title: Case T-246/15: Action brought on 15 May 2015 — Ivanyushchenko/Council

text:
               20.7.2015

               EN

               Official Journal of the European Union

               C 236/46

         Action brought on 15 May 2015 — Ivanyushchenko/Council
   (Case T-246/15)
   (2015/C 236/62)
   Language of the case: English

      Parties

      Applicant: Yuriy Volodymyrovych Ivanyushchenko (Yenakievo, Ukraine) (represented by: B. Kennelly and J. Pobjoy, Barristers, and R. Gherson, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 Implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 1) insofar as they apply to the applicant;

               —

               alternatively, declare that Article 1(1) of Council Decision 2014/119/CFSP of 5 March 2014 (as amended) and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are inapplicable insofar as they apply to the applicant by reason of illegality.

               —

               order the Council to pay the costs of the proceedings.

      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 that the Council has failed to identify a proper legal base for the Council Decision (CFSP) 2015/364 (the ‘Decision’) and the Council Implementing Regulation (EU) 2015/357 (the ‘Regulation’) (together the ‘Contested Measures’). Article 29 of the Treaty on the European Union is not a proper legal base for the Decision because the complaint made against the applicant did not identify him as an individual having undermined democracy in Ukraine or deprived the Ukrainian people of the benefits of the sustainable development of their country (within the meaning of Article 23 TEU and the general provisions in Article 21(2) TEU). As the Decision was invalid, the Council could not rely on Article 215(2) of the Treaty on the Functioning of the European Union to enact the Regulation.

               2.

               Second plea in law, alleging that the Council has made manifest errors of assessment in considering that the criterion for listing the applicant in Article 1(1) of Council Decision 2014/119/CFSP of 5 March 2014 (as amended) and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended) was satisfied. The applicant is not subject to criminal proceedings ‘for the misappropriation of public funds or assets’.

               3.

               Third plea in law, alleging that the Council violated the applicant’s right of defence and the right to good administration and effective judicial review. In particular, the Council failed to carefully and impartially examine whether the alleged reasons said to justify redesignation were well founded in light of the representations made by the applicant prior to redesignation.

               4.

               Fourth plea in law, alleging that the Council has failed to comply with its obligations to provide adequate reasons for redesignating the applicant.

               5.

               Fifth plea in law, the Council has infringed, without justification or proportion, the applicant’s fundamental rights, including his right to protection of his property and reputation. The impact of the Contested Measures on the applicant is far-reaching, both as regards to his property, and to his reputation worldwide. The Council has failed to demonstrate that the freezing of the applicant’s assets and economic resources is related to, or justified by, any legitimate aim, still less that it is proportionate to such an aim.

               6.

               Sixth plea in law, raised in support of the declaration of illegality, alleging that if, contrary to the arguments advanced in the second plea, article 1(1) of Council Decision 2014/119/CFSP of 5 March 2014 (as amended) and article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are to be interpreted to capture any investigation by a Ukrainian authority irrespective of whether there is any judicial decision or proceedings underpinning, controlling or overseeing it, the designation criterion would, given the arbitrary width and scope that would result from such a broad interpretation, lack a proper legal base; and/or be disproportionate to the objectives of the Decision and Regulation. The provision would therefore be unlawful.


title: Case C-432/04: Action brought on 7 October 2004 by the Commission of the European Communities against Edith Cresson

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/34

         Action brought on 7 October 2004 by the Commission of the European Communities against Edith Cresson
   (Case C-432/04)
   (2004/C 300/64)
   An action against Edith Cresson was brought before the Court of Justice of the European Communities on 7 October 2004 by the Commission of the European Communities, represented by Hans Peter Hartvig and Julian Currall, acting as Agents, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1.

               declare that Edith Cresson has failed to comply with her obligations under Article 213 EC;

               2.

               consequently, order the forfeiture in part or in whole of Mrs Cresson's pension rights and/or any other benefits linked to those rights or standing in their stead, the Commission leaving it to the discretion of the Court to determine the duration and extent of that forfeiture;

               3.

               order Mrs Cresson to pay the costs.

         Pleas in law and main arguments
   During her term of office as a Member of the Commission, Mrs Cresson engaged in acts of favouritism for the benefit of two personal friends, contrary to the public interest and to her obligations under Article 213 EC. One of them was recruited on the initiative of Mrs Cresson although his profile did not correspond to the various posts to which he was recruited. Protection by Mrs Cresson then became apparent on several occasions even though the work he performed was manifestly inadequate in quality, quantity and relevance. Similarly, again on the initiative of Mrs Cresson, contracts were offered to another of her friends, without corresponding to a request or requirement of the Commission. Mrs Cresson's conduct was not dictated by the interests of the institution but was motivated essentially by the wish to do a favour for those two persons. At the very least, Mrs Cresson did not at any time make inquiries as to the correctness of the decisions made or procedures applied, although such a check was necessary in the case of persons with whom she had relations of friendship. That behaviour thus appears to constitute an act of favouritism or at the least obvious negligence.


title: Case T-236/03: Action brought on 13 June 2003 by Larry Murphy against the Commission of the European Communities

text:
C 239/16                  EN                          Official Journal of the European Union                                        4.10.2003
The applicant claims that the Court should:                                   Pleas in law and main arguments
—      annul the decision contained in Article 2 of Commission
       Decision of 4 April 2003 on the requests received by the               The applicant invokes the same pleas in law as in Case T-218/
       Commission to increase in MAGP IV objectives to take                   03 (1).
       into account improvements on safety, navigation at sea,
       hygiene, product quality and working conditions for
       vessels of more than 12 m in length overall notified                   (1 ) See p. 9 of this Official Journal.
       under document number C(2003) 1113 to reject a safety
       capacity application for a proposed new RSW vessel,
       MFV Antarctic;
—      order the Commission to pay the costs of these proceed-
       ings.
                                                                              Action brought on 13 June 2003 by Larry Murphy against
                                                                                the Commission of the European Communities
Pleas in law and main arguments
                                                                                (Case T-236/03)
The applicant invokes the same pleas in law as in Case T-218/
03 (1).
                                                                                (2003/C 239/31)
( 1) See p. 9 of this Official Journal.
                                                                                (Language of the case: English)
                                                                              An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
                                                                              European Communities on 13 June 2003 by Larry Murphy,
Action brought on 13 June 2003 by Gerard Minihane                             Castletownbere, (Ireland), represented by P. Gallagher and
   against the Commission of the European Communities                         A. Collins, Barristers, and D. Barry, Solicitor.
                             (Case T-235/03)
                                                                              The applicant claims that the Court should:
                            (2003/C 239/30)                                   —      annul the decision contained in Article 2 of Commission
                                                                                Decision of 4 April 2003 on the requests received by the
                      (Language of the case: English)                                Commission to increase in MAGP IV objectives to take
                                                                                into account improvements on safety, navigation at sea,
                                                                                hygiene, product quality and working conditions for
                                                                                vessels of more than 12 m in length overall notified
An action against the Commission of the European Communi-                            under document number C(2003) 1113 to reject a safety
ties was brought before the Court of First Instance of the                           capacity application for a proposed new RSW vessel to
European Communities on 13 June 2003 by Gerard Minihane,                             replace the MFV Menhaden;
Skibbereen, (Ireland), represented by P. Gallagher and A. Col-
lins, Barristers, and D. Barry, Solicitor.                                    —      order the Commission to pay the costs of these proceed-
                                                                                ings.
The applicant claims that the Court should:
—      annul the decision contained in Article 2 of Commission                Pleas in law and main arguments
       Decision of 4 April 2003 on the requests received by the
       Commission to increase in MAGP IV objectives to take
       into account improvements on safety, navigation at sea,
                                                                              The applicant invokes the same pleas in law as in Case T-218/
       hygiene, product quality and working conditions for
                                                                              03 (1).
       vessels of more than 12 m in length overall notified
       under document number C(2003) 1113 to reject a safety
       capacity application in respect of the MFV Deborah M;
                                                                              (1 ) See p. 9 of this Official Journal.
—      order the Commission to pay the costs of these proceed-
       ings.


