title: Case C-271/03: Action brought on 21 June 2003 by Ireland against the Commission of the European Communities

text:
23.8.2003             EN                         Official Journal of the European Union                                         C 200/17
Does subparagraph (a) of the first paragraph of Article 13C of           As regards hazardous waste transported directly by its
the Sixth Council Directive (77/388/EEC) of 17 May 1977 on               producer, the same provision of the Italian decree establishes
the harmonisation of the laws of the Member States relating to           a further exemption from the requirement of registration in
turnover taxes — Common system of value added tax (1),                   the register referred to above, which applies to undertakings
permit a Member State which has exercised the power to allow             that transport less than 30 litres or 30 kg of waste per day.
taxpayers a right of option for taxation in cases of letting and
leasing of immovable property to make full deduction of the
input VAT conditional upon non-retroactive approval of the tax           In sum, the requirement in question is limited to the collection
authorities first being obtained?                                        and transportation of hazardous waste, except in cases where
                                                                         the collection or transportation of such waste is carried out by
                                                                         its producer in quantities below a certain daily limit, and to
(1) OJ L 145, 13.06.1977, p. 1.                                          the collection and transportation of non-hazardous waste on
                                                                         behalf of others.
                                                                         That is clearly inconsistent with the directive. According to
                                                                         Article 12 of the directive, all undertakings, without distinc-
                                                                         tion, which on a professional basis collect or transport waste
                                                                         of any kind, whether hazardous or non-hazardous, must,
                                                                         where not subject to authorisation, be registered with the
Action brought on 23 June 2003 by the Commission of                      competent authorities.
   the European Communities against the Italian Republic
                                                                         (1) OJ L 194, 25.07.1975, p. 39.
                                                                         (2) OJ L 78, 26.03.1991, p. 32.
                          (Case C-270/03)
                          (2003/C 200/30)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 23 June
2003 by the Commission of the European Communities,                      Action brought on 21 June 2003 by Ireland against the
represented by L. Visaggio and R. Amorosi, acting as Agents.                      Commission of the European Communities
The applicant claims that the Court should:
                                                                                (Case C-271/03)
—     declare that, by permitting undertakings, under
      Article 30(4) of Legislative Decree No 22, of 5 February                                     (2003/C 200/31)
      1997, as amended by Law No 426, of 9 December 1998,
      to collect and transport their own non-hazardous waste,
      as an ordinary activity, without requiring them to be
      registered in the national register of undertakings carrying       An action against the Commission of the European Commu-
      out waste disposal services, and, in addition, by permit-          nities was brought before the Court of Justice of the European
      ting undertakings to transport their own hazardous waste           Communities on 21 June 2003 by Ireland, represented by
      in quantities of less than 30 kg and 30 litres per day,            D.J. O'Hagan, acting as agent, assisted by P. Gallagher SC,
      without requiring them to be entered in that register, the         P. McGarry, Barrister and J. Buttimore of the Office of the
      Italian Republic has failed to fulfil its obligations under        Attorney General, with an address for service in Luxembourg.
      Article 12 of Directive 75/442/EEC (1) on waste, as
      amended by Directive 91/156/EEC (2);
                                                                         The Applicant claims that the Court should:
—     order the Italian Republic to pay the costs.
                                                                         a)    declare the action admissible;
                                                                         b)    annul Commission Decision C(2003)1084 reducing assis-
                                                                               tance granted from the European Regional Development
Pleas in law and main arguments                                                Find (ERDF) to the Global Grant Scheme for Private
                                                                               Sector Tourism and Development, Operational Programme
                                                                               for Tourism (1989-1993) sub-programme 2, in Ireland
As regards non-hazardous waste, Article 30(4) of the Legisla-                  under Commission Decision C89(2258/7) of 21 December
tive Decree expressly exempts undertakings which, on their                     1989;
own account, collect and transport non-hazardous waste in
the course of their particular occupational activities from the
requirement of registration in the national register of under-           c)    order the Commission to bear the costs of the proceed-
takings carrying out waste disposal services.                                  ings.
 ---pagebreak--- C 200/18                 EN                        Official Journal of the European Union                                            23.8.2003
Pleas in law and main arguments                                            not developed until several years after the conclusion of the
                                                                           projects in issue in circumstances where the procedures used
                                                                           were at all times in accordance with best practice at the time
The Applicant submits that Commission Decision                             as approved by the Commission amounts to a retrospective
C(2003)1084 should be annulled on the following grounds:                   application of Community rules by the Commission.
I. Manifest error of approach or assessment by the Commis-                 IV. Breach of the principle of proportionality and/or the
    sion                                                                         principles in relation to the imposition of penalties
a)      The Irish Authorities do not accept the validity of the            The Commission clearly had available alternatives to the deci-
        extrapolation exercise purportedly carried out by the              sion adopted in this case. The approach adopted by the
        Commission and submit that extrapolation is not an                 Commission is out of all proportion to the result intended to
        acceptable methodology for establishing a monetary                 be achieved having regard to the ongoing efficacy of the
        repayment value in the case of very broadly-based grant            projects in issue and the nature of the project beneficiary.
        schemes such as the Operational Programme for Tourism,             Such an approach effectively amounts to the imposition of a
        1989 — 1993. Further, it is submitted that the Commis-             penalty in circumstances where there is no evidence of any
        sion has failed to identify the legal basis on which the           wrongdoing on the part of any undertaking or authority.
        extrapolation exercise it has purported to carry out is
        based.
                                                                           (1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
                                                                               laying down provisions for implementing Regulation (EEC)
                                                                               No 2052/88 as regards coordination of the activities of the
b)      The application by the Commission of its own definition                different Structural Funds between themselves and with the opera-
        of the meaning of the terms of Article 23 of Regulation                tions of the European Investment Bank and the other existing
        4253/88 (1) in a manner that permits it to extend the                  financial instruments OJ L 374, 31.12.1988, p. 1-14.
        scope of its powers amounts to an infringement of the
        express provisions of that article and constitutes a mani-
        fest error of assessment on the part of the Commission in
        the exercise of its discretion pursuant to Article 24
        thereof.
c)      It is manifestly erroneous of the Commission to seek to
        justify imposing a penalty on Ireland on the basis of
        Datasheets, published in April 1997, several years after           Action brought on 24 June 2003 by the Commission of
        the Programme finished on the basis that they represented                     the European Communities against Ireland
        a codification of previously established practice, when this
        general practice had not been established by either the
        Commission or the European Court of Auditors in their                                          (Case C-274/03)
        monitoring of the Programme.
                                                                                (2003/C 200/32)
d)      It is furthermore submitted that the Commission was
        manifestly wrong in concluding that there were errors or
        risks inherent in the reporting system developed by the
        Irish authorities.                                                 An action against Ireland was brought before the Court of
                                                                           Justice of the European Communities on 24 June 2003 by the
                                                                           Commission of the European Communities, represented by
II. Infringement of a fundamental rule of law relating to the              Mr Georges Zavvos, acting as agent, with an address for service
     implementation of the Treaty                                          in Luxembourg.
In exercising its discretion pursuant to Article 24 of Regulation          The Applicant claims that the Court should:
4253/88, the Commission misdirected itself or was wrong in
law in failing to take account of the matters pleaded in the
application. The Commission approach is in breach of the                   1)     declare that, by failing to adopt the laws, regulations and
provisions of inter alia, articles 23 and 24 of Regulation                        administrative provisions necessary to comply with Direc-
4253/88.                                                                          tive 2000/26/EC of the European Parliament and of the
                                                                                Council of 16 May 2000 on the approximation of the
                                                                                laws of the Member States relating to insurance against
                                                                                civil liability in respect of the use of motor vehicles and
III. Failure to respect the principles of non-retrospectivity,                    amending Council Directives 73/239/EEC and 88/357/EEC
      legal certainty, and legitimate expectation                                 (Fourth motor insurance Directive), published in the Offi-
                                                                                cial Journal L 181, 20.07.2000, p. 65-74, or in any event
                                                                                by failing to communicate them to the Commission,
The retrospective application of standards for financial manage-                  Ireland has failed to fulfil its obligations under the Direc-
ment, and in particular the issue of eligibility criteria, that were              tive;


