of Directive 92/43/EEC (the Habitats Directive) in Irish law is incomplete in so far as it prohibits the keeping, transport and sale or exchange, and offering for sale or exchange of species listed in Annex IV(a) of the Directive only in respect of those animal species that occur in Ireland.

               —

               The implementation of Article 12(1) of the Directive in Ireland is incomplete in so far as Ireland has not adopted all the specific measures necessary to effectively establish a system of strict protection for the animal species listed in Annex IV(a) that are found in Ireland.

               —

               The transposition of Articles 12(1) and 16 of the Directive is incorrect because there exists a parallel regime of derogations that is incompatible with the scope of and the conditions for the application of Article 16 and which leads to a violation by Ireland of its obligation under Article 12(1) to establish and maintain a system of strict protection for animal species listed in Annex IV(a) of the Directive.

      (1)  OJ L 206, 22.07.1992, p. 7


title: Case C-383/12 P: Appeal brought on 8 August 2012 by Environmental Manufacturing LLP against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-570/10: Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/13

      Appeal brought on 8 August 2012 by Environmental Manufacturing LLP against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-570/10: Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
      (Case C-383/12 P)
      (2012/C 331/21)
      Language of the case: English

         Parties

         Appellant: Environmental Manufacturing LLP (represented by: S. Malynicz, Barrister, M. Atkins, Solicitor, K. Shadbolt, Trade Mark Attorney)

         Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Société Elmar Wolf

         Form of order sought

      The appellant seeks the following order:

                  1.

                  The judgment of the General Court (Fourth Chamber) in Case T-570/10 dated 22 May 2012 shall be set aside and the Court shall give final judgment in the matter.

                  2.

                  The Office and intervener shall bear their own costs and pay those of the applicant.

         Pleas in law and main arguments

      Following the Court of Justice's judgment in Case C-252/07 Intel Corporation (2008) ECR I-8823, proof that the use of the later mark is or would be detrimental to the distinctive character of the earlier mark requires evidence of a change in the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered consequent on the use of the later mark, or a serious likelihood that such a change will occur in the future. The General Court erroneously did not require such proof, instead concluding that it is sufficient merely if the earlier mark's ability to identify the goods or services for which it is registered and used as coming from the proprietor of that mark is weakened because use of the later mark leads to dispersion of the identity and hold upon the public mind of the earlier mark.


title: Case T-272/04: Order of the Court of First Instance of 29 June 2007 — Keppenne v Commission

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/17

         Order of the Court of First Instance of 29 June 2007 — Keppenne v Commission
   (Case T-272/04) (1)

   (2007/C 223/28)

      Language of the case: French

   The President of the Court of First Instance (Fifth Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 273, 6.11.2004.


title: Case C-387/10: Action brought on 2 August 2010 — European Commission v Republic of Austria

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/12

         Action brought on 2 August 2010 — European Commission v Republic of Austria
   (Case C-387/10)
   ()
   2010/C 328/20
   Language of the case: German

      Parties

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

      Defendant: Republic of Austria

      Form of order sought

   The European Commission claims that the Court should:

               —

               declare that the Republic of Austria has failed to fulfil its obligations under Article 49 EC and Article 36 of the EEA Agreement by adopting and retaining provisions under which only national financial institutions or national business trustees may be appointed as tax representatives of investment or real property investment funds;

               —

               order the Republic of Austria to pay the costs.

      Pleas in law and main arguments

   The Commission takes the view that provisions under which only national financial institutions or national business trustees may be appointed as tax representatives of investment or real property investment funds constitute an establishment requirement which restricts the freedom to provide services.
   Contrary to the view taken by Austria, the disputed provisions are neither suitable for improving the quality of tax representation nor for protecting the interests of investors and the fiscal administration in proper compliance with tax obligations. It is thus not possible to discern a justification for the restriction on the freedom to provide services.


title: Order of the Court (Third Chamber) of 5 October 2000 in Case C-363/96 (reference for a preliminary ruling by the Tribunale di Catania): ISFA SpA v Ministero delle Finanze (Article 104(3) of the Rules of Procedure — Manifestly identical question)

text:
C 79/8                   EN                      Official Journal of the European Communities                                           10.3.2001
1.    The appeal is dismissed.                                                                   ORDER OF THE COURT
2.    J is to pay the costs.
                                                                                (Third Chamber)
(1) OJ C 47 of 19.2.2000.                                                                            of 5 October 2000
                                                                            in Case C-182/97 (reference for a preliminary ruling
                                                                            from the Tribunale di Brescia): Palazzo Piacentini Srl v
                                                                                Amministrazione Finanzaria dello Stato (1)
                                                                            (Article 104(3) of the Rules of Procedure — Manifestly
                     ORDER OF THE COURT                                                               identical question)
                           (Third Chamber)                                                              (2001/C 79/15)
                         of 5 October 2000
                                                                                (Language of the case: Italian)
in Case C-363/96 (reference for a preliminary ruling by
the Tribunale di Catania): ISFA SpA v Ministero delle
                               Finanze (1)
                                                                            In Case C-182/97: reference to the Court under Article 177 of
                                                                            the EC Treaty (now Article 234 EC) from the Tribunale di
(Article 104(3) of the Rules of Procedure — Manifestly                      Brescia (Italy) for a preliminary ruling in the proceedings
                          identical question)                               pending before that court between Palazzo Piacentini Srl and
                                                                            Amministrazione Finanzaria dello Stato on the interpretation
                                                                            of Community law concerning the recovery of sums paid but
                             (2001/C 79/14)                                 not due — the Court, composed of: J.C. Moitinho de Almeida,
                                                                            President of the Chamber, C. Gulmann and J.-P. Puissochet
                                                                            (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate Gen-
                     (Language of the case: Italian)                        eral; R. Grass, Registrar, has made an order on 5 October
                                                                            2000, the operative part of which is as follows:
In Case C-363/96: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) by the Tribunale di Catania              1.    Community law does not prevent a Member State from resisting
(District Court, Catania) (Italy) for a preliminary ruling in the                 actions for repayment of charges levied in breach of Community
proceedings pending before that court between ISFA SpA and                        law by relying on a three-year time-limit under national law
Ministero delle Finanze — on the interpretation of Community                      which derogates from the ordinary rules governing actions for
law concerning the recovery of sums paid but not due — the                        the recovery of sums paid but not due between private
Court (Third Chamber), composed of: J.C. Moitinho de Almei-                       individuals, the latter actions being subject to a more favourable
da, President of the Chamber, C. Gulmann and J.-P. Puissochet                     time-limit, provided that the time-limit in question applies in
(Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate Gen-                       the same way to actions for recovery of such charges which are
eral; R. Grass, Registrar, has made an order on 5 October                         based on Community law as to actions based on domestic law.
2000, the operative part of which is as follows:
                                                                            2.    In circumstances such as those of the main proceedings,
                                                                                Community law does not prevent a Member State from resisting
In circumstances such as those of the main proceedings, Community
law does not prevent a Member State from resisting actions for                    actions for repayment of charges levied in breach of a directive
repayment of charges levied in breach of a directive by relying on a              by relying on a time-limit under national law which is reckoned
                                                                                from the date of payment of the charges in question, even if, at
time-limit under national law which is reckoned from the date of
payment of the charges in question, even if, at that date, the directive          that date, the directive concerned had not yet been properly
concerned had not yet been properly transposed into national law.                 transposed into national law.
                                                                            (1) OJ C 212 of 12.7.1997.
(1) OJ C 9 of 11.1.1997.