title: Case T-578/13: Judgment of the General Court of 3 June 2015 — Luxembourg Pamol (Cyprus) and Luxembourg Industries v Commission (Action for annulment — Plant protection products — Publication of documents relating to the inclusion of an active substance — Refusal of the request for confidential treatment of certain information — Contested act not attributable to the defendant — Inadmissibility)

text:
               20.7.2015

               EN

               Official Journal of the European Union

               C 236/37

         Judgment of the General Court of 3 June 2015 — Luxembourg Pamol (Cyprus) and Luxembourg Industries v Commission
   (Case T-578/13) (1)

   ((Action for annulment - Plant protection products - Publication of documents relating to the inclusion of an active substance - Refusal of the request for confidential treatment of certain information - Contested act not attributable to the defendant - Inadmissibility))
   (2015/C 236/49)
   Language of the case: English

      Parties

      Applicants: Luxembourg Pamol (Cyprus) Ltd (Nicosia, Cyprus); and Luxembourg Industries Ltd (Tel Aviv, Israel) (represented by: C. Mereu and K. van Maldegem, lawyers)

      Defendant: European Commission (represented by: G. von Rintelen and P. Ondrůšek, acting as Agents)

      Re:

   Action for the annulment of the decision, notified by letter of the European Food Safety Authority (EFSA) of 8 October 2013, to publish certain parts of documents in respect of which the applicants had requested confidentiality.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders Luxembourg Pamol (Cyprus) Ltd and Luxembourg Industries Ltd to pay the costs, including those relating to the interim proceedings.

      (1)  OJ C 45, 15.2.2014.


title: Reference for a preliminary ruling by the Bayerische Verwaltungsgerichtshof by order of that court of 20 October 1997 in the case of Anton Feyrer against Landkreis Rottal-Inn (also party: Landesanwaltschaft Bayern as representative of the public interest) (Case C-374/97)

text:
C 7/8                 EN                 Official Journal of the European Communities                                 10. 1. 98
Reference for a preliminary ruling by the Bayerische                of 16 September 1997, received at the Court Registry on
Verwaltungsgerichtshof by order of that court of                    4 November 1997, for a preliminary ruling in the case of
20 October 1997 in the case of Anton Feyrer against                 Bezirksregierung Lüneburg (Lüneburg District Authority)
Landkreis Rottal-Inn (also party: Landesanwaltschaft                v. Karl-Heinz Wettwer on the following question
       Bayern as representative of the public interest)             concering Regulation (EEC) No 805/68 (1) as amended by
                        (Case C-374/97)                             Regulation (EEC) No 571/89 (2) and Regulations (EEC)
                                                                    No 572/89 (3) and (EEC) No 719/89 (4):
                           (98/C 7/16)
                                                                    Is entitlement to a beef and veal producers' special
Reference has been made to the Court of Justice of the
                                                                    premium for the year 1991 transferred to a producer to
European Communities by order of the Bayerische
                                                                    whom, during the compulsory stock holding period, the
Verwaltungsgerichtshof (Bavarian Administrative Court)
                                                                    applicant transferred his agricultural holding by way of
of 20 October 1997, received at the Court Registry on
                                                                    anticipated succession and who carried out the prescribed
3 November 1997, for a preliminary ruling in the case of
                                                                    holding and fattening of the bovine animals in question?
Anton Feyrer v. Landkreis Rottal-Inn, represented by the
Landrat (also party: Landesanwaltschaft Bayern as
representative of the public interest) on the following             (1 ) OJ, English Special Edition 1968 (I) p. 187.
questions:                                                          (2 ) OJ L 61, 4. 3. 1989, p. 43.
                                                                    (3 ) OJ L 63, 7. 3. 1989, p. 1.
                                                                    (4 ) OJ L 79, 21. 3. 1989, p. 9.
1. Can an individual oppose the collection of fees higher
    than the standard amounts listed in point 1 of the
    Annex relating to Article 2 (1) of Council Directive
    85/73/EEC (1) as amended by Council Directive 93/
    118/EC (2) where the Member State has not
    transposed Directive 93/118/EC into national law
    within the prescribed period?                                   Action brought on 4 November 1997 by the Commission
                                                                    of the European Communities against the Hellenic
2. Can a Member State collect fees higher than the                                                Republic
    standard amounts in reliance in point 4 (b) of the
    Annex relating to Article 2 (1) of Council Directive                                     (Case C-377/97)
    85/73/EEC as amended by Directive 93/118/EC                                                 (98/C 7/18)
    provided that the fees levied do not exceed the actual
    costs, no further conditions being imposed?
                                                                    An action against the Hellenic Republic was brought
3. Is the authorization given to Member States under                before the Court of Justice of the European Communities
    Article 2 (3) of Council Directive 85/73/EEC as                 on 4 November 1997 by the Commission of the European
    amended by Directive 93/118/EEC to collect an                   Communities, represented by Maria Kondou-Durande, of
    amount exceeding the Community fees dependent on                its Legal Service, with an address for service in
    the total fee collected in the Member State as a whole          Luxembourg at the office of Carlos Gómez de la Cruz, of
    and the actual inspection costs in the Member State as          its Legal Service, Wagner Centre, Kirchberg.
    a whole or is it sufficient, when the Member State has
    delegated authorization to collect the fees to the local
    authorities, that the total fee collected by the local          The applicant claims that the Court should:
    authority is not greater than the actual inspection
    costs of that authority?
                                                                    Ð declare that, by not adopting within the prescribed
(1) OJ L 32, 5. 2. 1985, p. 14.                                          period the laws, regulations and administrative
(2) OJ L 340, 31. 12. 1993, p. 15.                                       provisions necessary to implement Council Directive
                                                                         93/120/EC (1) of 22 December 1993 amending
                                                                         Directive 90/539/EEC (2) on animal health conditions
                                                                         governing intra-Community trade in and imports from
                                                                         third countries of poultry and hatching eggs, the
                                                                         Hellenic Republic has failed to fulfil its obligations
Reference      for    a      preliminary  ruling    by    the            under the Treaty and that Directive,
Bundesverwaltungsgericht by order of that court of
16 September 1997 in the case of Bezirksregierung
           Lüneburg against Karl-Heinz Wettwer                      Ð order the Hellenic Republic to pay the costs.
                        (Case C-376/97)
                           (98/C 7/17)                              Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of                  The time limit for implementation of Directive 93/120/EC
the European Communities by order of the                            expired on 1 January 1995. The Commission notes that
Bundesverwaltungsgericht (Federal Administrative Court)             the Hellenic Republic still has not adopted the appropriate


title: Case T-288/04: Judgment of the Court of First Instance of 9 January 2007 — Van Neyghem v Committee of the Regions of the European Union (Officials — Appointment — Classification in grade and step — Pay slip — Late complaint — Admissibility)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/26

         Judgment of the Court of First Instance of 9 January 2007 — Van Neyghem v Committee of the Regions of the European Union
   (Case T-288/04) (1)

   (Officials - Appointment - Classification in grade and step - Pay slip - Late complaint - Admissibility)
   (2007/C 56/52)
   Language of the case: Dutch
   Parties

      Applicant: Kris Van Neyghem (Tirlemont, Belgium) (represented by: D. Janssens, lawyer)

      Defendant: Committee of the Regions of the European Union (represented by: P. Cervilla, Agent, assisted by B. Wägenbaur and R. Van der Hout, lawyers)
   Re:
   Action for annulment of Decision 87/03 of the Committee of the Regions of 26 March 2003 which definitively classified the applicant in Grade B 5, Step 4.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action as inadmissible.