title: Case C-481/03: Action brought on 19 November 2003 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
C 7/26                 EN                       Official Journal of the European Union                                        10.1.2004
The Commission claims that the Court should:                            Pleas in law and main arguments
—     declare that, by failing to adopt or, in any event, to
      notify to the Commission the laws, regulations and                The period prescribed for the transposition of the directive
      administrative provisions necessary to comply with Direc-         expired on 8 August 2002.
      tive 2000/9/EC (1) of the European Parliament and of
      the Council of 20 March 2000 relating to cableway
                                                                        (1) OJ 2000 L 200, p. 35.
      installations designed to carry persons, the Hellenic
      Republic has failed to fulfil its obligations under that
      directive;
—     order the Hellenic Republic to pay the costs.
                                                                        Action brought on 19 November 2003 by the Com-
Pleas in law and main arguments                                         mission of the European Communities against the Grand
                                                                                Duchy of Luxembourg
The time-limit for transposition of the directive into national                                  (Case C-481/03)
law expired on 3 May 2002.
                                                                                (2004/C 7/45)
(1 ) OJ L 106, 3.5.2000, p. 21.
                                                                        An action against the Grand Duchy of Luxembourg was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 19 November 2003 by the Commission of the
                                                                        European Communities, represented by W. Wils, acting as
                                                                        Agent, with an address for service in Luxembourg.
Action brought on 18 November 2003 by the Com-
mission of the European Communities against the Grand                   The Commission of the European Communities claims that
                     Duchy of Luxembourg                                the Court should:
                                                                        1.    declare that, by failing to adopt the laws, regulations
                         (Case C-479/03)                                      and administrative provisions necessary to comply with
                                                                              Directive 2001/12/EC of the European Parliament and of
                           (2004/C 7/44)                                      the Council of 26 February 2001 amending Council
                                                                              Directive 91/440/EEC on the development of the Com-
                                                                              munity’s railways (1) and Directive 2001/13/EC of the
                                                                              European Parliament and of the Council of 26 February
                                                                              2001 amending Council Directive 95/18/EC on the
An action against the Grand Duchy of Luxembourg was                           licensing of railway undertakings (2) and, in any event, by
brought before the Court of Justice of the European Communi-                  failing to inform the Commission thereof, the Grand
ties on 18 November 2003 by the Commission of the                             Duchy of Luxembourg has failed to fulfil its obligations
European Communities, represented by M. Patakia, acting as                    under those directives;
Agent, with an address for service in Luxembourg.
                                                                        2.    order the Grand Duchy of Luxembourg to pay the costs.
The Commission of the European Communities claims that
the Court should:
                                                                        Pleas in law and principal arguments
1.    declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Directive 2000/35/EC of the European Parliament and of            The period prescribed for the transposition of those directives
      the Council of 29 June 2000 on combating late payment             expired on 15 March 2003.
      in commercial transactions (1) and, in any event, by failing
      to inform the Commission thereof, the Grand Duchy of
      Luxembourg has failed to fulfil its obligations under that        (1) OJ L 75, 15.3.2001, p. 1.
      directive;                                                        (2) OJ L 75, 15.3.2001, p. 26.
2.    order the Grand Duchy of Luxembourg to pay the costs.


