title: Case C-112/11: Reference for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 4 March 2011 — ebookers.com Deutschland GmbH v Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e. V.

text:
               11.6.2011

               EN

               Official Journal of the European Union

               C 173/5

         Reference for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 4 March 2011 — ebookers.com Deutschland GmbH v Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e. V.
   (Case C-112/11)
   2011/C 173/08
   Language of the case: German

      Referring court

   Oberlandesgericht Köln

      Parties to the main proceedings

      Applicant: ebookers.com Deutschland GmbH

      Defendant: Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e. V.

      Question referred

   Does Article 23(1) of the Regulation, (1) according to which optional price supplements are to be communicated in a clear, transparent and unambiguous way at the start of any booking process and are to be accepted by the customer on an opt-in basis, also apply to costs connected with air travel arising from services provided by third parties (in this case, an insurer offering travel cancellation insurance) and which are charged to the air traveller by the company organising the air travel together with the air fare as part of a total price?

      (1)  Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community, OJ 2008 L 293, p. 3.


title: Case T-95/15: Action brought on 20 February 2015 — Printeos and Others v Commission

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/36

         Action brought on 20 February 2015 — Printeos and Others v Commission
   (Case T-95/15)
   (2015/C 127/49)
   Language of the case: Spanish

      Parties

      Applicants: Printeos, SA (Alcalá de Henares, Spain), Tompla Sobre Exprés, SL (Alcalá de Henares, Spain), Tompla Scandinavia AB (Stockholm, Sweden), Tompla France SARL (Fleury Mérogis, France), Tompla Druckererzeugnisse Vertriebs GmbH (Leonberg, Germany) (represented by: H. Brokelmann, lawyer, P. Martínez-Lage Sobredo, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               pursuant to Article 263 TFEU, annul Article 2 of Commission Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39780 — Envelopes) in that the determination of the amount of the fines (in particular the adjustment applied on the basis of point 37 of the Guidelines on the method of setting fines) is not explained in the required statement of reasons; or

               —

               in the alternative, in the exercise of its unlimited jurisdiction under Article 31 of Regulation (EC) No 1/2003 on the basis of Article 261 TFEU, amend Article 2 of Commission Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39780 — Envelopes), (i) setting the fine imposed on TOMPLA at least 55 % below the legal ceiling (Article 23(2) of Regulation (EC) No 1/2003) — or, failing that, a percentage which the Court deems appropriate — so as thereby to restore the balance between that fine and the fines imposed on Bong and Hamelin, and (ii) additionally reduce the fine imposed by at least 33 % — or, failing that, by a percentage which the Court deems appropriate — in order to take account of the fine imposed by the Comisión Nacional de la Competencia (CNC) in its Decision of 25 March 2013 in case 5/0316/10, Sobres de Papel; and

               —

               order the Commission to pay the costs of the present proceedings.

      Pleas in law and main arguments

   The decision contested in the present proceedings states that the applicants infringed Article 101 TFEU and Article 53 EEA by participating, from 8 October 2003 until 22 April 2008, in a single and continuous infringement covering Denmark, France, Germany, Norway, Sweden and the United Kingdom in the sector of stock/catalogue and special printed envelopes, consisting in price coordination, customer allocation and exchanges of commercially sensitive information.
   In support of its action, the applicants put forward three pleas in law.

               1.

               First plea in law, alleging that the Commission infringed the duty to state reasons, in that it failed to justify the need to apply an adjustment of the basic amount of the fines pursuant to point 37 of the Guidelines on the method of setting fines, or the specific percentage of the reduction applied to each undertaking.

               2.

               Second plea in law, alleging that the Commission infringed the principle of equal treatment in the determination of the amount of the fine, by applying an adjustment of the basic amount of the fines pursuant to point 37 of the Guidelines on the method of setting fines.

               3.

               Third plea in law, alleging that the Commission infringed the principles of proportionality and non-discrimination in the determination of the amount of the fine, by failing to take into account the fine previously imposed by the Spanish competition authority.


title: Case T-257/13: Judgment of the General Court of 25 February 2015  — Poland v Commission (EAGGF — Guarantee Section — EAGF and EAFRD — Expenditure excluded from the financing — Rural Development — Expenditure effected by Poland — Article 7 of Regulation (EC) No 1258/1999 — Article 31 of Regulation (EC) No 1290/2005 — Effectiveness of checks — Obligation to state reasons — Principle of subsidiarity)

text:
               13.4.2015

               EN

               Official Journal of the European Union

               C 118/26

         Judgment of the General Court of 25 February 2015 — Poland v Commission
   (Case T-257/13) (1)

   ((EAGGF - Guarantee Section - EAGF and EAFRD - Expenditure excluded from the financing - Rural Development - Expenditure effected by Poland - Article 7 of Regulation (EC) No 1258/1999 - Article 31 of Regulation (EC) No 1290/2005 - Effectiveness of checks - Obligation to state reasons - Principle of subsidiarity))
   (2015/C 118/33)
   Language of the case: Polish

      Parties

      Applicant: Republic of Poland (represented by: B. Majczyna and D. Krawczyk, Agents)

      Defendant: European Commission (represented by: P. Rossi and A. Szmytkowska, Agents)

      Re:

   Application for annulment of Commission Implementing Decision 2013/123/EU of 26 February 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2013 L 67, p. 20), so far as concerns the ‘Early retirement’ action sector implemented by the Republic of Poland.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Republic of Poland to pay the costs.

      (1)  OJ C 207, 20.7.2013.


title: Case T-589/14: Action brought on 8 August 2014  — Musso v Parliament

text:
               6.10.2014

               EN

               Official Journal of the European Union

               C 351/22

         Action brought on 8 August 2014 — Musso v Parliament
   (Case T-589/14)
   2014/C 351/28
   Language of the case: French

      Parties

      Applicant: François Musso (Ajaccio, France) (represented by: A. Gross, lawyer)

      Defendant: European Parliament

      Form of order sought

               —

               Admit the present action and declare it well founded;

               —

               Annul the decision of 26 June 2014:

                           —

                           Principally, on the basis of the formal irregularity involving the lack of the President’s signature;

                           —

                           In the alternative, on the basis of infringement of the rights of the defence in that the decision of 17 July 1996 serving as the basis of the decision of 26 June 2014 was not published;

                           —

                           In the further alternative, on the basis of infringement of the adversarial principle;

                           —

                           In the further alternative, on the basis of the insufficient statement of reasons of the decision of 26 June 2014;

                           —

                           In the further alternative, on the basis of infringement of the reasonable time principle affecting the exercise of the rights of the defence;

                           —

                           In the further alternative, on the basis of infringement of the principle of acquired right;

               —

               Reserve to the applicant all other rights, entitlements, pleas and actions to be claimed;

               —

               Order the defendant to pay all the costs of the instance.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a formal irregularity in the contested decision of 26 June 2014, since it was not signed by the President of the Parliament in accordance with the internal rules of the European Parliament.

               2.

               Second plea in law, alleging infringement of the rights of the defence of the applicant, since the decision of 17 July 1996 which served as the basis for the contested decision of 26 June 2014 was not published, in breach of Article 28 of the Rules of Procedure.

               3.

               Third plea in law, alleging infringement of the adversarial principle.

               4.

               Fourth plea in law, alleging an insufficient statement of reasons of the contested decision.

               5.

               Fifth plea in law, alleging infringement of the reasonable time principle, since the Parliament waited eight years before beginning the recovery proceedings against the applicant.

               6.

               Sixth plea in law, alleging infringement of the principle of acquired right, since the contested decision calls into question the pension rights which the applicant acquired on 3 August 1994.


title: Case T-558/15: Action brought on 25 September 2015 — Iran Insurance v Council

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/58

         Action brought on 25 September 2015 — Iran Insurance v Council
   (Case T-558/15)
   (2016/C 027/75)
   Language of the case: English

      Parties

      Applicant: Iran Insurance Company (Tehran, Iran) (represented by: D. Luff, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               order the Council of the European Union to pay the applicant compensation of the material and moral damage incurred by the applicant due to the illegal imposition by the Council of the restrictive measures against the applicant pursuant to the following illegal Council acts: i) Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (1); ii) Council Regulation (EU) no 961/2010 of 25 October 2010 (2); iii) Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (3); iv) Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (4); v) Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (5);

               —

               award damages for a total amount of: i) 84 767,66 UK Pounds plus; ii) 4774 187,07 Euros plus; iii) 1 532 688 USD plus iv) any other amount that may be established in the course of the procedure, covering both the moral damage and the material damage suffered by the applicant as a result of the Council’s illegal acts;

               —

               order that the Council pay the applicant’s costs of this application.