               2.

               Orders the Committee of the Regions of the European Union to pay all the costs.

      (1)  OJ C 251, 9.10.2004.


title: Case T-8/95 and T-9/95: Judgment of the Court of First Instance of 27 September 2007 — Pelle and Konrad v Council of the European Union and the Commission of the European Communities (Non-contractual liability — Milk — Additional levy — Reference quantity — Regulation (EEC) No 2187/93 — Compensation of producers — Suspension of limitation)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/42

         Judgment of the Court of First Instance of 27 September 2007 — Pelle and Konrad v Council of the European Union and the Commission of the European Communities
   (Case T-8/95 and T-9/95) (1)

   (Non-contractual liability - Milk - Additional levy - Reference quantity - Regulation (EEC) No 2187/93 - Compensation of producers - Suspension of limitation)
   (2007/C 269/76)
   Language of the case: German
   Parties

      Applicants: Wilhelm Pelle (Kluse-Ahlen, Germany) and Ernst-Reinhard Konrad (Löllbach, Germany) (represented by: B. Meisterernst, M. Düsing, D. Manstetten, F. Schulze and W. Haneklaus, lawyers)

      Defendants: Council of the European Union (represented initially by A. Brautigam and A.-M. Colaert, and subsequently by A.-M.Colaert, agents) and the Commission of the European Communities (represented by B. Booß and M. Niejahr, agents, and subsequently by T. van Rijn and M. Niejahr, assisted initially by H.-J. Rabe, G. Berrisch and M. Núñez-Müller, lawyers)
   Re:
   Applications for compensation under Article 178 of the EC Treaty (now Article 235 EC) and under the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) for damage allegedly suffered by the applicants as a result of the application of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Council Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), as supplemented by Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation No 804/68 (OJ 1984 L 132, p. 11).
   Operative part of the judgment
   The Court:

               1.

               Orders the Council and the Commission to make good the damage suffered by Wilhelm Pelle and Ernst-Reinhard Konrad as a result of the application of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector, as supplemented by Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68, in so far as those regulations did not provide for the allocation of a reference quantity to producers who, pursuant to an undertaking given under Council Regulation (EEC) No 1078/77 of 17 May 1977, introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds, did not deliver any milk during the reference year adopted by the Member State concerned;

               2.

               Orders that Wilhelm Pelle, applicant in Case T-8/95, be compensated for losses suffered as a result of the application of Regulation No 857/84 for the period commencing 5 December 1987 and ending 28 March 1989;

               3.

               Orders that Ernst-Reinhard Konrad, applicant in Case T-9/95, be compensated for losses suffered as a result of the application of Regulation No 857/84 for the period commencing 27 November 1986 and ending on 28 March 1989;

               4.

               Requests the parties to inform the Court within six months from the date of delivery of this judgment of the amounts of damages agreed to be payable;

               5.

               Orders that, in the absence of agreement, the parties shall transmit to the Court within the same period a statement of their views with supporting figures;

               6.

               Reserves the costs.

      (1)  OJ C 132, 28.5.2005.


title: Appeal brought on 10 December 1996 by Dafra Lines A/S against the judgment delivered on 8 October 1996 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-24/93 between Compagnie Maritime Belge Transport NV and Compagnie Maritime Belge NV and the Commission of the European Communities, supported by Grimaldi and Cobelfret, T-25/93 between Dafra Lines A/S and the Commission of the European Communities, T-26/93 between Deutsche Afrika-Linien GmbH & Co. and the Commission of the European Communities and T-28/93 between Nedlloyd Lijnen BV and the Commission of the European Communities (Case C-396/96 P)