title: Case T-215/17: Action brought on 7 April 2017 — Pear Technologies v EUIPO — Apple (PEAR)

text:
               29.5.2017

               EN

               Official Journal of the European Union

               C 168/33

         Action brought on 7 April 2017 — Pear Technologies v EUIPO — Apple (PEAR)
   (Case T-215/17)
   (2017/C 168/44)
   Language in which the application was lodged: English

      Parties

      Applicant: Pear Technologies Ltd (Macau, China) (represented by: J. Coldham, Solicitor and E. Himsworth, QC)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Apple Inc. (Cupertino, California, United States)

      Details of the proceedings before EUIPO

      Applicant: Applicant

      Trade mark at issue: EU figurative mark containing the word element ‘PEAR’ — Application for registration No 13 115 076

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 18 January 2017 in Case R 860/2016-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision; and/or

               —

               remit the matter for further consideration by the Board of Appeal;

               —

               order EUIPO to pay the costs of the proceedings, including the costs incurred by the Applicant before the Board of Appeal;

               —

               order the other party to the proceedings before the Board of Appeal, should it intervene, to pay the costs of the proceedings, including the costs incurred by the Applicant before the Board of Appeal.

      Plea in law

               —

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


title: Case C-456/14: Request for a preliminary ruling from the Tribunal Superior de Justicia of Castilla La Mancha (Spain) lodged on 2 October 2014  — Manuel Orrego Arias v Subdelegación del Gobierno en Ciudad Real

text:
               8.12.2014

               EN

               Official Journal of the European Union

               C 439/23

         Request for a preliminary ruling from the Tribunal Superior de Justicia of Castilla La Mancha (Spain) lodged on 2 October 2014 — Manuel Orrego Arias v Subdelegación del Gobierno en Ciudad Real
   (Case C-456/14)
   (2014/C 439/31)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia of Castilla La Mancha

      Parties to the main proceedings

      Applicant: Manuel Orrego Arias

      Defendant: Subdelegación del Gobierno en Ciudad Real

      Question referred

   The interpretation of the first paragraph of Article 3(1)(a) of Council Directive 2001/40/EC (1) of 28 May, and in particular on whether the term ‘offence punishable by a penalty involving deprivation of liberty of at least one year’, set out in that provision, refers to the penalty prescribed in abstracto for the offence in question or, on the contrary, to the actual term of imprisonment imposed on the convicted person and, in consequence, whether or not the decision of a Member State to expel a national of a third country sentenced to imprisonment of eight months would be recognised by other Member States.

      (1)  Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals
   (OJ L 149, p. 34).


title: Case C-421/16: Request for a preliminary ruling from the Conseil d’État (France) lodged on 28 July 2016 — Ministre des finances et des comptes publics v Marc Lassus

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/9

         Request for a preliminary ruling from the Conseil d’État (France) lodged on 28 July 2016 — Ministre des finances et des comptes publics v Marc Lassus
   (Case C-421/16)
   (2016/C 392/12)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Ministre des finances et des comptes publics

      Defendant: Marc Lassus

      Questions referred

               1.

               Must the provisions of Article 8 of Directive 90/434/EEC of 23 July 1990 (1) be interpreted as meaning that they prohibit, in the event of an exchange of securities falling within the scope of the directive, a mechanism for deferred taxation which provides, by way of derogation from the rule that the chargeable event for capital gains tax purposes occurs during the year in which the gain arises, that the capital gain on the exchange is established and settled on the exchange of the securities, and taxed in the year in which the event bringing an end to the deferred taxation occurs, which may, inter alia, be the transfer of the securities that were received at the time of the exchange?

               2.

               Assuming that it is taxable, may the capital gain on the exchange of securities be taxed by the State with powers of taxation at the time of the exchange, although the transfer of the securities received on that exchange falls within the fiscal competence of another Member State?

               3.

               If the answer to the previous questions is that the directive does not preclude the capital gain resulting from an exchange of securities from being taxed at the time at which the securities received at the time of that exchange are subsequently transferred, even if those two transactions do not fall within the fiscal competence of the same Member State, may the Member State in which the capital gain on the exchange was subject to deferred taxation tax the deferred capital gain at the time of the transfer, subject to the applicable provisions of the bilateral Tax Convention, irrespective of the outcome of the transfer when it results in a capital loss? That question is asked in respect of both Directive 90/434/EEC and the freedom of establishment guaranteed by Article 43 [EC], now Article 49 [TFEU], since a taxpayer whose tax residence is in France at the time at which the securities are exchanged and at the time at which they are transferred may, under the conditions set out in paragraph 4 above, benefit from a tax credit derived from the capital loss on the transfer.

               4.

               If the answer to Question 3 is that account must be taken of the capital loss on the transfer of the securities received at the time of the exchange, must the Member State in which the capital gain on the exchange was derived offset the capital loss on the transfer against the capital gain or, if the transfer does not fall within its fiscal competence, must that Member State forego the taxation of the capital gain on the exchange?

               5.

               If the answer to Question 4 is that the capital loss on the transfer may be offset against the capital gain on the exchange, what purchase price must be used for the securities transferred in order to calculate the capital loss on that transfer? In particular, should the purchase price per unit for the securities transferred be the total value of the securities in the company that were received upon the exchange, as indicated on the capital gains tax return, divided by the number of securities received at the time of the exchange, or should a weighted average purchase price be used, also taking into account transactions occurring after the exchange, such as further acquisitions or free allotments of securities in the same company?

      (1)  Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1).


title: Case C-152/09: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany) lodged on 4 May 2009 — André Grootes v Amt für Landwirtschaft Parchim

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/4

         Reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany) lodged on 4 May 2009 — André Grootes v Amt für Landwirtschaft Parchim
   (Case C-152/09)
   2009/C 167/06
   Language of the case: German

      Referring court

   Verwaltungsgericht Schwerin

      Parties to the main proceedings

      Claimant: André Grootes

      Defendant: Amt für Landwirtschaft Parchim

      Questions referred

               1.