      Pleas in law and main arguments

   In support of the action, the applicant relies on the following arguments.

               1.

               The applicant contends that pursuant to Article 340 TFEU, a victim of a damage caused by an institution of the EU may claim compensation against that institution. Case law specified the conditions for such a claim, which the General Court Judgment of 25 November 2014 in Safa Nicu Sepahan v Council (T-384/11, ECR, EU:T:2014:986) summarizes: a) the institution’s conduct must be unlawful; b) actual damage must have been suffered; and c) there must be a causal link between the conduct complained of and the damage pleaded.

               2.

               The applicant states that the above-mentioned three conditions are met with respect to the applicant’s situation: the Council has committed a ‘serious breach of a rule of law intended to confer rights on individuals within the meaning of the case-law’, as ruled by the General Court in its judgment of 6 September 2013 in Iran Insurance v Council (T-12/11, EU:T:2013:401); the applicant suffered substantial moral and material damage; and such damage is the direct consequence of the illegal sanctions.

               3.

               The applicant also indicates that as further specified in the developments contained in the application, the moral damage suffered by the applicant is quantified to the amount of 1 000 000 Euros; and the material damage, which is quantified by independent auditors, amounts to 84 767,66 UK Pounds plus 3 774 187,07 Euro plus 1 532 688 USD, without prejudice of any additional amount that may be established in the course of the procedure. Therefore, the total amount of the applicant’s claim for damages is 84 767,66 UK Pounds plus 4 774 187,07 Euro plus 1 532 697,01 USD plus any other amount that may be established in the course of the procedure.

      (1)  OJ 2010 L 281, p. 81.

      (2)  Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007, OJ 2010 L 281, p. 1.

      (3)  OJ 2011 L 319, p. 71.

      (4)  OJ 2011 L 319, p. 11.

      (5)  OJ 2012 L 88, p. 1.


title: Case C-20/11: Order of the President of the Court of 15 June 2011 — European Commission v Republic of Poland

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/39

         Order of the President of the Court of 15 June 2011 — European Commission v Republic of Poland
   (Case C-20/11) (1)

   2011/C 269/82
   Language of the case: Polish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 80, 12.3.2011.


28.9.2002              EN                  Official Journal of the European Communities                                  C 233/21
        Removal from the register of Case C-76/02 (1)                         Removal from the register of Case C-121/02 ( 1)
                        (2002/C 233/38)                                                       (2002/C 233/39)
By order of 2 July 2002 the President of the Court of Justice of
the European Communities ordered the removal from the                 By order of 10 July 2002 the President of the Court of Justice
register of Case C-76/02: Commission of the European Com-             of the European Communities ordered the removal from the
munities v Republic of Austria.                                       register of Case C-121/02: Commission of the European
                                                                      Communities v Grand Duchy of Luxembourg.
( 1) OJ C 109 of 4.5.2002.
                                                                      (1 ) OJ C 131 of 1.6.2002.


title: Case C-368/12: Reference for a preliminary ruling from the Cour administrative d’appel de Nantes (France) lodged on 2 August 2012 — Adiamix v Ministre de l’Économie et des Finances

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/24

         Reference for a preliminary ruling from the Cour administrative d’appel de Nantes (France) lodged on 2 August 2012 — Adiamix v Ministre de l’Économie et des Finances
   (Case C-368/12)
   2012/C 295/43
   Language of the case: French

      Referring court

   Cour administrative d’appel de Nantes

      Parties to the main proceedings

      Appellant: Adiamix

      Respondent: Ministre de l’Économie et des Finances

      Question referred

   Is Commission Decision 2004/343/EC of 16 December 2003, (1) on which the payment order at issue is necessarily contingent, valid?

      (1)  2004/343/EC: Commission Decision of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty (OJ 2004 L 108, p. 38).


title: Case T-259/08: Action brought on 2 July 2008 — Global Digital Disc v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/27

         Action brought on 2 July 2008 — Global Digital Disc v Commission
   (Case T-259/08)
   (2008/C 272/53)
   Language of the case: German
   Parties

      Applicant: Global Digital Disc GmbH & Co. KG (Ottendorf-Okrilla, Germany) (represented by: D. Ehle, lawyer)

      Defendant: Commission of the European Communities
   Forms of order sought

               —

               order the defendant to pay the applicant EUR 8 025 495,25 in damages plus 8 % interest from 1 January 2008 onwards;

               —

               declare that the defendant is under an obligation to compensate the applicant for damage incurred after 1 January 2008 and in the future, plus interest;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant seeks compensation for damage it incurred because the Commission failed to impose provisional and definite anti-dumping duties on imports of recordable compact discs (‘CD-R’) from the People's Republic of China, Hong Kong and Malaysia and terminated the anti-dumping proceedings concerning those imports by decision of 3 November 2006 (1).
   The applicant is a company based in Germany which produces CD-Rs and DVD-Rs.
   In its application, the applicant claims that the defendant's administrative and normative conduct during, prior to and following the end of the anti-dumping proceedings concerning imports of CD-Rs from the People's Republic of China, Hong Kong and Malaysia infringed — repeatedly and in a manner that was sufficiently serious — important provisions in anti-dumping law which are intended to confer rights on the applicant. Further, the applicant claims that those sufficiently serious infringements of the law on the part of the Commission caused the applicant significant damage. Finally, the applicant claims that there is a direct causal link between those serious infringements of the law and the damage that has already been caused and the damage still to be expected.

      (1)  Commission Decision of 3 November 2006 terminating the anti-dumping proceeding concerning imports of recordable compact discs (CD+/-R) originating in the People's Republic of China, Hong Kong and Malaysia (OJ 2006 L 305, p. 15).


title: Case C-403/03: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 22 July 2003 in the case of Egon Schempp against Finanzamt München V