text:
No C 54/ 12                  EN~1            Official Journal of the European Communities                                  22 . 2 . 97
( b ) that account ought to have been taken of the difficult            Appeal brought on 10 December 1996 by Dafra Lines A/S
      financial position of the appellants, as well as of the           against the judgment delivered on 8 October 1996 by the
      novelty of the alleged infringements, of the regulatory           Third Chamber, Extended Composition, of the Court of
      context in Zaire, and of the cooperative attitude of the          First Instance of the European Communities in Joined
      appellants;                                                       Cases T-24/93 between Compagnie Maritime Beige
                                                                        Transport NV and Compagnie Maritime Beige NV and the
                                                                        Commission of the European Communities, supported by
( c ) that the statement of objections was not addressed to             Grimaldi and Cobelfret, T-25/93 between Dafra Lines A/S
      the appellants but to Cewal , and the statement of                and the Commission of the European Communities, T-26/
      objections threatened to impose fines on Cewal and                93 between Deutsche Afrika-Linien GmbH & Co . and the
      not on its members, and that therefore the                        Commission of the European Communities and T-28/93
      Commission was not entitled thereafter to impose                  between Nedlloyd Lijnen BV and the Commission of the
      fines on some of Cewal 's members without having                                     European Communities
      announced it in the statement of objections;                                           ( Case C-396/96 P )
                                                                                ( 97/C 54/ 19 )
( d ) that no reason is given why 95 % of the fine should
      have been imposed on CMB (which carried 35 % of                   An appeal against the judgment delivered on 8 October
      the trade ) while no fine was imposed on CMZ ( which              1996 by the Third Chamber, Extended Composition, of
      carried 40 % of the trade ); that the only reason is that         the Court of First Instance of the European Communities
      the Commission found it politically difficult to impose           in Joined Cases T-24/93 between Compagnie Maritime
      a fine on a Zairian liner company; that the                       Beige Transport NV and Compagnie Maritime Beige NV
      Commission also wanted to strike a 'political balance '           and the Commission of the European Communities,
      with the fine imposed previously, for a very different            supported by Grimaldi and Cobelfret, T-25/93 between
      behaviour, on the French company Delmas;                          Dafra Lines A/S and the Commission of the European
                                                                        Communities, T-26/93 between Deutsche Afrika-Linien
                                                                        GmbH &C Co . and the Commission of the European
( e ) that also the interest rate applicable to the payment of          Communities and T-28/93 between Nedlloyd Lijnen BV
      the fine ( 13,25% ) is abnormally high .                          and the Commission of the European Communities, was
                                                                        brought before the Court of Justice of the European
                                                                        Communities on 10 December 1996 by Dafra Lines A/S ,
The appellants finally submit that anti-trust procedures                represented by Messrs Michel Waelbroeck and Denis
resulting in the imposition of fines upon companies are                 Waelbroeck, of the Brussels Bar, with an address for
procedures having criminal character within the meaning                 service in Luxembourg at the Chambers of Maitre Ernest
of the ECHR and that therefore the Court of First                       Arendt, 8 — 10 rue Mathias Hardt .
Instance has infringed :
                                                                        The appellant claims that the Court should :
( a ) Article 6 ( 3 ) of the ECHR in so far as the 'cause of the        — quash the judgment of the CFI,
      accusation' has been modified by the Court of First
      Instance;                                                         — annul the contested decision of the Commission,
                                                                        — alternatively, if the decision of the Commission is not
( b ) Article 7 ( 1 ) of the ECHR in so far as the Court of                 annulled in its entirety, annul or, at the very least,
      First Instance has considered that the appellants could               reduce substantially the fine imposed on the appellant,
      be fined, contrary to all existing case-law, for entirely
      novel abuses,           never condemned   before,  and    in      — in any event, order the Commission to pay the costs of
      particular:                                                           the whole procedure .
                                                                        Pleas in law and main arguments adduced in support:
      — their refusal to renounce an exclusivity right
           granted by the State ,                                       In the present appeal the appellants limit themselves to the
                                                                        following points , namely :
      — their meeting competition with an outsider,
           without making losses,                                       — that none of the three alleged abuses which have been
                                                                            held against them by both the Commission and the
                                                                            Court of First Instance can be characterized as such ,
      — their granting loyalty rebates, expressly exempted
           by a group exemption regulation .                            — that the Court of First Instance was wrong in rejecting
                                                                            their arguments as to the collective assessment of their
(') Council Regulation ( EEC ) No 4056/86 of 22 December 1986               dominance,
     laying down detailed rules for the application of Articles 85
     and 86 of the Treaty to maritime transport ( OJ No L 378 ,         — that, at the very least, the fine should be substantially
     31 . 12 . 1986 , p. 4 ).                                               reduced ,
                                                                        — that the appellants' right to a fair hearing have been
                                                                            infringed by the Court of First Instance,
 ---pagebreak--- 22 . 2 . 97             EN                  Official Journal of the European Communities                                          No C 54/ 13
— that the Court of First Instance has infringed the                          must indeed be entitled to meet competition from
      appellants' right to a strict interpretation of criminal                third parties, and that there is in any event no possible
      law provisions .                                                        charge of predation against a dominant firm 's pricing
                                                                              policy above average costs;
In particular, the present appeal is based on the following
grounds:                                                               ( d ) that neither the name given to the practice by Cewal
                                                                              members nor the intention pursued by the parties is
                                                                              relevant in assessing the existence of an abuse; that the
As to the first alleged abuse consisting in ' participating in
                                                                              Commission itself has consistently held that ' it does
the implementation of the Ogefrem Agreement and
                                                                              not consider an intention even by a dominant firm to
insisting repeatedly by a variety of means that it be strictly
                                                                              prevail over its rivals as unlawful '.
complied with ', the appellants respectfully submit:
( a ) that the Court of First Instance in its judgment has not         As to the third alleged abuse resulting from the fact that
      based itself on the previous accusations made by the             100% loyalty agreements were offered by Cewal , the
      Commission but on an entirely new accusation —                   appellants respectfully submit:
      never made before by the Commission , and not
      supported by the facts — and by doing so violated                ( a ) that a condemnation of the appellants ' loyalty rebates
      their rights of defence and their right to a fair trial ;               in this instance means a de facto rewording of Article
                                                                              5 ( 2 ) ( b ) ( i ) of Regulation ( EEC ) No 4056/86 (')
( b ) that the judgment of the Court of First Instance is                     ( which allows expressly conference members 'to
      further affected by a manifest contradiction in                         institute and maintain loyalty arrangements with
      reasoning;                                                              transport users') into a rule saying that 100% loyalty
                                                                              rebates may be offered provided that prevailing
                                                                              marketing conditions are such that the conference is
( c ) that in any event, even if the original accusation had                  not dominant; that according to the Court of First
      not been changed by the Court of First Instance, the                    Instance 's own definition of collective dominance, this
      alleged abuse cannot be held against the appellants;                    will however never be the case and that therefore the
      that the Court of First Instance has entirely ignored                   interpretation given by the Court of First Instance
      the various pleas put forward by the appellants in that                 deprives the regulation of its ' effet utile ';
      respect .
                                                                       ( b ) that even if the Court of First Instance was right in its
As to the second alleged abuse consisting in the so-called                    interpretation of Article 5 ( 2 ) ( b ) ( i ) of the Regulation ,
' fighting ships' practices, the appellants respectfully                      the appellants only failed to comply with an
submit :                                                           1          ' obligation ' attaching to exemption and not with a
                                                                              'condition ' attaching to exemption ; that therefore the
( a ) that the Court of First Instance has interpreted the                    Commission was obliged first to withdraw the benefit
      contested decision as being based on a definition of                    of the block exemption (ex nunc) before
      ' fighting ships' which is diametrically different from                 contemplating the adoption of other measures under
      that contained in the statement of objections; that if                  Article 86 of the EC Treaty if the infringement
      the Court of First Instance is right in this                            continued ( infringement of Articles 7 ( 1 ) and 8 ( 2 ) of
      interpretation of the Decision, it should necessarily                   Regulation ( EEC ) No 4056/86 );
      have     concluded   that   the   decision  offended      the
      appellants ' rights of defence and their right to a fair         ( c ) that, finally, the Court of First Instance has given to
      trial ;                                                                 the decision a meaning which is irreconcilable with its
                                                                              own terms .
( b ) that — alternatively — if the Court of First Instance
      has interpreted wrongly the Commission 's decision , it          As to the applicability of Article 86 of the EC Treaty in
      has modified itself the accusation against the                   case of collective dominance, the appellants respectfully
      appellants in violation of the appellants' rights of             submit :
      defence and to a fair hearing;
                                                                       ( a ) that the Commission 's decision contained no sufficient
( c ) that the appellants have demonstrated that none of the                  reasoning to justify the applicability of Article 86 of
      conditions of the original accusation made against                      the F"C Treaty collectively to the Cewal members and
      them in the statement of objections was met; that the                   that it was not for the Court of First Instance to
      newly defined accusation against the appellants ( as                    supplement or second-guess the reasoning of the
      opposed to the original accusation made in the                          Commission by extracting individual elements from
      statement of objections ) is incompatible with Article 86               the decision to support a collective assessment of their
      of the EC Treaty in so far as it prohibits a conference                 position on the market;
      to merely respond to requests of customers to adapt
      the conference 's tariffs to those of an outsider, without
      having thereby incurred any losses, nor having made               ( b ) that in order to establish a collective dominance, the
      any price discrimination ; that dominant companies                       Court of First Instance has wrongly relied on the fact
 ---pagebreak--- No C 54/ 14               EN                 Official Journal of the European Communities                                            22 . 2 . 97
      that the undertakings in question participated in 'what                — its meeting competition with an outsider, without
      is essentially, if anything at all, an Article 85 practice';                making losses;
( c ) that the Court of First Instance erred in law when it                  — its granting loyalty rebates, expressly exempted by
      decided that concerted behaviour among Cewal                                a group exemption regulation.
      members could be viewed as ' abuses ' within the
      meaning of Article 86 of the EC Treaty, although they             (') Council Regulation ( EEC ) No 4056/86 of 22 December 1986
      were not the result of unilateral conduct by the Cewal                laying down detailed rules for the application of Articles 85
      members;                                                              and 86 of the Treaty to maritime transport ( OJ No L 378 ,
                                                                            31 . 12 . 1986 , p. 4 ).
( d ) that, at the very least, the Court of First Instance has
      not responded to the appellant's pleas in that respect.
Alternatively, the appellant claims that the fine should be
annulled or substantially reduced . Indeed, they have                   Reference for a preliminary ruling by the Tribunale
shown :                                                                 Amministrativo Regionale del Lazio by order of that court
                                                                        of 14 February 1996 in the case of Associazione
                                                                        Produttori Vitivinicoli della Provincia di Treviso and
( a ) that account ought to have been taken of the novelty              Others        against      Ministero        delle  Risorse   Agricole,
      of the alleged infringements, of the regulatory context           Alimentari       e    Forestali      ( Interveners  ad   adiuvandum :
      in Zaire, and of the cooperative attitude of the                  Consorzio Agrario Interprovinciale di Treviso e Belluno
      appellant;                                                                                and Others )
                                                                                ( Case C-398/96 )
( b ) that the statement of objections was not addressed to                                             ( 97/C 54/20 )
      the appellant but to Cewal , and the statement of
      objections threatened to impose fines on Cewal and
      not on its members, and that therefore the                        Reference has been made to the Court of Justice of the
      Commission was not entitled thereafter to impose                  European Communities by order of the Tribunale
      fines on some of Cewal 's members without having                  Amministrativo Regionale ( Regional Administrative
      announced it in the statement of objections ;                     Court), Lazio, of 14 February 1996, received at the Court
                                                                        Registry on 16 December 1996 , for a preliminary ruling in
                                                                        the case       of Associazione          Produttori  Vitivinicoli  della
( c ) that no reason is given why no fine was imposed on                Provincia di Treviso and Others against Ministero delle
      CMZ ( which carried 40% of the trade ); that the only             Risorse Agricole, Alimentari e Forestall ( Interveners ad
      reason is that the Commission found it politically                adiuvandum : Consorzio Agrario Interprovincial di Treviso
      difficult to impose a fine on a Zairian liner company;            e Belluno and Others ) on the following questions:
( d ) that also the interest rate applicable to the payment of          1 . Is Article 39 ( 4 ) of Council Regulation ( EEC ) No 822/
      the fine ( 13,25% ) is abnormally high .                               87 (') which provides that the sole criterion for
                                                                             allocating between the various producers the quantities
                                                                             of table wine for distillation is to be a percentage
The appellant finally submits that anti-trust procedures                     based on the yield per hectare where it exceeds a
resulting in the imposition of fines upon companies are                      certain level — leaving aside the possibility of
procedures having criminal character within the meaning                      interaction with other methods, which take into
of the ECHR and that therefore the Court of First
                                                                             account the production stocks at the close of the wine
Instance has infringed :                                                     year, or any other objective criterion — contrary to
                                                                             the principle of proportionality in that it lays down a
                                                                             single unit of measurement which is essentially
( a ) Article 6 ( 3 ) of the ECHR in so far as the 'cause of the
                                                                             restrictive and inappropriate as a means of restoring
      accusation ' has been modified by the Court of First                   market balance ?
      Instance ;
                                                                        2 . Is the fourth indent of Article 4 ( 2 ) of Regulation
( b ) Article 7 ( 1 ) of the ECHR in so far as the Court of
                                                                             ( EEC ) No 441 /88 ( 2 ) which, for the purposes of the
      First Instance has considered that the Appellant could
                                                                             common market in wine, designates the whole of Italy
      be fined, contrary to all existing case-law, for entirely              as a single production region ( Region 4 ) incompatible
      novel    abuses ,    never condemned       before , and   in
                                                                             with the first subparagraph of Article 4(1 ) which lays
      particular:                                                            down that, in designating the production regions,
                                                                             account must also be taken of ' production and
      — its refusal to renounce an exclusivity right granted                 climatic conditions ', and does it in substance
           by the State ;                                                    circumvent the second subparagraph of Article 4 ( 1 )