title: Case C-377/11: Judgment of the Court (First Chamber) of 19 July 2012 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña — Spain) — International Bingo Technology SA v Tribunal Económico-Administrativo Regional de Cataluña (TEARC) (Sixth VAT Directive — Articles 11A(1)(a), 17(5) and 19(1) — Organisation of games of bingo — Legal obligation to use part of the card price to pay winnings to players — Calculation of the basis of assessment)

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/15

         Judgment of the Court (First Chamber) of 19 July 2012 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña — Spain) — International Bingo Technology SA v Tribunal Económico-Administrativo Regional de Cataluña (TEARC)
   (Case C-377/11) (1)

   (Sixth VAT Directive - Articles 11A(1)(a), 17(5) and 19(1) - Organisation of games of bingo - Legal obligation to use part of the card price to pay winnings to players - Calculation of the basis of assessment)
   2012/C 295/25
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Cataluña

      Parties to the main proceedings

      Applicant: International Bingo Technology SA

      Defendant: Tribunal Económico-Administrativo Regional de Cataluña (TEARC)

      Re:

   Reference for a preliminary ruling — Tribunal Superior de Justicia de Cataluña — Interpretation of Article 11A(1)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Taxable amount — Organisation of games of bingo — Sale of tickets to players — Use of part of the sums thus collected to pay out winnings to players

      Operative part of the judgment

               1.

               Article 11A(1)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 98/80/EC of 12 October 1998, must be interpreted as meaning that, in the case of the sale of bingo cards such as those at issue in the main proceedings, the taxable amount for VAT does not include the portion of the card price fixed in advance by legislation and intended to be used to pay winnings to players;

               2.

               Articles 17(5) and 19(1) of Sixth Directive 77/388, as amended by Directive 98/80, must be interpreted as meaning that the Member States may not provide that, for the purposes of calculating the deductible proportion of VAT, the portion, fixed in advance by legislation, of the bingo card price which must be returned to players as winnings is to be regarded as forming part of the turnover which must be included in the denominator of the fraction referred to in Article 19(1).

      (1)  OJ C 290, 1.10.2011.


title: Appeals brought on 15 and 21 September 1994 by Olivier Roujansky and Jacques Bonnamy against the orders made on 14 July 1994 by the Second Chamber of the Court of First Instance of the European Communities in Cases T-584/93 and T-179/94 between the parties bringing these appeals and Council of the European Union (Case C-253/94 P) (Case C-264/94 P)

text:
No C 54/14        | EN               Official Journal of the European Communities                                  4. 3 . 95
Appeals brought on 15 and 21 September 1994 by Olivier          European Communities in Cases T-584/93 and T-179/94
Roujansky and Jacques Bonnamy against the orders made           between the parties bringing these appeals and Council of
on 14 July 1994 by the Second Chamber of the Court of           the European Union were brought before the Court of
First Instance of the European Communities in Cases             Justice of the European Communities on 15 and
T-584/93 and T-179/94 between the parties bringing these        21 September 1994 by Olivier Roujansky ( Case C-253/94 P)
       appeals and Council of the European Union                and Jacques Bonnamy ( Case C-264/94 P).
                    (Case C-253/94 P)
                    (Case C-264/94 P)                           By orders of 13 January 1995 the Court of First Instance
                       ( 95/C 54/24                             dismissed the appeals and ordered each of the applicants to
                                                                bear their own costs .
Appeals against the orders made on 14 July 1994 ( ) by the
Second Chamber of the Court of First Instance of the            (!) OJ No C 275 , 1 . 10 . 1994, p. 25 .


title: Case C-376/14: Reference for a preliminary ruling from Supreme Court (Ireland) made on 7 August 2014 — C v M

text:
               6.10.2014

               EN

               Official Journal of the European Union

               C 351/7

         Reference for a preliminary ruling from Supreme Court (Ireland) made on 7 August 2014 — C v M
   (Case C-376/14)
   2014/C 351/09
   Language of the case: English

      Referring court

   Supreme Court

      Parties to the main proceedings

      Applicant: C

      Defendant: M

      Questions referred

               1.

               Does the existence of the French proceedings relating to the custody of the child preclude, in the circumstances of this case, the establishment of habitual residence of the child in Ireland?

               2.

               Does either the father or the French courts continue to maintain custody rights in relation to the child so as to render wrongful the retention of the child in Ireland?

               3.