               Can hardship under Article 40(5) of Regulation (EC) No 1782/2003 (1) be recognised in relation to an area-based amount even where an agri-environmental measure ongoing on 15 May 2003 constitutes just retention of (permanent) use as pastureland, but it is connected seamlessly in time (or at any rate ‘promptly’) with a measure under which conversion from arable land to permanent pastureland has taken place?

               2.

               If the first question should be answered in the affirmative:
               Can hardship under Article 40(5) of Regulation (EC) No 1782/2003 be recognised in relation to an area-based amount only where there has been a change of use of the area from arable land to pastureland on the basis of (and precisely because of) participation in an agri-environmental measure as referred to in the aforementioned provision?

               3.

               Is recognition of hardship under Article 40(5) of Regulation (EC) No 1782/2003 contingent on the farmer making the application being the person who made the change of use, or can a farmer who later ‘joins in on’ the agri-environmental measure also successfully claim hardship under that provision?

      (1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ L 270, 21.10.2003, p. 1).


title: Judgment of the Court 4 June 2002 in Case C-367/98: Commission of the European Communities v Portuguese Republic (Failure by a Member State to fulfil its obligations — Articles 52 of the EC Treaty (now, after amendment, Article 43 EC) and 73b of the EC Treaty (now Article 56 EC) — System of administrative authorisation relating to privatised undertakings)

text:
13.7.2002               EN                           Official Journal of the European Communities                                         C 169/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       1994 (Diário da República I, Series A, No 49, of 28 February
                                                                             1994, p. 993), the Portuguese Republic has failed to comply
                                                                             with its obligations under the EC Treaty, in particular
                            4 June 2002                                      Articles 52 (now, after amendment, Article 43 EC), 56 (now,
                                                                             after amendment, Article 46 EC), 58 (now Article 48 EC), 73b
                                                                             (now Article 56 EC) et seq. and 221 (now, after amendment,
in Case C-367/98: Commission of the European Communi-                        Article 294 EC) thereof, and Articles 221 and 231 of the Act
                 ties v Portuguese Republic (1)                              concerning the conditions of accession of the Kingdom of
                                                                             Spain and the Portuguese Republic and the adjustments to the
                                                                             Treaties (OJ 1985 L 302, p. 23), the Court, composed
                                                                             of: G.C. Rodrı́guez Iglesias, President, P. Jann (Rapporteur),
(Failure by a Member State to fulfil its obligations —                       N. Colneric and S. von Bahr (Presidents of Chambers), C. Gul-
Articles 52 of the EC Treaty (now, after amendment,                          mann, D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
Article 43 EC) and 73b of the EC Treaty (now Article 56                      R. Schintgen, V. Skouris and J.N. Cunha Rodrigues, Judges;
EC) — System of administrative authorisation relating to                     D. Ruiz-Jarabo Colomer, Advocate General; H.A. Rühl, Princi-
                     privatised undertakings)                                pal Administrator, for the Registrar, has given a judgment on
                                                                             4 June 2002, in which it:
                          (2002/C 169/01)
                                                                             1.    Declares that, by adopting and maintaining in force Law
                 (Language of the case: Portuguese)                                No 11/90 of 5 April 1990, being the framework law on
                                                                                privatisations, in particular Article 13(3) thereof, the decree-
                                                                                laws on the privatisation of undertakings subsequently adopted
                                                                                in application of that Law and also Decree-Laws Nos 380/93
(Provisional translation; the definitive translation will be published             of 15 November 1993 and 65/94 of 28 February 1994, the
                   in the European Court Reports)                                  Portuguese Republic has failed to comply with its obligations
                                                                                under Article 73b of the EC Treaty (now Article 56 EC);
                                                                             2.    Dismisses the remainder of the action;
In Case C-367/98, Commission of the European Communities
(Agents: initially A. Caeiro, and, subsequently, F. Benyon and
F. de Sousa Fialho) v Portuguese Republic (Agents: initially                 3.    Orders the Portuguese Republic to pay the costs.
L. Fernandes and L. Bigotte Chorão, and, subsequently, L. Fer-
nandes and J. Vasconcelos): Applications for a declaration that,
by adopting and maintaining in force Law No 11/90 of 5 April
1990, being the framework law on privatisations (Diário da
República I, Series A, No 80, of 5 April 1990, p. 1664),                    (1) OJ C 397 of 19.12.1998.
in particular Article 13(3) thereof, the decree-laws on the
privatisation of undertakings subsequently adopted in appli-
cation of that Law and also Decree-Laws Nos 380/93 of
15 November 1993 (Diário da República I, Series A, No 267,
of 15 November 1993, p. 6362) and 65/94 of 28 February


title: Case C-16/01: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that court of 18 December 2000 in the case of Paul Dieter Haug against Unabhängiger Verwaltungssenat Wien