text:
13.12.2003              EN                        Official Journal of the European Union                                           C 304/11
      Statements on Articles 3 and 12: With regard to the                 (c)   the intermediary has a right of contribution or recourse
      interpretation of Articles 2 and 10, the Council and the                  against the producer (Paragraph 11(3) of the Danish law
      Commission are in agreement that there is nothing to                      on liability for defective products)?
      prevent individual Member States from laying down in
      their national legislation rules regarding liability for
      intermediaries, since intermediary liability is not covered         Question 5
      by the Directive. There is further agreement that under
      the Directive the Member States may determine rules on
      the final mutual apportionment of liability among several           Does the Directive (Council Directive 85/374/EEC of 25 July
      liable producers (see Article 3) and intermediaries; and            1985 on the approximation of the laws, regulations and
                                                                          administrative provisions of the Member States concerning
                                                                          liability for defective products) preclude a Member State from
2.    Article 13 of the Directive, which provides that:                   maintaining a non-statutory, but case-law-based, rule, which
                                                                          existed before the Directive on liability for defective products,
      ‘This Directive shall not affect any rights which an injured        relating to liability for defective products under which the
      person may have according to the rules of the law of                intermediary — without himself being the producer or treated
      contractual or non-contractual liability or a special liab-         as a producer under Article 3 of the Directive — is responsible
      ility system existing at the moment when this Directive is          for:
      notified’,
                                                                          —     the producer’s liability for defective products under the
does the Directive preclude a Member State from laying down                     Directive on liability for defective products,
legal rules on intermediary liability for defective products
where the intermediary is, as occurred in [Paragraph 3(1)] of             —     the producer’s fault-based liability established in case-law
the Danish law on liability for defective products, defined as                  in respect of liability for defective products resulting in
any person who, in the course of his business, puts a product                   personal injury or damage to consumers’ property,
into circulation without being deemed to be the producer
under the definition thereof in Article 3 of the Directive on             where the case-law-based rule concerned requires that:
liability for defective products?
                                                                          (a)   the intermediary be defined as any person who, in the
                                                                                course of his business, puts a product into circulation
                                                                                without being deemed to be the producer ([Para-
                                                                                graph 3(3)] of the Danish law on liability for defective
Question 4                                                                      products);
                                                                          (b) the producer can be held liable and the intermediary
Does the Directive (Council Directive 85/374/EEC of 25 July                     therefore does not bear responsibility where the producer
1985 on the approximation of the laws, regulations and                          is not held liable (Paragraph 10 of the Danish law on
administrative provisions of the Member States concerning                       liability for defective products);
liability for defective products) preclude a Member State from
laying down a legal rule relating to liability for defective              (c)   the intermediary has a right of contribution or recourse
products, under which the intermediary — without himself                        against the producer (Paragraph 11(3) of the Danish law
being the producer or treated as a producer under Article 3 of                  on liability for defective products)?
the Directive — is responsible for:
                                                                          (1) OJ L 210 of 7.8.1985, p. 29.
—     the producer’s liability for defective products under the
      Directive,
—     the producer’s fault based-liability established in case-law
      in respect of liability for defective products resulting in
                                                                          Reference for a preliminary ruling by the Bundesfinanz-
      personal injury or damage to consumers’ property,
                                                                          hof by order of that Court of 22 July 2003 in the case of
                                                                                Egon Schempp against Finanzamt München V
where the legal rule in question requires that:                                                     (Case C-403/03)
(a)   the intermediary be defined as any person who, in the                                         (2003/C 304/16)
      course of his business, puts a product into circulation
      without being deemed to be the producer ([Paragraph
      3(3)] of the Danish law on liability for defective products);       Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Bundesfinanzhof
(b) the producer can be held liable and the intermediary                  (Federal Finance Court) of 22 July 2003, received at the Court
      therefore does not bear responsibility where the producer           Registry on 29 September 2003, for a preliminary ruling in
      is not held liable (Paragraph 10 of the Danish law on               the case of Egon Schempp against Finanzamt München V on
      liability for defective products);                                  the following questions:
 ---pagebreak--- C 304/12              EN                         Official Journal of the European Union                                         13.12.2003
1.   Is Article 12 of the EC Treaty (as amended by the                        territory of a Member State, of original branded goods
     Treaty of Amsterdam) to be interpreted as meaning that                   (bearing a trade mark within the meaning of the afore-
     Paragraph 1a(1)1, Paragraph 10(1)1 of the Einkommen-                     mentioned directive, the UBL and/or Regulation No 40/
     steuergesetz, to the effect that a taxpayer resident in                  94) which have not been introduced into the EEA by the
     Germany is not entitled to deduct maintenance payments                   proprietor of the trade mark or with his consent, which
     to his divorced spouse resident in Austria whereas he                    come from outside the EEA and which have the customs
     would be entitled to do so were she still resident in                    status of non-Community goods (for example, T 1 or
     Germany, is incompatible therewith?                                      AAD)?
2.   If Question 1 is answered in the negative: is
     Article 18(1)EC to be interpreted as meaning that Para-             (3) Does it make any difference to the answers to Ques-
     graph 1a(1)1, Paragraph 10(1)1 of the Einkommensteuer-                   tions (1) and (2) whether or not, at the time of entering
     gesetz, to the effect that a taxpayer resident in Germany                the abovementioned territory, the final destination of
     is not entitled to deduct maintenance payments for his                   those goods is specified, or that no (purchase) agreement
     divorced spouse resident in Austria whereas he would be                  has or has yet been concluded with a customer in a third
     entitled to do so were she still resident in Germany, is                 country in respect of those goods?
     incompatible therewith?
                                                                         (4) In the context of answering Questions (1), (2) and (3), is
                                                                              it relevant whether there are additional circumstances,
                                                                              such as
                                                                              (a)   the circumstance that the trader, who is the owner
Reference for a preliminary ruling by the Gerechtshof te                            of the goods in question or in any event is entitled
’s-Gravenhage by order of that Court of 28 August 2003                              to dispose of them and/or engages in parallel trade,
in the proceedings between Class International BV and                               is established in one of the Member States;
1. Colgate-Palmolive Company, 2. Unilever NV, 3. Smith-
      kline Beecham PLC, and 4. Beecham Group PLC
                                                                              (b) the circumstance that those goods are being offered
                        (Case C-405/03)                                             for sale or sold by the trader established in a Member
                                                                                State, from that Member State, to another trader
                                                                                established in a Member State, whilst the place of
                        (2003/C 304/17)                                             delivery is not (yet) specified;
                                                                              (c)   the circumstance that those goods are being offered
Reference has been made to the Court of Justice of the                              for sale or sold by the trader established in a Member
European Communities by order of the Gerechtshof te                                 State, from that Member State, to another trader
’s-Gravenhage (Regional Court of Appeal, The Hague) of                              established in a Member State, whilst the place of
28 August 2003, received at the Court Registry on 29 Septem-                        delivery of the goods to be offered for sale or sold in
ber 2003, for a preliminary ruling in the proceedings between                       that way is specified but the final destination is not,
Class International BV and 1. Colgate-Palmolive Company,                            whether or not with the expressly statement or
2. Unilever NV, 3. Smithkline Beecham PLC, and 4. Beecham                           contractual restriction that the goods involved are
Group PLC on the following questions:                                               non-Community (transit) goods;
(1) May the proprietor of a trade mark oppose the introduc-
     tion without his consent of goods from third countries,                  (d) the circumstance that those goods are being offered
     bearing a trade mark within the meaning of the directive                       for sale or sold by the trader established in a Member
     and/or of Regulation No 40/94 (1), into the territory of a                     State to a trader established outside the EEA, whilst
     Member State (in this case the territory of the Netherlands/                   the place of delivery and/or final destination of the
     Benelux countries) in the context of transit or transit                        goods may or may not be specified;
     trade as referred to below?
(2) Does ‘using [a sign] in the course of trade’ within                       (e)   the circumstance that those goods are being offered
     the meaning of the opening words of Article 5(1) in                            for sale or sold by the trader established in a Member
     conjunction with Article 5(3)(b) and (c) of the directive                      State to a trader established outside the EEA, who
     and the opening words of Article 9(1) in conjunction                           the (parallel) trader knows or has serious reason to
     with Article 9(2)(b) and (c) of Regulation No 40/94 cover                      suppose will resell or supply the goods in question
     the storing, in a customs office or warehouse within the                       to ultimate consumers within the EEA?


title: Case C-638/16 PPU: Judgment of the Court (Grand Chamber) of 7 March 2017 (request for a preliminary ruling from the Conseil du Contentieux des Étrangers — Belgium) — X and X v État belge (Reference for a preliminary ruling — Regulation (EC) No 810/2009 — Article 25(1)(a) — Visa with limited territorial validity — Issuing of a visa on humanitarian grounds or because of international obligations — Concept of ‘international obligations’ — Charter of Fundamental Rights of the European Union — European Convention for the Protection of Human Rights and Fundamental Freedoms — Geneva Convention — Issuing of a visa where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights is established — No obligation)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/13

         Judgment of the Court (Grand Chamber) of 7 March 2017 (request for a preliminary ruling from the Conseil du Contentieux des Étrangers — Belgium) — X and X v État belge
   (Case C-638/16 PPU) (1)

   ((Reference for a preliminary ruling - Regulation (EC) No 810/2009 - Article 25(1)(a) - Visa with limited territorial validity - Issuing of a visa on humanitarian grounds or because of international obligations - Concept of ‘international obligations’ - Charter of Fundamental Rights of the European Union - European Convention for the Protection of Human Rights and Fundamental Freedoms - Geneva Convention - Issuing of a visa where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights is established - No obligation))
   (2017/C 144/18)
   Language of the case: French

      Referring court

   Conseil du Contentieux des Étrangers

      Parties to the main proceedings

      Applicants: X and X

      Defendant: État belge

      Operative part of the judgment

   Article 1 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as meaning that an application for a visa with limited territorial validity made on humanitarian grounds by a third-country national, on the basis of Article 25 of the code, to the representation of the Member State of destination that is within the territory of a third country, with a view to lodging, immediately upon his or her arrival in that Member State, an application for international protection and, thereafter, to staying in that Member State for more than 90 days in a 180-day period, does not fall within the scope of that code but, as EU law currently stands, solely within that of national law.