title: Case T-343/07: Action brought on 12 September 2007 — allsafe Jungfalk v OHIM (ALLSAFE)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/59

         Action brought on 12 September 2007 — allsafe Jungfalk v OHIM (ALLSAFE)
   (Case T-343/07)
   (2007/C 269/107)
   Language of the case: German
   Parties

      Applicant: allsafe Jungfalk GmbH & Co. KG (Engen, Germany) (represented by D. Jestaedt and J. Bühling, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 July 2007 (R 454/2006-4);

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘ALLSAFE’ for goods and services in Classes 6, 12, 22, 35, 39 and 42 (application No 2 940 534).

      Decision of the Examiner: Refusal of the application.

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

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), since the trade mark applied for does not lack the necessary distinctive character and is not descriptive.

      (1)  Council Regulation (EC) No 40/1994 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case T-525/11: Action brought on 29 September 2011 — Volvo Trademark v OHMI — Hebei Aulion Heavy Industries (LOVOL)

text:
               3.12.2011

               EN

               Official Journal of the European Union

               C 355/25

         Action brought on 29 September 2011 — Volvo Trademark v OHMI — Hebei Aulion Heavy Industries (LOVOL)
   (Case T-525/11)
   2011/C 355/46
   Language in which the application was lodged: English

      Parties

      Applicant: Volvo Trademark Holding AB (Göteborg, Sweden) (represented by: M. Treis, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Hebei Aulion Heavy Industries Co., Ltd (Xuanhua, China)

      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 23 June 2011 in case R 1868/2010-1;

               —

               Reject the Community trade mark application No 5029814; and

               —

               Order the other party to the proceedings to bear the costs of the applicant in connection with the present proceedings, the appeal before the Board of Appeal and the proceedings before the Opposition division.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘LOVOL’, for goods in classes 7 and 12 — Community trade mark application No 5029814

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

      Mark or sign cited in opposition: Community trade mark registration No 2361087, of the word mark ‘VOLVO’, for goods and services in classes 1-9, 11-12, 14, 16-18, 20-22, 24-28 and 33-42; Community trade mark application No 4804522, of the figurative mark ‘VOLVO’, for goods and services in classes 1-4, 6, 7, 9, 11-12, 14, 16, 18, 25, 28, 35-39 and 41; UK trade mark registration No 747361, of the figurative mark ‘VOLVO’, for goods in class 12; UK trade mark registration No 747362, of the word mark ‘VOLVO’, for goods in class 12; UK trade mark registration No 1051579, of the word mark ‘VOLVO’, for goods in class 7; UK trade mark registration No 1408143, of the figurative mark ‘VOLVO’, for goods in class 7

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(5) of Council Regulation No 207/2009, as the Board of Appeal failed to take all relevant factors into account when comparing the marks, thereby mistakenly found that there was no similarity in the marks. Infringement of a rule of law related to the application of the Regulation, and in particular, the principles established by the Court of Justice of the European Union in cases C-361/04 P, Ruiz-Picasso e.a./OHMI of 12 January 2006, ECR I-643 and case C-252/07, Intel Corporation, ECR I-8823, by applying them in a rigidly formalistic manner, and consequently, by not examining the merits of the opposition under Article 8(5) of Council Regulation No 207/2009.


title: Case C-118/15: Order of the President of the Court of 22 February 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Confederación Sindical ELA, Juan Manuel Martínez Sánchez v Aquarbe S.A.U., Consorcio de Aguas de Busturialdea

text:
               6.6.2016

               EN

               Official Journal of the European Union

               C 200/15

         Order of the President of the Court of 22 February 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Confederación Sindical ELA, Juan Manuel Martínez Sánchez v Aquarbe S.A.U., Consorcio de Aguas de Busturialdea
   (Case C-118/15) (1)

   (2016/C 200/21)
   Language of the case: Spanish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 171, 26.5.2015.


title: Case T-40/10: Judgment of the General Court of 6 February 2014 — Elf Aquitaine v Commission (Competition — Agreements, decisions and concerted practices — European markets in tin heat stabilisers and ESBO/esters heat stabilisers — Decision finding two infringements of Article 81 EC and Article 53 of the EEA Agreement — Fines — Application for annulment — Rights of the defence — Late notification of Commission’s investigation — Duration of the administrative procedure — Liability of a parent company for infringements of competition rules committed by its subsidiaries — Presumption of actual exercise of decisive influence — Duration of the infringements — Limitation — Legitimate interest in finding that an infringement was committed — Fines imposed on a parent company differing in amount from those imposed on a subsidiary — Unlimited jurisdiction)

text:
               15.3.2014

               EN

               Official Journal of the European Union

               C 78/7

         Judgment of the General Court of 6 February 2014 — Elf Aquitaine v Commission
   (Case T-40/10) (1)

   (Competition - Agreements, decisions and concerted practices - European markets in tin heat stabilisers and ESBO/esters heat stabilisers - Decision finding two infringements of Article 81 EC and Article 53 of the EEA Agreement - Fines - Application for annulment - Rights of the defence - Late notification of Commission’s investigation - Duration of the administrative procedure - Liability of a parent company for infringements of competition rules committed by its subsidiaries - Presumption of actual exercise of decisive influence - Duration of the infringements - Limitation - Legitimate interest in finding that an infringement was committed - Fines imposed on a parent company differing in amount from those imposed on a subsidiary - Unlimited jurisdiction)
   2014/C 78/13
   Language of the case: French

      Parties

      Applicant: Elf Aquitaine (Courbevoie, France) (represented by: É. Morgan de Rivery, S. Thibault-Liger, A. Noël-Baron, lawyers)

      Defendant: European Commission (represented by: P. Van Nuffel, J. Bourke and A. Biolan, Agents)

      Re:

   Application for annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.589 — Heat Stabilisers), or, in the alternative, for a reduction of the fines imposed.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Elf Aquitaine SA to pay the costs.