text:
10.3.2001              EN                    Official Journal of the European Communities                                        C 79/17
Reference for a preliminary ruling from the Regeringsrät-               Reference for a preliminary ruling by the Verwaltungsge-
ten (Supreme Administrative Court) — by decision of                     richtshof by order of that court of 18 December 2000
that court of 21 December 2000 in the case of Paranova                  in the case of Paul Dieter Haug against Unabhängiger
Läkemedel AB, Farmagon A/S, Medartuum AB, K.G. Net-                                         Verwaltungssenat Wien
Pharma AB, Orifarm AB, Trans Euro Medical AB, Cross
Pharma AB and MedImport Scandinavia AB v Läke-
          medelsverket (Medical Products Agency)                                                 (Case C-16/01)
                                                                                (2001/C 79/30)
                         (Case C-15/01)
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Verwaltungsgerichts-
                                                                        hof (Administrative Court of Appeal) of 18 December 2000
                                                                        which was received at the Court Registry on 15 January 2001,
                         (2001/C 79/29)                                 for a preliminary ruling in the case of Paul Dieter Haug
                                                                        against Unabhängiger Verwaltungssenat Wien (Independent
                                                                        Administrative Chamber for Vienna) on the following ques-
                                                                        tions:
Reference has been made to the Court of Justice of the
European Communities by a decision of the Regeringsrätten
                                                                        1.   Does Article 2(1)(b) of Council Directive 79/112/EEC of
— of 21 December 2000, which was received at the Court
                                                                             18 December 1978 on the approximation of the laws of
Registry on 15 January 2001, for a preliminary ruling in the
                                                                             the Member States relating to the labelling, presentation
case of Paranova Läkemedel AB, Farmagon A/S, Medartuum
                                                                             and advertising of foodstuffs for sale to the ultimate
AB, K.G. NetPharma AB, Orifarm AB, Trans Euro Medical
                                                                             consumer (now consolidated in European Parliament and
AB, Cross Pharma AB and MedImport Scandinavia AB v
                                                                             Council Directive 2000/13/EC of 20 March 2000 — OJ
Läkemedelsverket on the following questions:
                                                                             2000 L 109, p. 29), under which — subject to Com-
                                                                             munity provisions applicable to natural mineral waters
                                                                             and to foodstuffs for particular nutritional uses — the
1.   Is it compatible with Articles 28 and 30 EC to revoke a                 labelling and methods used may not attribute to any
     marketing authorisation for a medicinal product import-                 foodstuff the property of preventing, treating or curing a
     ed as a parallel import on the ground that the marketing                human disease, or suggest that it possesses such proper-
     authorisation for the directly imported medicinal product               ties, preclude national legislation which makes it an
     has been revoked at the request of the holder of the                    offence when marketing foodstuffs:
     authorisation for reasons unconnected with the safety of
     the medicinal product? Does the answer depend on what                   (a)   to refer to physiological or pharmacological effects,
     specific reasons have given rise to that request or on                        in particular those which preserve youthfulness,
     whether the holder of the authorisation or companies                          inhibit signs of ageing, promote slimming or main-
     belonging to the same group in other Member States                            tain health, or to create the impression of any such
     continue to sell the medicinal product to which the                           effect;
     parallel imports relate on the basis of marketing authoris-
     ations granted there?
                                                                             (b) to refer to case-histories, recommendations made by
                                                                                doctors or medical experts’ reports;
2.   If the parallel importers rely on a new marketing authoris-             (c)   to use health-related, pictorial or stylised represen-
     ation for a directly imported medicinal product rather                        tations of organs of the human body, pictures
     than on the old marketing authorisation, is authorisation                     of members of the health-care professions or of
     for the continued marketing of the medicinal product                          sanatoria or other pictures or illustrations referring
     imported as a parallel import precluded by the fact                           to health-care activities?
     that that medicinal product and the directly imported
     medicinal product which is covered by the new marketing
                                                                        2.   Do Directive 79/112/EEC or Articles 28 and 30 EC
     authorisation are different in the sense that the medicinal
                                                                             preclude a national provision which, on the placing into
     product imported as a parallel import is sold in the form
     of a capsule containing a certain acid (omeprazole) while               circulation of foodstuffs, permits health-related infor-
                                                                             mation such as that described in Question (1) to be
     the directly imported medicinal product is sold in the
                                                                             affixed thereto only after prior authorisation by the
     form of a tablet containing a magnesium salt of the acid?
                                                                             competent federal minister, whereby a condition of
                                                                             authorisation is that the health-related information is
                                                                             consistent with protecting the consumer from being
                                                                             misled?


title: Case F-41/06 RENV: Judgment of the Civil Service Tribunal (First Chamber) of 6 November 2012 — Marcuccio v Commission (Civil service — Officials — Referral back to the Tribunal after setting aside — Invalidity — Retirement on the grounds of invalidity — Composition of the Invalidity Committee — Validity — Conditions)

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/28

         Judgment of the Civil Service Tribunal (First Chamber) of 6 November 2012 — Marcuccio v Commission
   (Case F-41/06 RENV) (1)

   (Civil service - Officials - Referral back to the Tribunal after setting aside - Invalidity - Retirement on the grounds of invalidity - Composition of the Invalidity Committee - Validity - Conditions)
   2013/C 38/52
   Language of the case: Italian

      Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa. lawyer)

      Defendant: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Dal Ferro, lawyer)

      Re:

   Referral back after setting aside — Civil service — First, application for annulment of the Commission’s decision to retire the applicant on grounds of invalidity as well as a series of acts related to that decision and, second, a claim for damages

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr Marcuccio to bear his own costs and to pay the costs incurred by the European Commission in Cases F-41/06, F-41/06 RENV and T-20/09 P.

      (1)  OJ C 131, 3.6.2006, p. 54.


title: Case C-549/07: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 11 December 2007 — Friederike Wallentin-Hermann v Alitalia — Linee Aeree Italiane SpA

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/18

         Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 11 December 2007 — Friederike Wallentin-Hermann v Alitalia — Linee Aeree Italiane SpA
   (Case C-549/07)
   (2008/C 64/27)
   Language of the case: German
   Referring court
   Handelsgericht Wien
   Parties to the main proceedings

      Applicant: Friederike Wallentin-Hermann

      Defendant: Alitalia — Linee Aeree Italiane SpA
   Questions referred

               1.

               Are there extraordinary circumstances within the meaning of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (1), having regard to the 14th recital in the preamble to the regulation, if a technical defect in the aeroplane, in particular damage to the engine, results in the cancellation of the flight, and must the grounds of excuse under Article 5(3) of the regulation be interpreted in accordance with the provisions of Article 19 of the Montreal Convention?