      (1)  OJ C 38, 6.2.2017.


title: Case C-94/13 P: Appeal brought on 26 February 2013 by Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-260/00 Cooperativa San Marco fra Lavoratori della Piccola Pesca — Burano Soc. coop. rl and Others v European Commission

text:
               4.5.2013

               EN

               Official Journal of the European Union

               C 129/7

         Appeal brought on 26 February 2013 by Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-260/00 Cooperativa San Marco fra Lavoratori della Piccola Pesca — Burano Soc. coop. rl and Others v European Commission
   (Case C-94/13 P)
   2013/C 129/13
   Language of the case: Italian

      Parties

      Appellant: Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl and Others (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

      Other parties to the proceedings: European Commission; Italian Republic, Cooperative Pescatori di San Pietro in Volta Soc. Coop. rl and Others

      Form of order sought

               —

               Annul and/or vary the order under appeal and order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of their appeal, the appellants allege errors of law in the application of the principles outlined by the Court of Justice in the judgment in ‘Comitato Venezia vuole vivere’, first, with regard to the obligation to state reasons for the Commission’s decisions on State aid and, second, with regard to the allocation of the burden of proof as to the conditions set out in Article 107(1) TFEU.
   By the order that is the subject of this appeal, the General Court did not follow the rulings of the judgment delivered by the Court of Justice on 9 June 2011 in ‘Comitato Venezia vuole vivere’, in so far as it states that the Commission’s decision ‘must contain in itself all the matters essential for its implementation by the national authorities’. However, even though the decision lacked the matters essential for its implementation by the national authorities, the General Court failed to point to any deficiency in the method used by the Commission in the contested decision, and consequently erred in law.
   On the basis of the principles outlined by the Court in the judgment in ‘Comitato Venezia vuole vivere’, when aid is being recovered, it is the Member State — and not, therefore, the individual beneficiary — which is required to show, in each individual case, that the conditions laid down in Article 107(1) are met. In the present case, however, in the contested decision the Commission failed to clarify the ‘modalities’ of any such verification; consequently, since it did not have available to it, at the time when the aid was to be recovered, the matters essential for the purpose of showing that the advantages granted constituted, in the hands of the beneficiaries, State aid, the Italian Republic — by Law No 228 of 24 December 2012 (Article 1, paragraphs 351 et seq.) — decided to reverse the burden of proof, in breach of Community case-law. According to the Italian legislator, in particular, it is not for the State but for the individual beneficiaries of aid granted in the form of relief to prove that the advantages in question do not distort competition or affect trade between Member States. In the absence of any such proof, there is a presumption that the advantage granted was likely to distort trade and affect trade between Member States. That is contrary to the principles outlined by the Court in its judgment in ‘Comitato Venezia vuole vivere’.


title: Case T-236/01: Action brought on 1 October 2001 by Tokai Carbon Co., Ltd. against the Commission of the European Communities

text:
C 17/14                EN                     Official Journal of the European Communities                                      19.1.2002
Action brought on 1 October 2001 by Tokai Carbon Co.,                    By its action, the applicant does not seek the annulment of the
Ltd. against the Commission of the European Communi-                     decision, but the annulment, or at least the substantial
                               ties                                      reduction, of the fine imposed. The applicant submits that the
                                                                         Commission should not have relied on worldwide turnover or
                                                                         worldwide market share in order to determine the starting
                                                                         level of the fine to be imposed on each of the firms participating
                        (Case T-236/01)                                  in the collusion, but should instead have considered their
                                                                         sales/market share in the EEA for this purpose.
                         (2002/C 17/25)
                                                                         The applicant alleges that, in an attempt to punish the
                                                                         applicant for its participation in the global cartel, but without
                   (Language of the case: English)                       any focus on the limited role it played in Europe, the
                                                                         Commission exceeded its jurisdiction. By relying exclusively
                                                                         on worldwide sales as a measure of each defendant’s capacity
                                                                         to cause harm to competition, the Commission has infringed
                                                                         the EC Treaty by violating the principle ‘ne bis in idem’.
                                                                         Furthermore, by dividing the undertakings concerned into
An action against the Commission of the European Communi-                three categories on the basis of arbitrarily chosen criteria and
ties was brought before the Court of First Instance of the               by punishing the applicant much more harshly than several
European Communities on 1 October 2001 by Tokai Car-                     of the other undertakings, the Commission has infringed
bon Co., Ltd, represented by Mr Gerwin Van Gerven, Mr Tho-               Article 253 EC and the principles of equal treatment and
mas Franchoo and Mr Martijn De Grave of Linklat-                         proportionality.
ers & Alliance, Brussels (Belgium).
                                                                         Finally, the applicant states that the Commission has commit-
The applicant claims that the Court should:                              ted a manifest error of assessment e.g. by attributing an
                                                                         incorrect market share to the applicant and by denying the
                                                                         applicant the benefit of attenuating circumstances, while at the
—     annul Article 3 (and in so far as necessary Article 4) of          same time permitting another firm to benefit from them.
      the Commission decision of 18 July 2001 in Case
      COMP/E-1/36.490 — Graphite electrodes, in so far as it
      imposes a fine of EUR 24.5 million on Tokai, or, at least,
      substantially reduce that fine; and
—     order the Commission to pay the costs.
                                                                         Action brought on 3 October 2001 by Nippon Carbon
                                                                         Co., Ltd. against the Commission of the European Com-
Pleas in law and main arguments                                                                        munities
                                                                                (Case T-244/01)
The applicant is a Japanese company, active in the carbon
industry. In its reply to the Commission’s statement of
objections concerning a cartel in the graphic electrode sector,                                     (2002/C 17/26)
which has also been the subject of parallel investigations in
other states, e.g. in the United States, the applicant acknowl-
edged that its participation in the collusive arrangements
concerned constituted a violation of the EC competition rules.                               (Language of the case: English)
In the contested decision, the Commission found that eight
undertakings, including the applicant, had participated in a             An action against the Commission of the European Communi-
global cartel, the object of which was inter alia to allocate            ties was brought before the Court of First Instance of the
markets on a worldwide level, and thus to withhold competi-              European Communities on 3 October 2001 by Nippon Carbon
tive reserves from the EEA market. The decision imposed fines            Co., Ltd., represented by Mr H. Gilliams of Eubelius Advocaten,
on the companies involved.                                               Brussels (Belgium).


title: Case C-367/11: Judgment of the Court (Fourth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Déborah Prete v Office national de l’emploi (Freedom of movement for persons — Article 39 EC — National of a Member State seeking employment in another Member State — Equal treatment — Tideover allowance for young persons seeking their first job — Grant subject to completion of at least six years’ studies in the host State)

text:
               22.12.2012

               EN

               Official Journal of the European Union

               C 399/6

         Judgment of the Court (Fourth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Déborah Prete v Office national de l’emploi
   (Case C-367/11) (1)

   (Freedom of movement for persons - Article 39 EC - National of a Member State seeking employment in another Member State - Equal treatment - Tideover allowance for young persons seeking their first job - Grant subject to completion of at least six years’ studies in the host State)
   2012/C 399/08
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicant: Déborah Prete

      Defendant: Office national de l’emploi

      Re:

   Reference for a preliminary ruling — Cour de cassation (Belgium) — Interpretation of Articles 12, 17, 18 and 39 EC (now Articles 18, 20, 21 and 45 TFEU) — Tideover allowance for young persons seeking their first job — Grant subject to completion of at least six years’ studies at an educational establishment in the Member State concerned — Refusal to grant it to a national of another Member State who completed her secondary studies in that other State, on the sole ground that the above condition was not fulfilled — Factors to be taken into account to appraise the young person’s link to the national employment market

      Operative part of the judgment

   Article 39 EC precludes a national provision such as that at issue in the main proceedings, which makes the right to a tideover allowance for the benefit of young people looking for their first job subject to the condition that the person concerned has completed at least six years’ studies in an educational establishment of the host Member State, insofar as that condition prevents other representative factors liable to establish the existence of a real link between the person claiming the allowance and the geographic labour market concerned being taken into account and accordingly goes beyond what is necessary to attain the aim pursued by that provision which is to ensure that such a link exists.

      (1)  OJ C 282, 24.9.2011.


title: Case C-391/14: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 18 August 2014  — Api Raffineria di Ancona SpA v Comitato nazionale per la gestione della Direttiva 2003/87/CE e and Others

text:
               20.10.2014

               EN

               Official Journal of the European Union

               C 372/7

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 18 August 2014 — Api Raffineria di Ancona SpA v Comitato nazionale per la gestione della Direttiva 2003/87/CE e and Others
   (Case C-391/14)
   2014/C 372/11
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicant: Api Raffineria di Ancona SpA

      Defendants: Comitato nazionale per la gestione della Direttiva 2003/87/CE, Ministero dell'Ambiente e della Tutela del Territorio e del Mare, Ministero dello Sviluppo Economico

      Questions referred

               1)

               Is European Commission Decision 2013/448/EU (1) of 5 September 2013 invalid for not having taken into account, in the calculation of the allowances to be allocated free of charge, the percentage of emissions associated with waste gas combustion — or steel processing gas — or of emissions associated with the heat produced by cogeneration, thereby infringing Article 290 TFEU and Article 10a(1),(4) and (5) of Directive 2003/87/EC (2), going beyond the limits of the powers conferred by that directive and at variance with its objectives (to encourage more energy-efficient techniques and to protect the needs of economic development and employment)?