               Are the Irish courts entitled to consider the question of habitual residence of the child in the circumstances where she has resided in Ireland since July, 2012 at which time her removal to Ireland was not in breach of French law?


title: Case C-175/06: Reference for a preliminary ruling from the Tribunale Civile Di Genova lodged on  24 March 2006  — Alessandro Tedesco v Tomasoni Fittings SrL, RWO Marine Equipment Ltd

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/8

         Reference for a preliminary ruling from the Tribunale Civile Di Genova lodged on 24 March 2006 — Alessandro Tedesco v Tomasoni Fittings SrL, RWO Marine Equipment Ltd
   (Case C-175/06)
   (2006/C 154/17)
   Language of the case: Italian
   Referring court
   Tribunale Civile Di Genova
   Parties to the main proceedings

      Applicant: Alessandro Tedesco

      Defendant: Tomasoni Fittings SrL, RWO Marine Equipment Ltd
   Question(s) referred

               1.

               Is a request for obtaining a description of goods under Articles 128 and 130 of the Italian Code of Industrial and Intellectual Property, in accordance with the formal terms of the order made by this court in the present case, one of the forms of the taking of evidence prescribed by Council Regulation (EC) No 1206/2001 of 28 May 2001 (1) (on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters) by which the courts of one Member State may, on the basis of that regulation, request that the competent court of another Member State should itself take that evidence?

               2.

               If the answer to question 1 is yes and the request for obtaining a description is incomplete or fails to comply with the conditions under Article 4 of the regulation, is the court to which the request is made under an obligation to:

                           (a)

                           send an acknowledgment of receipt in accordance with the conditions laid down by Article 7 of the regulation;

                           (b)

                           indicate any respect in which the request may be incomplete so as to enable the requesting court to complete and/or amend its request?

      (1)  OJ L 174, page 1


No C 269/22             EN                  Official Journal of the European Communities                                     14 . 9 . 96
        Removal from the register of Case C-5/96 ( 1 )                       Removal from the register of Case C-413/93 ( )
                           ( 96/C 269/46 )                                                        ( 96/C 269/50 )
By order of 23 May 1996 , the President of the Court of                By order of 19 June 1996 , the President of the Court of
Justice of the European Communities ordered the removal                Justice of the European Communities ordered the removal
from the register of Case C-5/96 : Commission of the                   from the register of Case C-413/93 ( Request for a
European Communities v. Kingdom of Spain .                             preliminary ruling from the Pretura circondariale di
                                                                       Trapani ): Criminal proceedings against Matteo Peralta .
(') OJ No C 77, 16 . 3 . 1996 .
                                                                       (') OJ No C 300 , 6 . 11 . 1993 .
      Removal from the register of Case C-387/95 (')
                           ( 96/C 269/47 )                                   Removal from the register of Case C-121 /94 (')
                                                                                ( 96/C 269/51 )
By order of 3 June 1996 , the President of the Court of Justice
of the European Communities ordered the removal from the               By order of 28 June 1996 , the President of the Court of
register of Case C-387/95 : Commission of the European                 Justice of the European Communities ordered the removal
Communities v. Ireland .                                               from the register of Case C-121 /94 ( Request for a
                                                                       preliminary ruling from the Bundessozialgericht ): Domingo
(') OJ No C 31 , 3 . 2 . 1996 .                                        Gonzalez-Rodriguez v. Bundesanstalt fur Arbeit.
                                                                       (') OJ No C 174 , 25 . 6 . 1994 .
       Removal from the register of Case C-394/95 (')
                            ( 96/C 269/48 )
                                                                              Removal from the register of Case C-385/95 ( )
By order of 3 June 1996 , the President of the Court of Justice                                   ( 96/C 269/52 )
of the European Communities ordered the removal from the
register of Case C-394/95 : Commission of the European                 By order of 28 June 1996 , the President of the Court of
Communities v. Ireland .                                               Justice of the European Communities ordered the removal
                                                                       from the register of Case C-385/95 : Commission of the
(') OJ No C 31 , 3 . 2 . 1996 .                                        European Communities v. Portuguese Republic .
                                                                       (') OJ No C 31 , 3 . 2 . 1996 .
       Removal from the register of Case C-40/96 ( )
                            ( 96/C 269/49 )
                                                                              Removal from the register of Case C-393/95 ( )
 By order of 5 June 1996 , the President of the Court of Justice                                   ( 96/C 269/53 )
 of the European Communities ordered the removal from the
register of Case C-40/96 : Commission of the European                   By order of 9 July 1 996 , the President of the Court of Justice
 Communities v. Kingdom of Spain .                                      of the European Communities ordered the removal from the
                                                                        register of Case C-393/95 : Commission of the European
 (') OJ No C 95 , 30 . 3 . 1996 .                                       Communities v. Kingdom of Belgium .
                                                                        (>) OJ No C 31 , 3 . 2 . 1996 .


title: Case T-697/14: Action brought on 29 September 2014  — MIP Metro v OHIM — Associated Newspapers (METRO)

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/59

         Action brought on 29 September 2014 — MIP Metro v OHIM — Associated Newspapers (METRO)
   (Case T-697/14)
   2014/C 409/80
   Language in which the application was lodged: German

      Parties

      Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J. Plate and R. Kaase, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Associated Newspapers Ltd (London, United Kingdom)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 July 2014 in Case R 606/2013-5, in so far as it annulled the Opposition Division’s decision of 4 March 2013 concerning the opposition against Community trade mark application No 7 79  116‘METRO’ and referred the case back to the Opposition Division for examination and a decision on the case;

               —

               Order the defendant to pay the costs, including the costs of the appeal proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: The figurative mark including the word element METRO for goods and services in Classes 9, 16, 35, 36, 38, 39, 41 and 42 — Community trade mark application No 7 79  116

      Proprietor of the mark or sign cited in the opposition proceedings: the other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: the national word mark ‘METRO’

      Decision of the Opposition Division: the opposition was rejected

      Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the case was referred back to the Opposition Division