      (1)  OJ C 100, 17.4.2010.


title: Case C-466/09 P: Appeal brought on 26 November 2009 by Territorio Histórico de Álava — Diputación Foral de Álava against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 Territorio Histórico de Álava — Diputación Foral de Álava and Others v Commission of the European Communities

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/5

         Appeal brought on 26 November 2009 by Territorio Histórico de Álava — Diputación Foral de Álava against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 Territorio Histórico de Álava — Diputación Foral de Álava and Others v Commission of the European Communities
   (Case C-466/09 P)
   2010/C 37/08
   Language of the case: Spanish

      Parties

      Appellant: Territorio Histórico de Álava — Diputación Foral de Álava (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

      Other parties to the proceedings: Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa, Comunidad Autónoma del País Vasco — Goberierno Vasco, Confederación Empresarial Vasca (Confebask), Commission of the European Communities and Comunidad Autónoma de la Rioja

      Form of order sought

               —

               declare the present appeal to be admissible and well founded;

               —

               set aside the judgment under appeal;

               —

               uphold the application at first instance;

               —

               alternatively, refer the case back to the Court of First Instance and order it to examine the evidence rejected;

               —

               order the Commission to pay the costs of the proceedings at first instance and on appeal.

      Pleas in law and main arguments

               1.

               The CFI erred in law in its reasoning in the judgment under appeal relating to the fact that Case T-30/01 has become devoid of subject-matter.

               2.

               The CFI erred in law by holding that the conclusion of the preliminary examination procedure with respect to the tax measure at issue, prior to the entry into force of Regulation (EC) No 659/1999 (1), required the existence of an express decision by Commission decision to that effect (addressed to the Member State).

               3.

               The CFI misinterpreted the decision of 28 November 2000 by holding that that decision put an end to the preliminary examination procedure of the tax measure at issue which arose out of a complaint lodged in April 1994. The CFI erred in law by not holding that the re-examination of the tax measure at issue in 2000 was to be carried out within the framework of the procedure laid down for existing aid.

               4.

               The CFI erred in law by failing to comply with the procedural rules concerning the burden of proof and the assessment of evidence, in particular with respect to the documentary evidence consisting of the decision of 28 November 2000 (its credibility and probative force). The CFI also infringed the right to a fair trial.

               5.

               The CFI erred in law by infringing the procedural rules relating to the assessment of evidence and the burden of proof with respect to the objective, relevant, corroborative and conclusive evidence in the case-file and which proves that, prior to the decision of 28 November 2000, the Commission had conducted a preliminary examination of the tax measure at issue and had closed that examination. The CFI erred in law by not holding that the re-examination of the tax measure at issue in 2000 had to be conducted within the framework of the procedure laid down for existing aid.

               6.

               The CFI erred in law by failing to comply with the procedural rules regarding the assessment of evidence and by deciding not to require disclosure of the evidence requested by the applicant with respect to certain Commission documents that, in the light of the arguments used by the CFI in order to dismiss the applicant's application, are essential to the defence of its interests. The CFI also infringed the right to a fair trial, the principle of equality of arms and the rights of defence.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case T-196/07: Order of the Court of First Instance of 23 September 2008 — Dyckerhoff Polska v Commission (Action for annulment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 — Decision by the Commission not to raise objections subject to certain conditions — Competence of Member States in the individual allocation of emission allowances — Lack of direct concern — Inadmissibility)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/37

         Order of the Court of First Instance of 23 September 2008 — Dyckerhoff Polska v Commission
   (Case T-196/07) (1)

   (Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)
   (2008/C 301/62)
   Language of the case: Polish
   Parties

      Applicant: Dyckerhoff Polska sp. z o.o. (Sitkówka-Nowiny, Poland) (represented by: P.K. Rosiak and F. Puel, lawyers)

      Defendant: Commission of the European Communities (represented by: U. Wölker and K. Herrmann, Agents)
   Re:
   APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with 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).
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Dyckerhoff Polska sp. z o.o. shall bear its own costs and pay those incurred by the Commission.

      (1)  OJ C 170, 21.7.2007.


title: Case C-530/13: Judgment of the Court (Grand Chamber) of 11 November 2014 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Leopold Schmitzer v Bundesministerin für Inneres (Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(1) and (2)(a) — Article 6(1) — Discrimination based on age — National legislation under which inclusion of periods of study and service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement — Justification — Whether appropriate for the purpose of achieving the objective pursued — Possibility of challenging the extension of the periods for advancement)

text:
               19.1.2015

               EN

               Official Journal of the European Union

               C 16/8

      Judgment of the Court (Grand Chamber) of 11 November 2014 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Leopold Schmitzer v Bundesministerin für Inneres
      (Case C-530/13) (1)

      (Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment in employment and occupation - Article 2(1) and (2)(a) - Article 6(1) - Discrimination based on age - National legislation under which inclusion of periods of study and service completed before the age of 18 for the purpose of determining remuneration is subject to an extension of the periods for advancement - Justification - Whether appropriate for the purpose of achieving the objective pursued - Possibility of challenging the extension of the periods for advancement)
      (2015/C 016/10)
      Language of the case: German

         Referring court

      Verwaltungsgerichtshof

         Parties to the main proceedings

         Applicant: Leopold Schmitzer

         Defendant: Bundesministerin für Inneres

         Operative part of the judgment

                  1.

                  Article 2(1) and (2)(a) and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation which, with a view to ending age-based discrimination, takes into account periods of training and service prior to the age of 18 but which, at the same time, introduces — only for civil servants who suffered that discrimination — a three-year extension of the period required in order to progress from the first to the second incremental step in each job category and each salary group.

                  2.

                  Articles 9 and 16 of Directive 2000/78 must be interpreted as meaning that a civil servant who has suffered age-based discrimination — resulting from the method by which the reference date taken into account for the calculation of his advancement was fixed — must be able to rely on Article 2 of that directive in order to challenge the discriminatory effects of the extension of the period for advancement, even though, at his request, that reference date has been revised.

         (1)  OJ C 15, 18.1.2014.


title: Case C-279/14: Order of the President of the Court of 9 September 2014 (request for a preliminary ruling from the Landgericht Hannover — Germany) — Catharina Smets, Franciscus Vereijken v TUIfly GmbH

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/16

         Order of the President of the Court of 9 September 2014 (request for a preliminary ruling from the Landgericht Hannover — Germany) — Catharina Smets, Franciscus Vereijken v TUIfly GmbH
   (Case C-279/14) (1)

   (2014/C 431/26)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 303, 8.9.2014.


               14.5.2005

               EN

               Official Journal of the European Union

               C 115/41

         Removal from the Register of Case T-151/04 (1)

   (2005/C 115/74)

      (Language of the case: French)

   By order of 14 February 2005, the President of the Fifth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-151/04, Bernard Nonat v Commission of the European Communities.