               2.

               If the answer to the first question is in the affirmative, are there extraordinary circumstances within the meaning of Article 5(3) of Regulation No 261/2004 where air carriers cite technical defects as a reason for flight cancellations with above average frequency, solely on the basis of their frequency?

               3.

               If the answer to the first question is in the affirmative, has an air carrier taken all ‘reasonable measures’ in accordance with Article 5(3) of Regulation No 261/2004 if it establishes that the minimum legal requirements with regard to maintenance work on the aeroplane have been met and is that sufficient to relieve the air carrier of the obligation to pay compensation in accordance with Article 5 in conjunction with Article 7 of the regulation?

               4.

               If the answer to the first question is in the negative, are extraordinary circumstances within the meaning of Article 5(3) of Regulation No 261/2004 cases of force majeure or natural disasters, which were not due to a technical defect and are thus unconnected with the air carrier?

      (1)  OJ 2004 L 46, p. 1.


title: Cases T-29/10 and T-33/10: Judgment of the General Court of 2 March 2012 — Kingdom of the Netherlands and ING Groep v Commission (State aid — Financial sector — Aid designed to remedy a serious disturbance in the economy of a Member State — Capital injection with repayment or share conversion options conferred on the aid recipient — Amendment to the repayment terms during the administrative procedure — Decision declaring the aid compatible with the common market — Concept of State aid — Advantage — Private investor test — Necessary and proportionate relationship between the amount of aid and the extent of measures intended to ensure compatibility of the aid)

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/23

         Judgment of the General Court of 2 March 2012 — Kingdom of the Netherlands and ING Groep v Commission
   (Cases T-29/10 and T-33/10) (1)

   (State aid - Financial sector - Aid designed to remedy a serious disturbance in the economy of a Member State - Capital injection with repayment or share conversion options conferred on the aid recipient - Amendment to the repayment terms during the administrative procedure - Decision declaring the aid compatible with the common market - Concept of State aid - Advantage - Private investor test - Necessary and proportionate relationship between the amount of aid and the extent of measures intended to ensure compatibility of the aid)
   2012/C 118/38
   Language of the case: Dutch and English

      Parties

      Applicants: Kingdom of the Netherlands (represented by: C. Wissels, Y. de Vries and M. de Ree, Agents, assisted by P. Glazener, lawyer) (Case T-29/10); and ING Groep NV (Amsterdam, Netherlands) (represented initially by: O. Brouwer, M. Knapen and J. Blockx, lawyers, and subsequently by O. Brouwer, J. Blockx and M. O’Regan, Solicitor) (Case T-33/10)

      Defendant: European Commission (represented by: H. van Vliet, L. Flynn and S. Noë, Agents)

      Intervener in support of the applicants in Case T-33/10: De Nederlandsche Bank NV (Amsterdam, Netherlands) (represented initially by: B. Nijs and G. van der Klis, subsequently by G. van der Klis, M. Petite and S. Verschuur and, lastly, by M. Petite and S. Verschuur, lawyers)

      Re:

   Applications for the partial annulment of Commission Decision 2010/608/EC of 18 November 2009 on State aid C 10/09 (ex N 138/09) implemented by the Netherlands for ING’s Illiquid Assets Back Facility and Restructuring Plan (OJ 2010 L 274, p. 139).

      Operative part of the judgment

   The Court:

               1.

               Joins Cases T-29/10 and T-33/10 for the purposes of the present judgment.

               2.

               Annuls the first paragraph of Article 2 of Commission decision 2010/608/EC of 18 November 2009 on State aid C 10/09 (ex N 138/09) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan, the second paragraph of Article 2 of that decision and Annex II to that decision.

               3.

               Orders the European Commission to pay the costs.

      (1)  OJ C 80, 27.3.2010.


title: Case T-60/06: Action brought on  16 February 2006  — Italian Republic v Commission

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/24

         Action brought on 16 February 2006 — Italian Republic v Commission
   (Case T-60/06)
   (2006/C 96/41)
   Language of the case: Italian
   Parties

      Applicant): Italian Republic (represented by: Giacomo Aiello, Avvocato dello Stato)

      Defendant): Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               annul Commission Decision C (2005) 4436 final of 7 December 2005 and order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant brings the present action against Commission Decision C (2005) 4436 final of 7 December 2005 concerning the exemption from the tax on mineral oils used as fuel for the production of alumina in the region of Gardanne, the region of Shannon and in Sardinia, implemented by France, Ireland and Italy respectively.
   With regard to the applicant, that decision stated that:

               —

               The exemptions in question were not intended to apply generally and without distinction to all those to whom it was addressed, but were designed to support certain undertakings on account of the special structure of the alumina market.

               —

               The aid in question was new and unlawful since notification of it was not given in due time and it was to be regarded as partially existing until 29 May 1998.

               —

               Up to 31 October 2003 that aid was incompatible with State aid rules on the protection of the environment.

         In support of its claims, the applicant submits that:

               —

               The tax exemption provided for by Italian legislation was not selective but was directed at all businesses using mineral oil for the production of aluminium oxide. The fact that there is only one plant in Italy at which such oil is used in the production cycle is simply a matter of fact which is not capable of altering the fact, which is not disputed, that the provision is of general scope.

               —

               The aid in question should have been regarded as existing aid in accordance with the provisions of Article 1(b)(ii) of Regulation (EC) No 659/1999 since the Italian State was duly authorised by the Council to keep the exemption that is the subject of the dispute in force.

               —

               The exemption in question was closely linked with the attainment of environmental protection objectives, as may be inferred from the legislation implemented by the Italian Government and from the agreements concluded by Eurallumina with the region of Sardinia and the Ministero dell'Ambiente (Environment Ministry).