      Pleas in law: Infringement of Article 74(2) of Regulation No 40/94


title: Case T-748/14: Action brought on 5 November 2014 — Montenegro v OHIM (Shape of a bottle)

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/43

         Action brought on 5 November 2014 — Montenegro v OHIM (Shape of a bottle)
   (Case T-748/14)
   (2015/C 007/49)
   Language of the case: English

      Parties

      Applicant: Montenegro Srl (Zola Predosa, Italy) (represented by: F. Jacobacci, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: International Registration No 1 1 62  963 designating the European Union in respect of the tri-dimensional mark representing a shape of a bottle

      Contested decision: Decision of the Second Board of Appeal of OHIM of 29 August 2014 in Case R 20/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision;

               —

               Order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009.


title: Case C-222/16: Order of the Court (Ninth Chamber) of 15 November 2016 (request for a preliminary ruling from the Administrativen sad — Varna (Bulgaria)) — ‘MIP-TS’ OOD v Nachalnik na Mitnitsa Varna (Reference for a preliminary ruling — Commercial policy — Regulation (EC) No 1225/2009 — Article 13 — Circumvention — Implementing Regulation (EU) No 791/2011 — Open mesh fabrics of glass fibres originating in the People’s Republic of China — Anti-dumping duties — Implementing Regulations (EU) No 437/2012 and (EU) No 21/2013 — Consignment from Thailand — Extension of anti-dumping duties — Temporal scope — Community Customs Code — Post-clearance recovery of import duties)

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/11

         Order of the Court (Ninth Chamber) of 15 November 2016 (request for a preliminary ruling from the Administrativen sad — Varna (Bulgaria)) — ‘MIP-TS’ OOD v Nachalnik na Mitnitsa Varna
   (Case C-222/16) (1)

   ((Reference for a preliminary ruling - Commercial policy - Regulation (EC) No 1225/2009 - Article 13 - Circumvention - Implementing Regulation (EU) No 791/2011 - Open mesh fabrics of glass fibres originating in the People’s Republic of China - Anti-dumping duties - Implementing Regulations (EU) No 437/2012 and (EU) No 21/2013 - Consignment from Thailand - Extension of anti-dumping duties - Temporal scope - Community Customs Code - Post-clearance recovery of import duties))
   (2017/C 063/16)
   Language of the case: Bulgarian

      Referring court

   Administrativen sad — Varna

      Parties to the main proceedings

      Applicant:‘MIP-TS’ OOD

      Defendant: Nachalnik na Mitnitsa Varna

      Operative part

   Article 1(1) of Council Implementing Regulation (EU) No 791/2011 of 3 August 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain open mesh fabrics of glass fibres originating in the People’s Republic of China must be interpreted as meaning that the definitive anti-dumping duty established by that provision is applicable to imports of open mesh fabrics of glass fibres, referred to in that provision, declared as having originated in Thailand and carried out prior to the entry into force of Regulation (EU) No 437/2012 of 23 May 2012 initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Implementing Regulation No 791/2011, and making those exports subject to registration, such as the imports at issue in the main proceedings, where it is established that those open mesh fabrics of glass fibres in fact originate in the People’s Republic of China.

      (1)  OJ C 243, 4.7.2016.


title: Case C-261/00: Reference for a preliminary ruling by the Hessisches Finanzgericht by order of that court of 21 February 2000 in the case of Lohmann GmbH & Co. KG v Oberfinanzdirektion Koblenz

text:
7.10.2000              EN                     Official Journal of the European Communities                                            C 285/1
                                                                        I
                                                                  (Information)
                                                   COURT OF JUSTICE
                                                             COURT OF JUSTICE
Reference for a preliminary ruling by the Hessisches                        Reference for a preliminary ruling by the Hessisches
Finanzgericht by order of that court of 21 February                         Finanzgericht by order of that court of 21 February
2000 in the case of Lohmann GmbH & Co. KG v                                 2000 in the case of Lohmann GmbH & Co. KG v
                 Oberfinanzdirektion Koblenz                                                 Oberfinanzdirektion Koblenz
                         (Case C-260/00)                                                             (Case C-261/00)
                         (2000/C 285/01)                                                             (2000/C 285/02)
Reference has been made to the Court of Justice of the                      Reference has been made to the Court of Justice of the
European Communities by order of the Hessisches Finanzge-                   European Communities by order of the Hessisches Finanzge-
richt (Finance Court, Hessen) of 21 February 2000, received at              richt (Finance Court, Hessen) of 21 February 2000, received at
the Court Registry on 28 June 2000, for a preliminary ruling                the Court Registry on 28 June 2000, for a preliminary ruling
in the case of Lohmann GmbH & Co. KG v Oberfinanzdirektion                  in the case of Lohmann GmbH & Co. KG v Oberfinanzdirektion
Koblenz (Principal Revenue Office, Koblenz) on the following                Koblenz (Principal Revenue Office, Koblenz) on the following
questions:                                                                  questions:
1.    Does the description ‘orthopaedic appliances’ within the              1.    Does the description ‘orthopaedic appliances’ within the
      meaning of CN Code No 9021 cover a wrist support,                           meaning of CN Code No 9021 cover a back support,
      called epX Wrist Dynamic, size M/L, made of 1,2 mm-                         called epX Back Basic, size S, manufactured by sewing
      thick three-layer material in a single colour, whereby a                    together and consisting primarily of elastic open-work
      very thin synthetic central layer is enclosed between two                   textile materials up to 1,5 mm thick, approximately
      elastic membranes; tubular in shape and manufactured                        87 cm long and 23 cm wide, closed at the front with a
      by sewing together, with four slightly-curved stabilising                   Velcro fastening and with two additional elastic textile
      stays made of non-rusting material and approximately                        straps on the outside which can be pulled forward,
      12 cm long integrated on each side; approximately 19 cm                     stretched and secured on the Velcro patch, and which has
      long, with an upper diameter of about 11 cm, a lower                        a narrow, sewn-in synthetic baton in the (rear) centre and
      diameter of about 9 cm and a circular opening for the                       a pocket for an insert at the rear?
      thumb?
2.    Does the term ‘solely’, used in Note 1(b) to CN Chapter               2.    Does the term ‘solely’, used in Note 1(b) to CN Chapter
      90 and in Note 2(b) to CN Chapters 61 and 62 allow the                      90 and in Note 2(b) to CN Chapters 61 and 62 allow the
      elasticity of the material to be regarded as the sole                       elasticity of the material to be regarded as the sole
      relevant criterion even if the supporting function of the                   relevant criterion even if the supporting function is at least
      article is at least strengthened not only through being                     strengthened through the article being manufactured, in
      manufactured in accordance with its intended use but                        accordance with its intended use, in such a way as to
      also by other factors (in this case the stabilising stays)?                 work in materials of varying degrees of elasticity?