               2)

               Is European Commission Decision 2013/448/EU of 5 September 2013 invalid, in the light of Article 6 TEU, on grounds of its inconsistency with Article 1 of the Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) and Article 17 of the ECHR, owing to undue failure to respect the applicant companies’ legitimate expectation of remaining in possession of a good consisting of the number of the allowances allocated to them on a preliminary basis and to which they are entitled on the basis of Directive 2003/87, thereby depriving those companies of the economic benefit associated with that good?

               3)

               Furthermore, is European Commission Decision 2013/448/EU of 5 September 2013 invalid as regards its definition of the cross-sectoral correction factor, given that the decision infringes the second paragraph of Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union owing to its failure to provide an adequate statement of reasons?

               4)

               Is European Commission Decision 2013/448/EU of 5 September 2013 invalid as regards its definition of the cross-sectoral correction factor, given that the decision infringes Article 10a(5) of Directive 2003/87/EC, fails to respect the principle of proportionality enshrined in Article 5(4) TEU and is also vitiated by failure to carry out a proper inquiry and error of assessment, in the light of the fact that the calculation of the maximum number of allowances to be allocated free of charge (relevant for the purposes of defining a uniform cross-sectoral correction factor) did not take into account the effects of the changes in the interpretation of the term ‘combustion plant’ between the first phase (2005-2007) and the second phase (2008-2012) of the implementation of Directive 2003/87/EC?

               5)

               Is European Commission Decision 2013/448/EU of 5 September 2013 invalid as regards its definition of the cross-sectoral correction factor, on grounds of infringement of Articles 10a(5) and 9a(2) of Directive 2003/87/EC, and also on account of the failure to carry out a proper inquiry and error of assessment, in view of the fact that the calculation of the maximum number of allowances to be allocated free of charge (relevant for the purposes of defining a uniform cross-sectoral correction factor) was made on the basis of data, provided by the Member States, which are mutually inconsistent because based on different interpretations of Article 9a(2) of Directive 2003/87/EC?

               6)

               Is European Commission decision 2013/448/EU of 5 September 2013 invalid as regards its definition of the cross-sectoral correction factor, on grounds of infringement of the procedural rules under Articles 10a(1) and 23(3) of Directive 2003/87/EC?

      (1)  Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2013 L 240, p. 27).

      (2)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).


title: Case T-153/12: Action brought on 5 April 2012 — Microsoft v OHIM — Sky IP (SKYDRIVE)

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/14

         Action brought on 5 April 2012 — Microsoft v OHIM — Sky IP (SKYDRIVE)
   (Case T-153/12)
   2012/C 184/26
   Language in which the application was lodged: English

      Parties

      Applicant: Microsoft Corp. (Redmond, US) (represented by: A. Carboni and J. Colbourn, Solicitors)

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

      Other party to the proceedings before the Board of Appeal: Sky IP International Ltd (Isleworth, United Kingdom)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 January 2012 in case R 2293/2010-1, and remit the application to OHIM to allow it to proceed; and

               —

               Order OHIM and any intervening party in this Appeal to bear their own costs and pay the applicant’s costs of these proceedings and those of the appeal before the First Board of Appeal in case R 2293/2010-1 and of Opposition B 1 371 501 before the Opposition Division.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘SKYDRIVE’, for goods and services in classes 9 and 35 — Community trade mark application No 6452411

      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: Community trade mark registration No 3203411 of the word mark ‘SKY’, for amongst others goods and services in classes 9, 35, 38 and 42

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal’s assessment of the likelihood of confusion was flawed. Further or in the alternative, the Board failed to carry out a proper global assessment of the likelihood of confusion.


title: Case F-27/13: Action brought on 27 March 2013 — ZZ v Commission

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/56

         Action brought on 27 March 2013 — ZZ v Commission
   (Case F-27/13)
   2013/C 207/93
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: É. Boigelot, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decisions to downgrade the applicant to grade AD8 under Article 9(1)(f) of Annex IX to the Staff Regulations and a claim for damages for the material and non-material harm allegedly suffered.

      Form of order sought

               —

               annul the decision adopted on 5 June 2012, taken by the tripartite Appointing Authority in the file CMS 08/058 pursuant to which ‘the sanction of downgrading to grade AD8 provided for in Article 9(1)(f) of Annex IX to the Staff Regulations is imposed (on the applicant)’, and with ‘effect one month following the date of signature’;

               —

               annul the decision of 17 December 2012, notified on 18 December 2012, by which the Appointing Authority rejects the applicant’s complaint submitted on 10 October 2012 under the reference R/566/12;

               —

               order the defendant to pay, by way of compensation for material and non-material harm and the adverse effect on the applicant’s career, notionally evaluated at EUR 1, the amount of EUR 20 000, subject to increase or decrease in the course of the proceedings;

               —

               in any event, order the defendant to pay the entire costs, in accordance with Article 87 of the Rules of Procedure of the Civil Service Tribunal.


title: Judgment of the Court (Sixth Chamber) of 4 December 2003 in Case C-448/01 (Reference for a preliminary ruling from the Bundesvergabeamt): EVN AG, Wienstrom GmbH v Republik Österreich, third parties: Stadtwerke Klagenfurt AG and Kärntner Elektrizitäts-AG (Directive 93/36/EEC — Public supply contracts — Concept of the most economically advantageous tender — Award criterion giving preference to electricity produced from renewable energy sources — Directive 89/665/EEC — Public procurement review proceedings — Unlawful decisions — Possibility of annulment only in the case of material influence on the outcome of the tender procedure — Illegality of an award criterion — Obligation to cancel the invitation to tender)

text:
24.1.2004                EN                           Official Journal of the European Union                                                    C 21/5
      Directive 90/219, and by failing to transpose the provisions of               of the assessment of the most economically advantageous tender
      that directive in respect of certain contained use by the Ministry            for a contract for the supply of electricity, an award criterion
      of Defence, the French Republic has failed to fulfil its obligations          with a weighting of 45 % which requires that the electricity
      under that directive;                                                         supplied be produced from renewable energy sources. The fact
                                                                                that that criterion does not necessarily serve to achieve the
2.    Dismisses the remainder of the action;                                        objective pursued is irrelevant in that regard.
3.    Orders each party to bear its own costs.                                      On the other hand, that legislation does preclude such a
                                                                                criterion where
(1) OJ C 369 of 22.12.2001.
                                                                                —      It is not accompanied by requirements which permit the
                                                                                accuracy of the information contained in the tenders to be
                                                                                effectively verified,
                  JUDGMENT OF THE COURT
                                                                                —      it requires tenderers to state how much electricity they can
                           (Sixth Chamber)                                                 supply from renewable energy sources to a non-defined
                                                                                group of consumers, and allocates the maximum number
                        of 4 December 2003                                                 of points to whichever tenderer states the highest amount,
                                                                                where the supply volume is taken into account only to the
in Case C-448/01 (Reference for a preliminary ruling from                                  extent that it exceeds the volume of consumption expected
the Bundesvergabeamt): EVN AG, Wienstrom GmbH v                                            in the context of the procurement.
Republik Österreich, third parties: Stadtwerke Klagenfurt
             AG and Kärntner Elektrizitäts-AG (1)                                   It is for the national court to determine whether, despite the
                                                                                contracting authority’s failure to stipulate a specific supply
(Directive 93/36/EEC — Public supply contracts — Concept                            period, the award criterion was sufficiently clearly formulated to
of the most economically advantageous tender — Award                                satisfy the requirements of equal treatment and transparency of
criterion giving preference to electricity produced from                            procedures for awarding public contracts.
renewable energy sources — Directive 89/665/EEC — Public
procurement review proceedings — Unlawful decisions —                         2.    The Community legislation on public procurement requires the
Possibility of annulment only in the case of material influ-                        contracting authority to cancel an invitation to tender if it
ence on the outcome of the tender procedure — Illegality of                         transpires in review proceedings under Article 1 of Directive
an award criterion — Obligation to cancel the invitation to                         89/665 that a decision relating to one of the award criteria
                                 tender)                                            laid down by that authority is unlawful and it is therefore
                                                                                annulled by the review body.
                            (2004/C 21/09)
                                                                              (1) OJ C 84 of 6.4.2002.
                    (Language of the case: German)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
In Case C-448/01: Reference to the Court under Article 234
EC by the Bundesvergabeamt (Austria) for a preliminary ruling                                          of 27 November 2003
in the proceedings pending before that body between EVN
AG, Wienstrom GmbH and Republik Österreich, third parties:                    in Case C-497/01 (Reference for a preliminary ruling from
Stadtwerke Klagenfurt AG and Kärntner Elektrizitäts-AG, on                    the Tribunal d’arrondissement de Luxembourg): Zita
the interpretation of Article 26 of Council Directive 93/36/                  Modes Sàrl v Administration de l’enregistrement et des
EEC of 14 June 1993 coordinating procedures for the award                                                     domaines (1)
of public supply contracts (OJ 1993 L 199, p. 1) and of
Articles 1 and 2(1)(b) of Council Directive 89/665/EEC of
                                                                              (Sixth VAT Directive — Article 5(8) — Transfer of a
21 December 1989 on the coordination of the laws, regu-
                                                                              totality of assets — Continuation by the transferee in
lations and administrative provisions relating to the application
                                                                              the same branch of business as the transferor — Legal
of review procedures to the award of public supply and public
                                                                                authorisation to pursue the activity)
works contracts (OJ 1989 L 395, p. 33), as amended by
Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts                                              (2004/C 21/10)
(OJ 1992 L 209, p. 1), the Court (Sixth Chamber), composed
of: V. Skouris (Rapporteur), acting for the President of the                                         (Language of the case: French)
Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and
N. Colneric, Judges; J. Mischo, Advocate General; H. A. Rühl,                 (Provisional translation; the definitive translation will be published
Principal Administrator, for the Registrar, has given a judgment                                    in the European Court Reports)
on 4 December 2003, in which it has ruled:
1.    The Community legislation on public procurement does not                In Case C-497/01: Reference to the Court under Article 234
      preclude a contracting authority from applying, in the context          EC by the Tribunal d’arrondissement de Luxembourg (Luxem-