      (1)  OJ C 168 of 26.6.2004.


title: Case T-147/16: Action brought on 8 April 2016 — Italy v Commission

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/42

         Action brought on 8 April 2016 — Italy v Commission
   (Case T-147/16)
   (2016/C 191/55)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: S. Fiorentino, avvocato dello Stato, G. Palmieri, acting as Agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul European Commission decision No C (2016) 366 final of 28 January 2016, notified on 29 January 2016, by which, in compliance with the judgment of the Court of Justice of 17 November 2011 in Case C-496/09, the Commission ordered the Italian Republic to make penalty payments in the sum of EUR 5 382 000 and EUR 2 106 000, relating to the third and fourth half-years following the delivery of that judgment, respectively;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 14 of Regulation (EC) No 659/1999 of 22 March 1999, misapplication of Article 11 of Regulation (EC) No 794/2004 of 21 April 2004, and infringement of the principle of proportionality as well.

               —

               In that regard, the applicant claims that the contested decision requires interest to be applied at a compound rate to the sums owed by the undertakings in repayment of the State aid, as provided for in Article 11 of Regulation No 794/2004. The Italian Government contests that requirement arguing that, having regard also to the case-law of the Court of Justice of the European Union, interest calculated in such a manner may not be applied in relation to recovery decisions notified before the entry into force of Regulation No 794/2004 or, still less, in relation to decisions notified before the publication of the Commission’s Communication of 2003 on the interest rates to be applied for the recovery of unlawful state aid. On the contrary, relying, as the Commission does in the contested decision, upon an alleged agreement to the contrary, entered into by the Commission itself and the Italian authorities, is of no validity.


title: Judgment of the Court (Sixth Chamber) of 11 September 2003 in Case C-13/01 (Reference for a preliminary ruling from the Giudice di pace di Genova): Safalero Srl v Prefetto di Genova (Directive 1999/5/EC — Radio equipment and telecommunications terminal equipment — Effective judicial protection of rights conferred by the Community legal order — Permissibility of administrative penalties under national legislation — Application to set aside a seizure measure against a third party)

text:
C 264/6                   EN                           Official Journal of the European Union                                              1.11.2003
the interpretation of Articles 2 EC, 28 EC, 29 EC, 31 EC and                                    JUDGMENT OF THE COURT
49 EC, the Court (Third Chamber), composed of:
J.-P. Puissochet (Rapporteur), President of the Chamber, C. Gul-
mann and F. Macken, Judges; A. Tizzano, Advocate General;                                                (Sixth Chamber)
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 11 September 2003, in which it has ruled:
                                                                                of 11 September 2003
1.     Games of chance and gambling constitute economic activities             in Case C-13/01 (Reference for a preliminary ruling from
       within the meaning of Article 2 EC.                                     the Giudice di pace di Genova): Safalero Srl v Prefetto di
                                                                                Genova (1)
2.     The activity of operating gaming machines must, irrespective of         (Directive 1999/5/EC — Radio equipment and telecommuni-
       whether or not it is separable from activities relating to the          cations terminal equipment — Effective judicial protection
       manufacture, importation and distribution of such machines,             of rights conferred by the Community legal order — Per-
       be considered a service within the meaning of the Treaty and,           missibility of administrative penalties under national legis-
       accordingly, it cannot come within the scope of Articles 28 EC          lation — Application to set aside a seizure measure against
       and 29 EC relating to the free movement of goods.                                                   a third party)
3.     A monopoly in the operation of games of chance or gambling                                        (2003/C 264/09)
       does not fall within the scope of Article 31 EC.
                                                                                (Language of the case: Italian)
4.     National legislation such as the Portuguese legislation which
       authorises the operation and playing of games of chance or
                                                                               (Provisional translation; the definitive translation will be published
       gambling solely in casinos in permanent or temporary gaming
                                                                                in the European Court Reports)
       areas created by decree-law and which is applicable without
       distinction to its own nationals and nationals of other Member
       States constitutes a barrier to the freedom to provide services.
       However, Articles 49 EC et seq. do not preclude such national
       legislation, in view of the concerns of social policy and the
       prevention of fraud which justify it.                                   In Case C-13/01: Reference to the Court under Article 234 of
                                                                               the EC Treaty by the Giudice di pace di Genova (Italy) for a
                                                                               preliminary ruling in the proceedings pending before that
                                                                               court between Safalero Srl and Prefetto di Genova, on the
5.     The fact that there might exist, in other Member States,                interpretation of the principles of proportionality, effectiveness
       legislation laying down conditions for the operation and playing        and judicial protection of rights conferred by the Community
       of games of chance or gambling which are less restrictive than          legal order, the Court (Sixth Chamber), composed of:
       those provided for by the Portuguese legislation has no bearing         J.-P. Puissochet, President of the Chamber, R. Schintgen,
       on the compatibility of the latter with Community law.                  C. Gulmann, F. Macken and J.N. Cunha Rodrigues (Rapporte-
                                                                               ur), Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
                                                                               Principal Administrator, for the Registrar, has given a judgment
                                                                               on 11 September 2003, in which it has ruled:
6.     In the context of legislation which is compatible with the EC
       Treaty, the choice of methods for organising and controlling the
       operation and playing of games of chance or gambling, such as
       the conclusion with the State of an administrative licensing            The principle of effective judicial protection of the rights which the
       contract or the restriction of the operation and playing of certain     Community legal order confers on individuals is to be construed, in
       games to places duly licensed for that purpose, falls within the        circumstances such as those in the main proceedings, as not precluding
       margin of discretion which the national authorities enjoy.              national legislation under which an importer cannot bring court
                                                                               proceedings to challenge a measure adopted by the public authorities
                                                                               under which goods sold to a retailer are seized, where there is available
                                                                               to that importer a legal remedy which ensures respect for the rights
                                                                               conferred on him by Community law.
(1) OJ C 61 of 24.2.2001.
                                                                               (1) OJ C 79 of 10.3.2001.


title: Case T-82/07: Action brought on 14 March 2007 — Kliq (in liquidation) v Commission

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/24

         Action brought on 14 March 2007 — Kliq (in liquidation) v Commission
   (Case T-82/07)
   (2007/C 117/38)
   Language of the case: Dutch
   Parties

      Applicants: Jan Rudolf Maas and Cornelis Van den Bergh, acting in their capacity as receivers in the liquidation proceedings relating to Kliq B.V., a private company with limited liability (Apeldoorn, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the Commission's decision of 19 July 2006 in Case C 30/2005;