title: Order of the President of the Court of First Instance of 10 November 2004 in Case T-303/04 R, European Dynamics SA v Commission of the European Communities (Public service contracts — Community tender procedure — Interim measures — Application for suspension of operation — Urgency — None)

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/17

      ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

   of 10 November 2004
   in Case T-303/04 R, European Dynamics SA v Commission of the European Communities
   (Public service contracts - Community tender procedure - Interim measures - Application for suspension of operation - Urgency - None)
   (2005/C 69/33)
   Language of the case: English
   In Case T-303/04 R, European Dynamics SA, established in Athens (Greece), represented by S. Pappas, lawyer, against Commission of the European Communities (Agents: L. Parpala and E. Manhaeve, and J. Stuyck, lawyer, with an address for service in Luxembourg) — application for suspension of operation of, first, the Commission's decision of 4 June 2004 (DIGIT/R2/CTR/mas D(2004) 324) to rank only in second place the offer submitted by the consortium of which the applicant is a member following a call for tenders for the provision of informatics services and, second, the Commission's decision of 14 July 2004 (DG DIGIT/R2/CTR/mas D(2004) 811) rejecting the applicant's complaints of 21 June, 1, 5 and 8 July 2004 against the award of the contract to another consortium — the President of the Court of First Instance has made an order on 10 November 2004, the operative part of which is as follows:

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Case C-289/11 P: Judgment of the Court (Third Chamber) of 3 May 2012 — Legris Industries SA v European Commission (Appeal — Competition — Cartels — Copper fittings and Copper alloy fittings Sector — Commission decision finding an infringement of Article 81 EC — Fines — Parent companies and subsidiaries — Whether unlawful conduct attributable)

text:
               16.6.2012

               EN

               Official Journal of the European Union

               C 174/13

         Judgment of the Court (Third Chamber) of 3 May 2012 — Legris Industries SA v European Commission
   (Case C-289/11 P) (1)

   (Appeal - Competition - Cartels - Copper fittings and Copper alloy fittings Sector - Commission decision finding an infringement of Article 81 EC - Fines - Parent companies and subsidiaries - Whether unlawful conduct attributable)
   2012/C 174/18
   Language of the case: French

      Parties

      Appellant: Legris Industries SA (represented by: A. Wachsmann and S. Thibault-Liger, avocates)

      Other party to the proceedings: European Commission (represented by: C. Giolito, acting as Agent)

      Re:

   Appeal brought against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T-376/06 Legris Industries v Commission, by which the Court dismissed the action for partial annulment of Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) — Copper Fittings and Copper Alloy Fittings Sector — Infringement of the right of access to an independent and impartial tribunal — Whether unlawful conduct attributable — Infringement of the principles of equal treatment, personal liability and the principle that the penalty must be specific to the offender — Distortion of evidence

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Legris Industries SA to pay the costs.

      (1)  OJ C 252, 27.8.2011.


20150731066617162015/C 270/543112014TC27020150817EN01ENINFO_JUDICIAL20150625424213Case T-311/14: Order of the General Court of 25 June 2015 — Seca Benelux and Others v Parliament
 ---documentbreak--- C2702015EN4230120150625EN0054423421Order of the General Court of 25 June 2015 — Seca Benelux and Others v Parliament
   (Case T-311/14) (
         1
      )2015/C 270/54Language of the case: FrenchThe President of the Fourth Chamber has ordered that the case be removed from the register.
   (
         1
      )	OJ C 194, 24.6.2014.


title: Case C-276/04: Reference for a preliminary ruling by the Tribunal des affaires de sécurité sociale de Saint-Etienne by judgment of that Tribunal of 5 April 2004 in the case of SAS Bricorama France against Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales — Caisse ORGANIC

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/15

         Reference for a preliminary ruling by the Tribunal des affaires de sécurité sociale de Saint-Etienne by judgment of that Tribunal of 5 April 2004 in the case of SAS Bricorama France against Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales — Caisse ORGANIC
   (Case C-276/04)
   (2004/C 201/31)
   Reference has been made to the Court of Justice of the European Communities by judgment of the Tribunal des affaires de sécurité sociale de Saint-Etienne (Saint-Etienne Social Security Tribunal) (France) of 5 April 2004, received at the Court Registry on 29 June 2004, for a preliminary ruling in the case of SAS Bricorama France against Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales — Caisse ORGANIC.
   The Tribunal des affaires de sécurité sociale de Saint-Etienne asks the Court of Justice of the European Communities to give a preliminary ruling on the following question:
   Should Article 87 EC be interpreted as meaning that State funding by France through the Comité Professionnel de la Distribution des Carburants (Fuel Distributors' Trade Committee) (‘the CPDC’) and through the Fonds d'Intervention pour la Sauvegarde de l'Artisanat et du Commerce (Intervention Fund for the Support of Crafts and Trade) (‘the FISAC’) by way of assistance when self-employed craftsmen and traders retire and grants made to the old-age insurance scheme for self-employed persons in manufacturing and trading occupations, and to the scheme for self-employed persons in the craft sector constitute State aid?