title: Case T-271/13: Action brought on 22 May 2013 — Nutrexpa v OHIM — Kraft Foods Italia Intellectual Property (Cuétara MARÍA ORO)

text:
               27.7.2013

               EN

               Official Journal of the European Union

               C 215/15

         Action brought on 22 May 2013 — Nutrexpa v OHIM — Kraft Foods Italia Intellectual Property (Cuétara MARÍA ORO)
   (Case T-271/13)
   2013/C 215/20
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Nutrexpa, SL (Barcelona, Spain) (represented by: J. Grau Mora, M. Ferrándiz Avendaño and Y. Sastre Canet, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Kraft Foods Italia Intellectual Property Srl (Milan, Italy)

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 March 2013 in Case R 1285/2012-1, whereby it rejected the application for registration of Community figurative trade mark No 9 056 045‘Cuétara MARÍA ORO’ for ‘Preserved and dried fruits; preserved, dried and cooked vegetables’ (Class 29) and ‘Flour and preparations made from cereals, bread, pastry and confectionery, ices; biscuits’ (Class 30), which should consequently be registered by OHIM;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: Figurative mark containing the word elements ‘Cuétara MARÍA ORO’ for goods in Classes 5, 29 and 30 — Application for registration of Community trade mark No 9 056 045

      Proprietor of the mark or sign cited in the opposition proceedings: Kraft Foods Italia Intellectual Property Srl

      Mark or sign cited in opposition: National and Community figurative marks containing the word element ‘ORO’ for goods in Classes 29 and 30

      Decision of the Opposition Division: Opposition upheld in part

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Breach of Article 8(1)(b) of Regulation No 207/2009


               20.3.2014

               EN

               Official Journal of the European Union

               C 81/12

         Request for an Advisory Opinion from the EFTA Court by Héraðsdómur Reykjavíkur dated 5 November 2013 in the case of Gunnar V. Engilbertsson v Íslandsbanki hf.
   (Case E-25/13)
   2014/C 81/11
   A request has been made to the EFTA Court by a letter dated 5 November 2013 from Héraðsdómur Reykjavíkur (Reykjavík District Court), which was received at the Court Registry on 12 November 2013, for an Advisory Opinion in the case of Gunnar V. Engilbertsson v Íslandsbanki hf., on the following questions.

               1.

               Is it compatible with the provisions of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts if the legislation in a State which is a party to the EEA Agreement permits contracts between consumers and suppliers for loans to finance real estate purchases to contain provisions stating that the instalment repayments are to be linked to a predetermined index?

               2.

               If the answer to the first question is that the index-linking of repayments of loans taken to finance real estate purchases is compatible with the provisions of Directive 93/13/EEC, then the second question is: Does the Directive limit the discretion of the EEA State in question to determine, whether through legislation or by means of administrative regulations, the factors that may cause changes in the predetermined index and the methods by which these changes are to be measured?

               3.

               If the answer to the second question is that Directive 93/13/EEC does not restrict the discretion of the Member State referred to in that question, then the third question is: Is a contractual term regarded as having been individually negotiated within the meaning of Article 3(1) of the Directive when: (a) it is stated in the bond which the consumer signs when taking out the loan that his obligation is index-linked and the base index to be used when calculating price changes is specified in the bond; (b) the bond is accompanied by a payment schedule showing estimated and itemised payments to be made on the due dates of the loan, and it is stated in the schedule that these estimates may change in accordance with the indexation provision of the bond; and (c) both the consumer and the lender sign the payment schedule at the same time as the consumer signs the bond?

               4.

               Is the method of calculation of price changes in contracts for loans to finance real estate purchases regarded as having been explicitly explained to the consumer within the meaning of paragraph 2(d) of the Annex to Directive 93/13/EEC when the circumstances are as described in the third question?

               5.

               Does a State that is party to the EEA Agreement have the option, when adopting Article 6(1) of Directive 93/13/EEC, of either prescribing in domestic legislation that unfair contract terms within the meaning of Article 6(1) of the Directive may be declared non-binding on the consumer or prescribing in domestic legislation that such terms shall be non-binding on the consumer at any time?


title: Case T-606/13: Judgment of the General Court of 18 November 2015 — Mustang v OHIM — Dubek (Mustang) (Community trade mark — Opposition proceedings — Application for Community figurative mark Mustang — Earlier national word and figurative marks MUSTANG — No risk of detriment to the reputation of the earlier marks — Article 8(5) of Regulation (EC) No. 207/2009)

text:
               11.1.2016

               EN

               Official Journal of the European Union

               C 7/23

         Judgment of the General Court of 18 November 2015 — Mustang v OHIM — Dubek (Mustang)
   (Case T-606/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark Mustang - Earlier national word and figurative marks MUSTANG - No risk of detriment to the reputation of the earlier marks - Article 8(5) of Regulation (EC) No. 207/2009))
   (2016/C 007/32)
   Language of the case: German

      Parties

      Applicant: Mustang — Bekleidungswerke GmbH & Co. KG (Künzelsau, Germany) (represented by: initially S. Völker, then C. Roos and S. Speckmann, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider and M. Fischer, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Dubek Ltd (Petach Tikva, Israel) (represented by: C. Thomas, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 13 September 2013 (Case R 416/2012-4) relating to opposition proceedings between Mustang — Bekleidungswerke GmbH & Co. KG and Dubek Ltd.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mustang — Bekleidungswerke GmbH & Co. KG to pay the costs.