               —

               The exemption should have been regarded as necessary for the economic development of the region of Sardinia.

               —

               In the opinion of the Italian Government, once Directive 2003/96/EC entered into force, there was no longer any obligation to give notification of the tax benefit in question as Article 18 in conjunction with Annex II of that directive expressly provided that the disputed tax should remain in force and unaffected until 31 December 2006. Moreover, the content of those provisions is analogous to that of Article 1(2) of Council Decision 2001/224/EC.

         Finally, the applicant pleads infringement of the principle of the protection of legitimate expectations and the presumption of the legality of Community provisions.


title: Case T-55/01: Action brought on 9 March 2001 by Asahi Vet SA against the Commission of the European Communities

text:
C 161/20               EN                      Official Journal of the European Communities                                            2.6.2001
—     further, or in the alternative, to annul under Article 230          compatibility with the common market. It follows that the
      (ex 173) of the EC Treaty the implied decision of the               Commission has committed an error of law and a procedural
      Commission not to initiate the procedure provided for               irregularity by not initiating the procedure provided for under
      under Article 88(2) of the EC Treaty (ex93(2)) regarding            Article 88(2) (ex 93(2)) of the Treaty.
      the applicant’s complaint at all, or at least regarding that
      part of the applicant’s complaint dealing with the period
      up to 1995 outside the scope of the Case C-31/98
      procedure, (and/or the implied decision not to close the            (1) See Commission communication pursuant to Article 93(2) of the
      preliminary investigation procedure in any of the other                 EC Treaty to the other Member States and other interested parties
      ways available to it), contained in a letter dated 7 February           concerning aids in the shipping sector (State aids for the shipping
                                                                              company Brittany Ferries (BAI)), C 31/98, OJ C 244, 4.8.1998,
      2001;
                                                                              p. 9.
—     order the Commission to pay the applicant’s costs.
                                                                          Action brought on 9 March 2001 by Asahi Vet SA against
Pleas in law and main arguments                                                  the Commission of the European Communities
                                                                                (Case T-55/01)
The applicant is a ferry operator which provides tourist and                                       (2001/C 161/44)
freight ferry services on certain routes between France and the
United Kingdom in the western end of the Channel. Its main
competitor is the French ferry operator Bretagne-Angleterre-
Irlande S.A. (‘Brittany Ferries’).                                                           (Language of the case: German)
                                                                          An action against the Commission of the European Communi-
                                                                          ties as brought before the Court of First Instance of the
                                                                          European Communities on 9 March 2001 by Asahi Vet SA,
In February 2000, the applicant submitted a complaint to the              Rubı́, Barcelona (Spain), represented by Rechtsanwalt Carsten
Commission against State aid granted to Brittany Ferries by               Bittner.
the French authorities. Prior to this complaint, the Commission
initiated a formal investigation procedure against certain State
aid granted to Brittany Ferries in 1998 (1). However, according           The applicant claims that the Court should:
to the applicant, a part of its complaint is not covered by this
procedure.
                                                                          —     annul the defendant’s decision of 29 January 2001
                                                                                rejecting the applicant’s request for an unlimited unauth-
                                                                                orisation in respect of ToyoCerin for rearing pigs, sows
                                                                                and piglets, and an interim authorisation for fattening
The applicant submits that by failing to define its position on                 chickens, laying hens, calves, fattening cattle, fattening
the complaint, the Commission has, in breach of Article 232                     rabbits and breeding rabbits;
EC, failed to act. In particular, the Commission has failed to
adopt one of the three decisions that it is required by the               —     require the defendant to propose to the Standing Com-
Court’s case law to take in order to close the preliminary                      mittee for Feedingstuffs under Article 23(3) of Directive
examination of State aid within a reasonable time when it has                   70/524/EEC that it be awarded an unlimited Community
serious doubts as to whether a measure constitutes aid and, if                  authorisation in respect of ToyoCerin for use with rearing
so, as to whether it is compatible with the common market.                      pigs, piglets and sows;
Each of such decisions is of direct and individual concern to
the applicant under Article 230 EC.
                                                                          —     require the defendant to propose to the Standing Com-
                                                                                mittee for Feedingstuffs under Article 23(3) of Directive
                                                                                70/524/EEC that it be awarded a temporary Community
                                                                                authorisation in respect of ToyoCerin for use on fattening
                                                                                chickens, laying hens, calves, fattening cattle, fattening
As far as the grounds for annulment are concerned, the
                                                                                rabbits and breeding rabbits;
applicant claims that it is clear from the correspondence and
meetings between the parties that the Commission had cause
to suspect the existence of State aid and to doubt its                    —     order the defendant to pay the costs.
 ---pagebreak--- 2.6.2001                  EN                       Official Journal of the European Communities                                      C 161/21
Pleas in law and main arguments                                               Action brought on 12 March 2001 by Solvay SA against
                                                                                the Commission of the European Communities
The applicant is a subsidiary of the Japanese company Asahi
Vet Japan Co. Ltd, which developed the feedingstuff additive                                            (Case T-57/01)
ToyoCerin, and is the only manufacturer of that additive in the
world. The applicant produces the additive for the European
market in Spain and distributes it in Europe. In that capacity,                                        (2001/C 161/45)
the applicant is the applicant in a procedure for Community
authorisation in respect of the additive ToyoCerin pursuant to
Articles 3 and following of Council Directive 70/524/EEC (1).                                    (Language of the case: French)
The applicant first applied for a Community authorisation in                  An action against the Commission of the European Communi-
respect of ToyoCerin for all categories of animal in 1991, and                ties was brought before the Court of First Instance on 12 March
a temporary authorisation for ToyoCerin in respect of the                     2001 by Solvay SA, established in Brussels, represented by
following categories of animal was granted in 1994: rearing                   Lucien Simont, Paul Alain Foriers, Guy Block Frédéric Louis
pigs, piglets and sows. That temporary authorisation was                      and Anne Vallery, Lawyers.
periodically extended until April 1999. As regards other
animals, such as fattening chickens, cattle and fattening rabbits,
ToyoCerin was authorised on a temporary basis by Regulation                   The applicant claims that the Court of First Instance should:
(EC) No 1411/1999 (2). The applicant claims that that tempor-
ary authorisation was not extended and that the applicant’s
request for unlimited authorisation of ToyoCerin in respect of                —     find that the action taken against it was time-barred;
rearing pigs, piglets and sows has not been determined.
                                                                              —     in any event, annul the Commission Decision of
                                                                                13 December 2000 relating to a procedure under
The action is directed against the Commission’s decision to                         Article 82 of the Treaty (COMP/33.133-C: Soda-ash —
dismiss the applicant’s request for unlimited authorisation in                      Solvay);
respect of ToyoCerin for use on swine, and for an extension of
the temporary authorisation in respect of use of ToyoCerin on
other types of animal. The applicant claims that it is entitled               —     find that the power to impose fines is time-barred;
to be awarded the authorisation it is requesting pursuant to
Article 3(a) of Directive 70/524/EEC, and that the Com-                       —     in any event, annul Article 2 of the contested decision, in
mission’s decision not to propose to the Standing Committee                         so far as it imposes a fine of EUR 20 million on the
for Feedingstuffs that such authorisation be granted, and to                        applicant;
dismiss the applicant’s request, infringes that provision.
                                                                              —     declare that no fine should be imposed on the applicant
Furthermore, the applicant has legitimate expectations in the                       or, at the very least, that the fine should be substantially
present case, pursuant to which it was entitled to assume that                      reduced;
ToyoCerin would be granted fresh authorisation for categories
of animal other than swine before the temporary authorisation                 —     order the Commission to pay the costs.
expired. Finally, the procedure followed by the defendant
infringes the provisions relating to the time limits within
which the authorisation procedure is to be carried out and
the defendant’s contested decision infringes the principle of                 Contentions and principal arguments adduced in support
proportionality and the requirement to provide reasons in
Directive 70/524/EEC.
                                                                              The applicant is a company incorporated under Belgian law,
                                                                              which operates in the soda-ash sector through marketing
                                                                              outlets in nine countries in Europe.
(1) Council Directive 70/524/EEC of 23 November 1970 concerning
     additives in feeding stuffs (OJ L 270, p. 1), most recently amended
     by Commission Regulation (EC) No 45/1999 of 11 November
     1999 (OJ L 6, p. 3).                                                     On 19 December 1990, the Commission adopted Decision
                                                                              91/299/EEC (1) finding that the applicant held a dominant
( 2) Commission Regulation (EC) No 1411/1999 of 29 June 1999                  position on the soda-ash market in continental Europe and
     concerning the authorisation of new additives and new additive
     uses in feedingstuffs (OJ L 164, p. 56).
                                                                              had abused that position, and imposed on the applicant a fine
                                                                              of ECU 20 million. An action for the annulment of that initial
                                                                              decision was brought before the Court of First Instance. By
                                                                              judgment of 29 June 1995, the Court of First Instance
                                                                              annulled the decision (2). The Commission’s appeal against that
                                                                              judgment was dismissed by the Court (3).