title: Case F-69/15: Order of the Civil Service Tribunal (3rd Chamber) of 30 June 2016 — Kaufmann v Commission (Civil service — Social security — Joint Sickness Insurance Scheme — Home nurse services — Prior authorisation — Conditions — Obligation to use service-providers with legal authorisation to provide home nurse or ‘nursing’ services — Principle of non-discrimination — Principle of protection of legitimate expectations — Duty to have regard for the welfare of officials — Limits — Action manifestly lacking any legal basis — Direction to the administration — Manifest inadmissibility — Article 81 of the Rules of Procedure)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/44

         Order of the Civil Service Tribunal (3rd Chamber) of 30 June 2016 — Kaufmann v Commission
   (Case F-69/15)
   ((Civil service - Social security - Joint Sickness Insurance Scheme - Home nurse services - Prior authorisation - Conditions - Obligation to use service-providers with legal authorisation to provide home nurse or ‘nursing’ services - Principle of non-discrimination - Principle of protection of legitimate expectations - Duty to have regard for the welfare of officials - Limits - Action manifestly lacking any legal basis - Direction to the administration - Manifest inadmissibility - Article 81 of the Rules of Procedure))
   (2016/C 296/54)
   Language of the case: French

      Parties

      Applicant: Sandra Kaufmann (Böhl-Iggelheim, Germany) (represented by: F. Turk, lawyer)

      Defendant: European Commission (represented by: T.S. Bohr and C. Ehrbar, Agents)

      Re:

   Application for annulment of the Commission’s decision not to grant a former official, of whom the applicant is the legal successor, prior authorisation for entitlement to the services of a home nurse, and an application for the applicant to be granted the sums to cover payment of the home nurse services provided by the company concerned, with effect as of 1 January 2014.

      Operative part of the order

               1.

               The action is dismissed as in part manifestly inadmissible and in part manifestly unfounded.

               2.

               Ms Sandra Kaufmann is to bear her own costs and is ordered to pay the costs incurred by the European Commission.


title: Case C-66/07: Judgment of the Court (Seventh Chamber) of 27 September 2007 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Directive 2004/27/EC — Medicinal products for human use — Failure to transpose into national law within the prescribed period)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/19

         Judgment of the Court (Seventh Chamber) of 27 September 2007 — Commission of the European Communities v Ireland
   (Case C-66/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2004/27/EC - Medicinal products for human use - Failure to transpose into national law within the prescribed period)
   (2007/C 297/30)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: B. Stromsky and D. Lawunmi, Agents)

      Defendant: Ireland (represented by: D. O'Hagan, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 34)
   Operative part of the judgment
   The Court:

               1)

               Declares that, by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use, Ireland has failed to fulfil its obligations under that directive;

               2)

               Orders Ireland to pay the costs.

      (1)  OJ C 69, 24.3.2007.


title: Case T-53/06: Action brought on  21 February 2006  — UPM-Kymmene v Commission

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/41

         Action brought on 21 February 2006 — UPM-Kymmene v Commission
   (Case T-53/06)
   (2006/C 86/80)
   Language of the case: English
   Parties

      Applicant: UPM-Kymmene Oyj (Helsinki, Finland) [represented by: B. Amory, E. Friedel, F. Bimont, lawyers]

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Partial annulment of the Decision insofar as it concluded that Rosenlew Saint Frères Emballage participated in the Valveplast meetings at the European level from 18 July 1994 until 31 January 1999 and that a single and continuous infringement was formed on the basis of Rosenlew Saint Frères Emballage's brief participation in the Valveplast meetings (from 21 November 1997 until 26 November 1998) and its cooperation in the French meetings on open mouth bags;

               —

               an order for a reduction in the amount of the fine imposed on the applicant under the Decision;

               —

               an order that the Commission reimburse the applicant for the unduly paid portion of the fine, with interests starting from the date of payment of the fine until full and final reimbursement by the Commission; and

               —

               an order that the Commission pay for the costs of the proceedings.

         Pleas in law and main arguments
   The applicant seeks the partial annulment of the Commission Decision C(2005) 4634 final of 30 November 2005 in Case COMP/F/38.354 — Industrial bags. The applicant does not contest the substantive truth of the facts established, but submits that the Decision contains various errors of assessment of the facts concerning the applicant's subsidiary Rosenlew Saint Frères Emballage and its role in the cartel activities, and seeks a reduction of the amount of the fine imposed on the ground that it is unjustified and disproportionate.
   In support of its application, the applicant alleges errors of fact in the application of Article 81(1) CE. The applicant submits that the Decision is vitiated due to the absence of evidence of a single and continuous infringement committed by Rosenlew Saint Frères Emballage. Second, the applicant submits that the Commission wrongly assessed the duration of the infringement. According to the applicant, the Commission failed to establish that Rosenlew Saint Frères Emballage took part in cartel activities in the block bags sector and participated in the Valveplast meetings at the European level as of 20 December 2004. In addition, the applicants states that there is insufficient proof of Rosenlew Saint Frères Emballage's involvement in the meetings of the French group on open mouth bags until 31 January 1999.
   The applicant furthermore submits an infringement of the general principles of proportionality, equal treatment and fairness, and errors in assessment in setting the fine.
   First, the applicant claims that the Commission exceeded the limits of its discretion under Article 23(3) of Regulation 1/2003 by setting a starting amount for its fine that is disproportionate to the gravity of the infringement committed. In this regard, the applicant challenges the application of a deterrent factor of 2 and contends that the market share held in 1996 in the industrial bags market covered by the overall cartel was not the appropriate basis for calculating the basic amount of the fine.
   Second, the applicant submits that the Commission erroneously assessed the duration of Rosenlew Saint Frères Emballage participation in the cartel activities.
   Third, the applicant contends that the Commission failed to give proper consideration to the fact that the applicant was held liable only in its capacity as parent company and, in so doing, breached the principle of fairness.
   Fourth, the applicant submits that the Commission failed to consider certain mitigating circumstances and wrongly attributed the aggravating circumstances of recidivism.
   Finally, in relation to the setting of the final amount of the fine, the applicant objects to the Commission's characterisation of the cartel as a very serious infringement of the competition rules, given the cartel's limited effect on competition and geographical scope.
   The applicant also submits a breach of the rights of defence in that, during the administrative phase, it was not granted access to certain relevant pieces of evidence that were relied upon by the Commission to establish the duration and the scope of the infringement committed by Rosenlew Saint Frères Emballage


title: Case T-349/15: Action brought on 30 June 2015 — CG v OHIM — Perry Ellis International Group (P PRO PLAYER)