      (1)  OJ C 39, 8.2.2014.


title: Case C-131/05: Action brought on 21 March 2005 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/14

         Action brought on 21 March 2005 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland
   (Case C-131/05)
   (2005/C 132/27)
   Language of the case: English
   An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 21 March 2005 by the Commission of the European Communities, represented by Mr Michel Van Beek, acting as Agent, assisted by Mr Frédéric Louis, avocat, and Mr Antonio Capobianco, avvocato, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that, in failing to comply with its obligations under Article 6(1) of Council Directive 79/409/EEC on the conservation of wild birds (1) and under Article 12(2) and Article 13(1), both read in conjunction with Article 2(1) of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, (2) the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under these Directives;

               2.

               order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

         Pleas in law and main arguments
   The Commission maintains that:

               —

               by limiting the prohibition contained in Article 6(1) of Directive 79/409/EEC, the Wild Birds Directive, regarding the sale, transport for sale, keeping for sale and the offering for sale of wild birds to species resident in, or visitors to, Great Britain, the United Kingdom has infringed the aforementioned article as the prohibition is clearly intended to cover all species of naturally occurring birds in the wild state in the European territory of the Member Staes to which the Treaty applies;

               —

               by limiting the prohibition contained in Article 12(2) of Directive 92/43/EEC, the Habitats Directive, regarding the keeping, transport and sale or exchange, and offering for sale or exchange of the animal species listed in Annex IV(a) of the Directive to animal species whose natural range includes Great Britain, the United Kingdom has infringed the aforementioned article as, as a consequence of that limitation, the list of protected animal species covered by the UK legislation is shorter than the list in Annex IV of the directive;

               —

               by limiting the prohibition on the trade in plant species contained in Article 13(1) of the Habitats Directive to species ‘whose natural range includes any area in Great Britain as listed in Schedule 4 [of the 1994 Regulations]’ the United Kingdom has infringed the aforementioned Article as, as a consequence of that limitation, the list of protected plant species in Schedule 4 is shorter than the list of protected species in Annex IV(b) of the Habitats Directive.

      (1)  OJ L 103, 25.04.1979, p. 1.

      (2)  OJ L 206, 22.07.1992, p. 7.


title: Case T-325/05: Action brought on 30 August 2005 — TUI AG v OHIM

text:
               15.10.2005

               EN

               Official Journal of the European Union

               C 257/17

         Action brought on 30 August 2005 — TUI AG v OHIM
   (Case T-325/05)
   (2005/C 257/32)
   Language in which the application was lodged: German
   Parties:

      Applicant(s): TUI AG (Hannover, Germany) (represented by D. von Schultz)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought:
   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of OHIM of 25 May 2005 in Case R 183/2004-4;

               —

               require OHIM to register the trade mark ‘Fliegen zum Taxipreis’ applied for under number EU 002851681 for all services covered by the application;

               —

               order OHIM to pay the costs of the appeal procedure and of the present case.

         Pleas in law and main arguments:

      Community trade mark concerned: Word mark ‘Fliegen zum Taxipreis’ for services in Classes 36 and 39 — application No 2 851 681.

      Decision of the Examiner: Rejection of the application in respect of services in Class 39.

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

      Pleas in law: Infringement of Article 7(1)(b) of Council Regulation (EC) No 40/94, as it is incorrect that the trade mark applied for has no distinctive character.


28.7.2001             EN                      Official Journal of the European Communities                                      C 212/27
The applicant claims that the Court should:                              Finally, the applicant does not accept that the letter of intent
                                                                         gave rise to State aid to which the Treaty rules on State aid
—     annul Article 2 of the decision of 29 November 2000 of             applied or that, if there were any such aid, it was incompatible
      the Commission of the European Communities in Case                 with the common market. That question is, however, not of
      No. C32/93 declaring the aid scheme implemented by                 practical concern to the applicant, since, in the applicant’s
      Spain in favour of the shipping company Ferries Golfo de           submissions, no order can lawfully made for the recovery of
      Vizcaya to be incompatible with the common market;                 such aid, if any.
—     order the Commission to pay the costs.
                                                                         (1) Judgment of 28.1.1999 in Case T-14/96, BAI v Commission
                                                                             [1999] ECR II-139.
Pleas in law and main arguments
The applicant, formerly known as Ferries Golfo de Vizcaya
S.A., was granted alleged State aid relating to a new ferry service
between Bilbao (Spain) and Portsmouth (United Kingdom),                         Removal from the Register of Case T-163/00 (1)
pursuant to a letter of intent which was approved by the
Commission in June 1995. That approval decision was                                               (2001/C 212/51)
subsequently annulled by the Court of First Instance (1). The
decision contested in the present case was taken by the                                     (Language of the case: French)
Commission in November 2000 following a re-examination
of the case.                                                             By order of 28 March 2001, the President of the Chamber of
                                                                         the Court of First Instance of the European Communities has
                                                                         ordered the removal from the Register of Case T-163/00,
The applicant alleges that the contested decision is wrong,              Rosemarie Carotti v Court of Auditors of the European
insofar as it concludes that the agreement was not notified in           Communities.
accordance with Article 93(3) [now Article 88(3)] of the Treaty
because it was not notified by the Spanish Government. The
Commission did not raise with the applicant’s lawyers or with            (1) OJ C 247 of 26.8.2000.
the Spanish Government any question about the insufficiency
in law of communication from the prospective beneficiary’s
lawyers, rather than from the Member State concerned, as
‘information’ for the purposes of Article 93(3) of the Treaty.
Furthermore, the information provided by the applicant’s
lawyers was used by the Commission for the purposes of its                      Removal from the Register of Case T-205/00 (1)
decision of June 1995.
                                                                                (2001/C 212/52)
The applicant further submits that a notified State aid that is
the subject of a favourable decision before it is granted is                                (Language of the case: French)
irrecoverable. The beneficiary has a legitimate expectation of
which it cannot be deprived by reason of annulment of the                By order of 27 March 2001, the President of the Chamber of
Commission’s favourable decision on the basis of which the               the Court of First Instance of the European Communities has
beneficiary accepted the aid. Any contrary solution would                ordered the removal from the Register of Case T-205/00,
undermine the entire scheme of State aid rules under the                 Renco SPA against the Council of the European Union.
Treaty and would have manifestly and gravely objectionable
consequences in practice.                                                (1) OJ C 285 of 7.10.2000.


title: Case C-385/14: Request for a preliminary ruling from the Juzgado de lo Mercantil No 9 de Barcelona (Spain) lodged on 12 August 2014  — Youssouf Drame Ba v Catalunya Caixa SA

text:
               3.11.2014

               EN

               Official Journal of the European Union

               C 388/4

         Request for a preliminary ruling from the Juzgado de lo Mercantil No 9 de Barcelona (Spain) lodged on 12 August 2014 — Youssouf Drame Ba v Catalunya Caixa SA
   (Case C-385/14)
   2014/C 388/05
   Language of the case: Spanish

      Referring court

   Juzgado de lo Mercantil No 9 de Barcelona

      Parties to the main proceedings

      Applicant: Youssouf Drame Ba

      Defendant: Catalunya Caixa SA

      Questions referred

   Given that the Spanish system provides in Article 43 of the LEC (1) that, where an individual action is brought concurrently by a consumer, the effect is that that action must be stayed and treated as a preliminary issue pending final judgment in collective proceedings, and that the consumer is bound by the decision in those proceedings without having had the opportunity to put forward the appropriate pleas or adduce evidence with full equality of arms:

               1.

               Can it be considered [that the Spanish legal system provides for] an effective means or mechanism pursuant to Article 7(1) of Directive 93/13? (2)

               2.

               To what extent does the effect of a stay of proceedings preclude a consumer from complaining that the unfair terms included in the contract concluded with him are void, and, therefore, infringe Article 7(1) of the directive?

               3.

               Does the fact that a consumer is unable to dissociate himself from collective proceedings constitute an infringement of Article 7(3) of Directive 93/13?

               4.

               Or, on the other hand, is the effect of a stay of proceedings provided for in Article 43 of the LEC compatible with Directive 93/13 on the grounds that the rights of consumers are fully safeguarded by a collective action, because the Spanish legal system provides for other equally effective procedural mechanisms for the protection of consumers’ rights and by the principle of legal certainty?

      (1)  Ley de Enjuiciamiento Civil (Spanish Code of Civil Procedure).