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicants are challenging Commission Decision 2006/939/EC of 19 July 2006 on the aid measure notified by the Netherlands for KG Holding NV (1).
   That aid measure related to restructuring aid which the Netherlands wished to grant to KG Holding NV by converting a previously approved rescue loan and the interest payable thereon into equity capital. In the contested decision, the Commission declares the aid measure, in the form of restructuring aid, to be incompatible with the common market.
   The Commission also rules that the Netherlands must recover from KG Holding NV and its subsidiary Kliq BV that portion of the aid which KG Holding NV had transferred to Kliq BV as a rescue loan and which had been converted into equity capital, and that the Netherlands are required to register with the receivers their claim against KG Holding NV and/or Kliq Reïntegratie as a creditor in the liquidation proceedings.
   In support of their application, the applicants submit, first, that the Commission erred in its claim regarding the full payment of KG Holding's shares in Kliq BV through set-off of the obligation to make full payment against KG Holding's claim against Kliq BV under the loan agreement. That, it is claimed, did not form any part of the decision of 5 August 2005 (2) which initiated the proceedings. The Commission, it is alleged, misused its powers and acted in a manner contrary to the rights of the defence and the applicants' right to be heard. Second, the Commission, it is alleged, was wrong to find that Kliq B.V. was to be regarded as a recipient of State aid in the amount of EUR 9.25 million. In its appraisal, the Commission wrongly failed to take account of the fact that the ‘conversion of the rescue loan into equity capital’, as referred to in points (43) to (46) of the contested decision, cannot in any wise whatsoever be attributed to the Member State of the Netherlands and therefore cannot be classified as State aid within the terms of Article 87(1) EC. In this connection, it is argued, the Commission committed errors in its appraisal of the facts. In the view of the applicants, the contested decision is therefore legally and/or factually incorrect, or at any rate incomprehensible and/or incorrect or inadequately reasoned and at variance with Article 87 EC and/or Article 253 EC.
   Third, it is alleged that the Commission wrongly failed to establish that the alleged aid might be liable to have an adverse effect on competition and trade between Member States; at any rate, the Commission's findings on this point are not adequately reasoned.
   Fourth, the Commission is alleged to have erred in its determination that the alleged aid in the amount of EUR 9.25 million must be recovered by the Netherlands from KG Holding and Kliq BV. By reason of the liquidation of KG Holding, Kliq Reïntegratie and Kliq BV, recovery of amounts of alleged aid will, it is argued, be definitively impossible and has in any event become pointless in the sense that recovery through registration in the liquidation proceedings relating to those companies is unnecessary and, indeed, entirely superfluous for the purpose of putting an end to the distortion of competition.
   Fifth, it is submitted that the Commission erred in its decision that the amount to be recovered from KG Holding and Kliq BV also includes interest from the date on which the individual portions of that amount were made available to the recipients up to the date on which the money is actually repaid. That requirement, it is argued, is at variance with national bankruptcy law.

      (1)  OJ 2006 L 366, p. 40.

      (2)  State aid No C 30/2005 (ex N 78/2004) — Restructuring aid to KG Holding N.V. — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (OJ 2005 C 280, p. 2).


title: Case C-506/17: Action brought on 18 August 2017 — European Commission v Republic of Slovenia

text:
               23.10.2017

               EN

               Official Journal of the European Union

               C 357/6

         Action brought on 18 August 2017 — European Commission v Republic of Slovenia
   (Case C-506/17)
   (2017/C 357/08)
   Language of the case: Slovene

      Parties

      Applicant: European Commission (represented by: E. Sanfrutos Cano, M. Žebre)

      Defendant: Republic of Slovenia

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that the Republic of Slovenia, by failing to adopt, in respect of the landfill sites Dragonja, Dvori, Rakek — Pretržje, Bukovžlak — Cinkarna, Suhadole, Lokovica, Mislinjska Dobrava, Izola, Mozelj, Dolga Poljana, Dolga vas, Jelšane, Volče, Stara gora, Stara vas, Dogoše, Mala gora, Tuncovec — steklarna, Tuncovec — OKP, and Bočna — Podhom, the necessary measures, in accordance with Articles 7(g) and 13 of that directive, to close down as soon as possible the sites which had not been granted, in accordance with Article 8 of the directive, a permit to continue to operate, has failed to fulfil its obligations under Article 14(b) of Directive 1999/31/EC;

               —

               declare that the Republic of Slovenia, [by failing] to adopt, with regard to the Ostri Vrh landfill site, the necessary measures authorising the necessary works and fixing a transition period for completely implementing the conditioning plan and bringing the facility into compliance with the requirements of Directive 1999/31/EC, with the exception of the requirements in Annex I, point 1, within eight years of the date stipulated in Article 18(1) of that directive, has failed to fulfil its obligations under Article 14(c) of Directive 1999/31/EC;

               —

               order the Republic of Slovenia to pay the costs.

      Pleas in law and main arguments

               1.

               In accordance with Article 14 of Directive 1999/31/EC (‘the directive’), Member States were required to take measures in order that existing landfill sites — ie, ‘landfills which [had] been granted a permit, or which [were] already in operation at the time of transposition of [the] Directive’, that being 16 July 2001 (in Slovenia’s case 1 May 2004, the date of its accession to the EU) — were examined in the light of the requirements of the directive and, on the basis of such an evaluation, were closed down as soon as possible or were guaranteed to comply with the requirements of the directive within a transitional period of eight years, which expired on 16 July 2009. That deadline applied also to Slovenia, which, in that respect, was not given a transitional period under the Accession Treaty.

               2.

               In the light of the Republic of Slovenia’s declarations in the pre-litigation phase, and taking into account the decisions of the Slovenian administrative bodies as set out in the individual permits authorising the operation of the facilities during the closure and after-care procedures, the Commission correctly observes that, as regards seven landfill sites (Mislinjska Dobrava, Volče, Izola, Dragonja, Dvori, Mozelj, Tuncovec — OKP), the closure works are still being carried out. This is why the Commission concludes that, as regards those landfill sites, the Republic of Slovenia has not yet fulfilled its obligations under Article 14(b) of the directive.

               3.

               After analysing all the information available, and taking into consideration the Republic of Slovenia’s declarations in the pre-litigation phase and the lack of any evidence to the contrary, it appears that five landfill sites (Bočna — Podhom, Dogoše, Mala gora, Tuncovec — steklarna and Stara vas) — despite the Republic of Slovenia’s claims that closure is largely complete — have not yet received a definitive decision on closure, as required by Article 14(b) read in conjunction with Article 13(b) of the directive. The Commission deduces from this, therefore, that the Republic of Slovenia, as regards those five landfill sites, has not yet fulfilled its obligations under Article 14(b) of the directive.

               4.

               After analysing all the information available, and taking into consideration the Republic of Slovenia’s declarations in the pre-litigation phase and the lack of any evidence to the contrary, it appears that eight landfill sites (Dolga vas, Jelšane, Stara gora, Rakek — Pretržje, Lokovica, Dolga Poljana, Bukovžlak Cinkarna, Suhadole), have not yet received a definitive decision on closure, as required by Article 14(b) read in conjunction with Article 13(b) of the directive. It also appears that the closure works are still ongoing. The Commission deduces from this, therefore, that the Republic of Slovenia, as regards those eight landfill sites also, has not yet fulfilled its obligations under Article 14(b) of the directive.

               5.

               The Republic of Slovenia has never provided any evidence to demonstrate that an environmental permit for the continued operation of the Ostri Vrh landfill site was issued within the deadline for replying to the additional reasoned opinion (that is, before the day on which the present action was commenced), so that the Member State would have fulfilled its obligations under Article 14(c). In addition, the Commission notes that the permit subsequently obtained, granting permission to operate during the closure procedure and afterwards, shows that the closure works are still ongoing and must be completed by 30 May 2019, which indicates that the Republic of Slovenia has in no way fulfilled its obligations under Article 14 of the directive.


title: Case T-172/04: Judgment of the Court of First Instance of 27 September 2006 — Telefónica v OHIM — Branch (emergia) (Community trade mark — Opposition proceedings — Application for the figurative Community trade mark emergia — Earlier word Community trade mark EMERGEA — Likelihood of confusion — Refusal to register — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/44

         Judgment of the Court of First Instance of 27 September 2006 — Telefónica v OHIM — Branch (emergia)
   (Case T-172/04) (1)

   (Community trade mark - Opposition proceedings - Application for the figurative Community trade mark emergia - Earlier word Community trade mark EMERGEA - Likelihood of confusion - Refusal to register - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2006/C 294/93)
   Language of the case: Spanish
   Parties

      Applicant: Telefónica, SA (Madrid, Spain) (represented by: A. Sirimarco, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Laporta Insa, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: David Branch (Reading, United Kingdom) (represented by: initially, C. Berenguer Marsal, and subsequently, I.M. Barroso Sánchez-Lafuente and M.C. Trullols Durán, lawyers)
   Re:
   Action for annulment of the decision of the First Board of Appeal of OHIM of 12 March 2004 (Case R 676/2002-1) relating to opposition proceedings between David Branch and Telefónica, SA.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 179, 10.07.2004.