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/79

         Action brought on 30 June 2015 — CG v OHIM — Perry Ellis International Group (P PRO PLAYER)
   (Case T-349/15)
   (2015/C 294/94)
   Language in which the application was lodged: English

      Parties

      Applicant: CG verwaltungsgesellschaft mbH (Gevelsberg, Germany) (represented by: T. Körber, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Perry Ellis International Group Holdings Limited (Nassau, Bahamas)

      Details of the proceedings before OHIM

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

      Trade mark at issue: Figurative mark in black and white containing the word elements ‘P PRO PLAYER’ — Application for registration No 1 0 8 89  764

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 28 April 2015 in Case R 2439/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-94/01 P: Appeal brought on 26 February 2001 by La Poste against the judgment delivered on 14 December 2000 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-613/97 between Union Française de l'Express (UFEX), DHL International, Federal Express International (France) and CRIE and the Commission of the European Communities, supported by the French Republic, Chronopost SA and La Poste

text:
5.5.2001                 EN                   Official Journal of the European Communities                                         C 134/7
—     order the United Kingdom to pay to the Commission of               Appeal brought on 26 February 2001 by La Poste against
      the European Communities, into the account ‘EC own                 the judgment delivered on 14 December 2000 by the
      resources’, a penalty payment of EUR 106 800 for each              Fourth Chamber (Extended Composition) of the Court of
      day of delay in implementing the measures necessary to             First Instance of the European Communities in Case
      comply with the judgment in Case C-56/90 from delivery             T-613/97 between Union Française de l’Express (UFEX),
      of the present judgment until the judgment in Case                 DHL International, Federal Express International (France)
      C-56/90 has been complied with;                                    and CRIE and the Commission of the European Communi-
                                                                         ties, supported by the French Republic, Chronopost SA
                                                                                and La Poste
—     order the United Kingdom to pay the costs.
                                                                                (Case C-94/01 P)
Pleas in law and main arguments
                                                                                (2001/C 134/11)
In its judgment of 14 July 1993, in Case C-56/90 (ECR 1993               An appeal against the judgment delivered on 14 December
p. I-4109), the Court declared that, by failing to take all the          2000 by the Fourth Chamber (Extended Composition) of the
necessary measures to ensure that the quality of the bathing             Court of First Instance of the European Communities in Case
waters in Blackpool and of those adjacent to Southport                   T-613/97 between Union Française de l’Express (UFEX), DHL,
conformed to the limit values set in accordance with Article 3           International, Federal Express International (France) and CRIE
of Council Directive 76/160/EEC of 8 December 1975 con-                  and the Commission of the European Communities, supported
cerning the quality of bathing water, the United Kingdom had             by the French Republic, Chronopost SA and La Poste, was
failed to fulfil its obligations under the EEC Treaty.                   brought before the Court of Justice of the European Communi-
                                                                         ties on 26 February 2001 by La Poste, represented by
                                                                         H. Lehman, Avocat, with an address for service in Luxembourg.
Article 228(1) of the EC Treaty requires a Member State to
take the necessary measures to comply with a judgment by the
Court which finds that it has failed to fulfil an obligation under       The appellant claims that the Court should:
the Treaty.
                                                                         —     set aside the judgment of the Court of First Instance of
                                                                               14 December 2000 in so far as it annuls Article 1 of
There cannot be any doubt that, in the present case, the United                Commission Decision 98/365/EC of 1 October 1997
Kingdom should long since have taken all the necessary                         concerning alleged State aid granted by France to SFMI-
measures to ensure that the quality of the bathing waters in                   Chronopost (1) in so far as it finds that the logistical
Blackpool and of those adjacent to Southport conform to                        and commercial assistance provided by La Poste to its
the limit values set in accordance with Article 3 of the                       subsidiary SFMI-Chronopost does not constitute State aid
aforementioned directive. Over six years had already passed                    to SFMI-Chronopost;
since the Court gave its judgment by the time the Commission
issued its reasoned opinion. At this time, six out of the nine
bathing waters in question still failed to comply with the               —     order Union Française de l’Express, DHL, International,
directive.                                                                     Federal Express International and CRIE to pay the costs
                                                                               incurred by La Poste in the proceedings before both the
                                                                               Court of First Instance and the Court of Justice.
In accordance with Article 228(2) of the EC Treaty, the
Commission asks the Court to impose a penalty payment of
EUR 106 800 on the United Kingdom for each day’s delay in
implementing the Court’s judgment in Case C-56/90, begin-                Pleas in law and main arguments
ning from the day on which the Court gives its judgment in
the present case.                                                        —     Contradictory and insufficient statement of reasons
                                                                               The Court of First Instance purports to apply the private
                                                                               investor test, but instead its method consists in appraising
(1) of 8 December 1975 concerning the quality of bathing water (OJ             the impact of the reserved service. In requiring account
    L 31, 5.2.1976, p. 1).                                                     to be taken of a private undertaking with no reserved
                                                                               sector, the Court of First Instance draws a comparison
                                                                               between public owners and private owners with no
                                                                               reserved sector but does not treat the public owner and
                                                                               the private owner in the same way. A private owner with
                                                                               a reserved sector would never be required to take into
 ---pagebreak--- C 134/8                EN                   Official Journal of the European Communities                                        5.5.2001
      account the impact of the reserved sector when setting its       Galileo International, LLC, established in Rosemount, Illinois,
      charges for services in the competitive sector. It would         United States of America, represented by Mr Richard Plender
      merely be required to comply with Akzo (2), that is to say,      QC, instructed by Ms Katherine Holmes and Mr Daniel Austin,
      to cover at least its variable costs.                            solicitors, of Richards Butler, with an address for service in
                                                                       Luxembourg.
      The judgment does not explain how reserved rights
      affected costs; nor does it indicate how that should have
      been determined.
                                                                       The Appellants seek the following orders from the Court of
—     Infringement of Article 88 EC                                    Justice:
      The judgment disregards the broad discretion attributed
      to the Commission in relation to complex appraisals of           1.    That the Contested Order be set aside.
      an economic nature. However, it is clear from Article 88
      EC that the Commission must enjoy a broad discretion,
      not only in order to assess whether State aid is compatible      2.    That the plea of admissibility raised by the Council
      with the common market, but also to classify a measure                 and supported by the Commission as interveners be
      as State aid when the form of State intervention under                 dismissed.
      investigation is complex.
—     Infringement of Article 87 EC                                    3.    That the Application be declared admissible.
      The judgment errs in holding that all advantages con-
      ferred by the State constitute aid; on the contrary, only        4.    That the case be referred back to the CFI so that the CFI
      the transfer of financial resources may be so classified.              may determine the Application on the merits.
      The judgment has distorted the notion of normal market
      conditions.                                                      5.    That the Council do pay the costs of this appeal and the
                                                                             costs of determining the Council’s plea of admissibility,
                                                                             including the costs of responding to the Commission’s
(1) OJ L 164 of 9.6.1998, p. 37.                                             Statement of Intervention.
(2) Case C-62/86 (1991) ECR I-3359.
                                                                       Pleas in law and main arguments
                                                                       a)    In finding that the contested measure concerns the
Appeal brought on 27 February 2001 by Galileo Company                        applicants in their objective capacity as ‘system’ vendor,
and Galileo International, LLC against the order dated                       in the same way as any other system vendor, the CFI
15 December 2000 of the Second Chamber of the Court                          erred in law in the following material respects:
of First Instance of the European Communities in case
T-113/99 (1) between Galileo Company and Galileo Inter-
national, LLC, supported by Amadeus Global Travel
                                                                             i)    By failing to take into account and apply the
Distribution SA, and Council of the European Union,
                                                                                consistent case law of the Court of Justice that an
supported by Commission of the European Communities
                                                                                individual trader, that forms part of a group of
                                                                                traders that are fixed and identifiable when the
                         (Case C-96/01 P)                                          contested measure is made, may nevertheless be
                                                                                individually concerned by that measure. Such a
                                                                                trader may be individually concerned to the extent
                         (2001/C 134/12)                                           that the measure applies to undertakings engaged in
                                                                                the relevant trade at the time when it was adopted,
An appeal against the order dated 15 December 2000 of the                          and the measure fails to make transitional arrange-
Second Chamber of the Court of First Instance of the European                      ments to protect them against substantial detriment.
Communities in case T-113/99 between Galileo Company and
Galileo International, LLC, supported by Amadeus Global
Travel Distribution SA, and Council of the European Union,                   ii)   By failing to appreciate that the fact that a measure
supported by Commission of the European Communities,                               may be of legislative nature applying to a category
was brought before the Court of Justice of the European                            of traders in general does not prevent it in certain
Communities on 27 February 2001 by Galileo Company,                                circumstances from affecting some of the market
established in Windsor, Berkshire, United Kingdom, and                             participants concerned individualy.