      (2)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).


title: Case C-439/16 PPU: Judgment of the Court (Fourth Chamber Chamber) of 27 October 2016 (request for a preliminary ruling from the Spetsializiran nakazatelen sad — Bulgaria) — Criminal proceedings against Emil Milev (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in criminal matters — Directive 2016/343/EU — Articles 3 and 6 — Temporal application — Review by the courts of the remand in custody pending trial of an accused — National legislation prohibiting, during the trial stage of the proceedings, inquiry into whether there are reasonable grounds to suspect that the accused has committed an offence — Incompatibility with Article 5(1)(c) and (4) of the European Convention on Human Rights — Discretion left by the national case-law to the national courts to decide whether or not to apply that convention)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/23

         Judgment of the Court (Fourth Chamber Chamber) of 27 October 2016 (request for a preliminary ruling from the Spetsializiran nakazatelen sad — Bulgaria) — Criminal proceedings against Emil Milev
   (Case C-439/16 PPU) (1)

   ((Reference for a preliminary ruling - Urgent preliminary ruling procedure - Judicial cooperation in criminal matters - Directive 2016/343/EU - Articles 3 and 6 - Temporal application - Review by the courts of the remand in custody pending trial of an accused - National legislation prohibiting, during the trial stage of the proceedings, inquiry into whether there are reasonable grounds to suspect that the accused has committed an offence - Incompatibility with Article 5(1)(c) and (4) of the European Convention on Human Rights - Discretion left by the national case-law to the national courts to decide whether or not to apply that convention))
   (2017/C 006/28)
   Language of the case: Bulgarian

      Referring court

   Spetsializiran nakazatelen sad

      Party in the main proceedings

   Emil Milev

      Operative part of the judgment

   The opinion delivered on 7 April 2016 by the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) at the beginning of the transposition period of Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, which confers on the national courts having jurisdiction to hear an action brought against a custody decision the ability to decide whether, during the trial stage of the criminal proceedings, the continued custody of an accused must be subject to a review by the court of whether, in addition, there are reasonable grounds to suspect that he committed the offence with which he is charged is not likely seriously to compromise, after the expiry of the period prescribed for transposition of the directive, the attainment of the objectives prescribed by that directive.

      (1)  OJ C 364, 3.10.2016.


title: Case C-301/16 P: Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 16/03/2016 in Case T-586/14: Xinyi PV Products (Anhui) Holdings Ltd v European Commission

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/32

         Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 16/03/2016 in Case T-586/14: Xinyi PV Products (Anhui) Holdings Ltd v European Commission
   (Case C-301/16 P)
   (2016/C 270/36)
   Language of the case: English

      Parties

      Appellant: European Commission (represented by: T. Maxian Rusche, L. Flynn, Agents)

      Other party to the proceedings: Xinyi PV Products (Anhui) Holdings Ltd

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (Fourth Chamber) of 16 March 2016, notified to the Commission of 17 March 2016, in Case T-586/14 Xinyi PV Products (Anhui) Holdings Ltd v Commission

               —

               reject the first limb of the first plea of the application at first instance as unfounded in law;

               —

               refer the case for the second limb of the first plea and the second to fourth pleas of the application at first instance to the General Court for reconsideration;

               —

               reserve the costs of the proceedings at first instance and on appeal.

      Pleas in law and main arguments

   The Commission maintains that the judgment under appeal should be set aside on the following grounds:
   First, the General Court has misinterpreted the notion ‘carried over from the former non-market economy’ in Article 2(7)(c) third indent of Council Regulation (EC) No 1225/2009 (1) on protection against dumped imports from countries not members of the European Community. That plea comprises five limbs:

               —

               First limb: Measures implementing the five-year plan are carried over from the former non-market economy

               —

               Second limb: The support of strategic business sectors (‘picking winners’) does not constitute a legitimate objective in a market economy

               —

               Third limb: Subsidies in a market economy are not open-ended, but linked to an investment

               —

               Fourth limb: The measures under assessment are not comparable to illegal and incompatible State aid observed in the Union

               —

               Fifth limb: Erroneous interpretation of the notion of ‘non-market economy’

         Second, the judgment is vitiated by lack of reasoning and contradictory reasoning.
   Third, the General Court has committed a number of procedural irregularities:

               —

               First limb: the General Court has ruled on a matter on which it had no jurisdiction (ultra vires), has violated the principle that the subject-matter of an action is defined by the parties, and has violated Article 21 of the Statute of the Court of Justice of the European Union and Articles 44(1) and 48(2) of the Rules of Procedure of the General Court, as they were in force at the time of the introduction of the case at first instance

               —

               Second limb: The Commission has not been heard on the alleged comparability of the State aid mentioned in the judgments quoted in paragraph 66 with the measures under assessment

               —

               Third limb: The General Court has not answered the arguments of the Commission on the definition of ‘non-market economy’.

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community.

      OJ L 343, p. 51


title: Reference for a preliminary ruling from the Länsrätten Stockholm, by order of that court of 13 October 1995, in proceedings brought by V.A.G. Sverige AB (Case C-329/95)

text:
No C 351 /2               EN                     Official Journal of the European Communities                                         30 . 12 . 95
No 547/72 (') and 9a of Regulation ( EEC ) No 2332/89 ( 2 ),                Reference for a preliminary ruling by the Tribunale di
in the light of Article 48 of the EC Treaty in order to                     Genova — Sezione Prima Civile by order of that court of
ascertain                                                                   5 October 1995 in the case of ( 1 ) F.lli Carli SpA ( 2 ) Casa
                                                                            di Speditione Viale sas against Amministrazione delle
                                                                                Finanze
'whether Article 4 of Law No 222/ 1 984 should be so applied                                            ( Case C-333/95 )
as to extend the reference period for the recognition of                                                   95 /C 351 /04
entitlement to invalidity pension where a worker has been in
receipt of unemployment benefit in another Member State
in which such extension is provided for and , if so, whether
such extension should be subject to conditions .'
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Tribunale di
(') OJ , English Special Edition 1972 ( I ), p . 149 .                      Genova — Sezione Prima Civile ( District Court, Genoa ,
( 2 ) o'| No L 224, 2. 8 . 1989, p. 1 .                                     First Civil Section ) of 5 October 1995 , which was received at
                                                                            the Court Registry on 20 October 1995 , for a preliminary
                                                                            ruling in the case of ( 1 ) F.lli Carli SpA ( 2 ) Casa di Speditione
                                                                            Viale sas against Amministrazione delle Finanze on the
                                                                            following questions :
Reference for a preliminary ruling from the Lansratten                      1 . does the suspension of customs duties on imports from
Stockholm, by order of that court of 13 October 1995 , in                         Spain of the agricultural products listed in the Annex to
            proceedings brought by V.A.G. Sverige AB                              the Regulation ( EEC ) No 3835/90 ( } ), as provided for
                                                                                by Article 1 of Regulation ( EEC ) No 3416/91 ( 2 ), also
                           ( Case C-329/95 )                                      apply to imports from Spain of preserved tuna in olive
                             ( 95/C 351 /03 )                                     oil ?
Reference has been made to the Court of Justice of the
European Communities by an order of the Lansratten
( County Administrative Court ) Stockholm of 13 October                     2 . May the competent customs authorities, pursuant
 1995 , which was received at the Court Registry on                               to Article 5 ( 1 ) and ( 2 ) of Regulation ( EEC )
 19 October 1995 , for a preliminary ruling in proceedings                        No 1679/79 ( 3 ), as supplemented by Regulation ( EEC )
brought by V.A.G. Sverige AP> on the following                                    No 1715/90 ( 4 ) and Article 2 of implementing
questions :                                                                       Regulation ( EEC ) No 2164/91 ( s ) initiate action for the
                                                                                recovery of customs duties which were not collected at
                                                                                the time of importation because they were regarded as
 1 . is the requirement of a certificate under the                                having been totally suspended as a result of an erroneous
       Bilregisterkungorelsen (') compatible with the                             interpretation of the Community legislation in force, but
       provisions of Council Directive 70/ 156/EEC (2 ), as                       which subsequently proved to be due on the basis of a
       worded in its latest version ?                                             different interpretation of the same Community
                                                                                legislation provided by the Commission of the EC after
                                                                                consulting its Legal Service , where the person liable
                                                                                observed all the provisions laid down by the rules in
2 . If the answer to question 1 is affirmative, is the                            force as far as his customs declaration was concerned
       requirement in question compatible with Article 30 of                      and it does not appear that that person was aware that
       the Treaty of Rome, or can it be said to constitute a                      the interpretation initially given to the Community
       measure ' having equivalent effect'?                                       legislation by the Italian authorities was erroneous ?
 3 . In the event that the answer to Question 1 is affirmative
       and the answer to Question 2 is that the measure is to be            (')   OJ  No L  370 , p. 126 .
       regarded as a 'measure having equivalent effect', can the            (2)   OJ  No L  324 , p. 11 .
       Swedish certificate requirement be maintained on the                  (•') OJ  No L  197,  p. 1.
       basis of Article 36 ?                                                 (4 ) OJ  No L  160,  p. 1.
                                                                             (■<) Of  No L  201 , p. 16 .
 (') Section 12 , first paragraph , point 9 .
 ( 2 ) OJ , English Special Edition 1970 ( I ), p. 96 .