title: Case C-481/14: Judgment of the Court (Fifth Chamber) of 9 June 2016 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Jørn Hansson v Jungpflanzen Grünewald GmbH (Reference for a preliminary ruling — Intellectual and industrial property — Community plant variety rights — Regulation (EC) No 2100/94 — Infringement — Reasonable compensation — Compensation for damage — Costs of proceedings and out-of-court expenses)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/9

         Judgment of the Court (Fifth Chamber) of 9 June 2016 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Jørn Hansson v Jungpflanzen Grünewald GmbH
   (Case C-481/14) (1)

   ((Reference for a preliminary ruling - Intellectual and industrial property - Community plant variety rights - Regulation (EC) No 2100/94 - Infringement - Reasonable compensation - Compensation for damage - Costs of proceedings and out-of-court expenses))
   (2016/C 296/12)
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Jørn Hansson

      Defendant: Jungpflanzen Grünewald GmbH

      Operative part of the judgment

               1.

               Article 94 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the right to compensation which it establishes for the holder of a plant variety right that has been infringed encompasses all the damage sustained by that holder, although that article cannot serve as a basis either for the imposition of a flat-rate ‘infringer supplement’ or, specifically, for the restitution of the profits and gains made by the infringer.

               2.

               The concept of ‘reasonable compensation’, provided for in Article 94(1) of Regulation No 2100/94, must be interpreted as meaning that it covers, in addition to the fee that would normally be payable for licensed production, all damage that is closely connected to the failure to pay that fee, which may include, inter alia, payment of default interest. It is for the referring court to determine the circumstances which require that fee to be increased, bearing in mind that each of them may be taken into account only once for the purpose of determining the amount of reasonable compensation.

               3.

               Article 94(2) of Regulation No 2100/94 must be interpreted as meaning that the amount of the damage referred to in that provision must be determined on the basis of the specific matters put forward in that regard by the holder of the variety infringed, if need be using a lump-sum method if those matters are not quantifiable. It is not contrary to that provision if the costs incurred in an unsuccessful interlocutory application are left out of account in the determination of that damage or if the out-of-court expenses incurred in connection with the main action are not taken into consideration. However, a condition for not taking those expenses into account is that the amount of the legal costs that are likely to be awarded to the victim of the infringement is not such, in view of the sums he has incurred in respect of out-of-court expenses and their utility in the main action for damages, as to deter him from bringing legal proceedings in order to enforce his rights.

      (1)  OJ C 34, 2.2.2015.