title: JUDGMENT OF THE COURT (Sixth Chamber) of 11 December 1997 in Case C-55/96 (reference for a preliminary ruling from the Corte d'Appello, Milan): Non-contentious proceedings brought before that court by Job Centre Coop. arl (Freedom to provide services - Placement of employees - Exclusion of private undertakings - Exercise of official authority)

text:
C 41/6                EN                   Official Journal of the European Communities                                    7.2.98
     such against such a person, there is no need to                  Ð the public placement offices are manifestly unable to
     examine whether Article 6 of the First Directive 68/                 satisfy demand on the market for all types of activity,
     151/EEC has direct effect.                                           and
(1) OJ C 145, 18.5.1996.
                                                                      Ð the actual placement of employees by private
                                                                          companies is rendered impossible by the maintenance
                                                                          in force of statutory provisions under which such
                                                                          activities are prohibited and non-observance of that
                                                                          prohibition gives rise to penal and administrative
                                                                          sanctions, and
               JUDGMENT OF THE COURT
                        (Sixth Chamber)
                                                                      Ð the placement activities in question could extend to
                    of 11 December 1997                                   the nationals or to the territory of other Member
                                                                          States.
in Case C-55/96 (reference for a preliminary ruling from
the Corte d'Appello, Milan): Non-contentious proceedings
    brought before that court by Job Centre Coop. arl (1)             (1) OJ C 133, 4.5.1996.
(Freedom to provide services Ð Placement of employees
Ð Exclusion of private undertakings Ð Exercise of
                       official authority)
                          (98/C 41/09)
                                                                                JUDGMENT OF THE COURT
                (Language of the case: Italian)
                                                                                (Sixth Chamber)
                                                                                of 11 December 1997
  (Provisional translation; the definitive translation will be        in Case C-246/96 (reference for a preliminary ruling to
          published in the European Court Reports)                    the Court by the Office of the Industrial Tribunals and the
                                                                      Fair Employment Tribunal): Mary Teresa Magorrian and
                                                                      Irene Patricia Cunningham against Eastern Health and
                                                                      Social Services Board, Department of Health and Social
In Case C-55/96: reference to the Court under Article 177                                       Services (1)
of the EC Treaty by the Corte d'Appello, Milan, Italy, for
a preliminary ruling in the non-contentious proceedings               (Equal pay for male and female workers Ð Article 119 of
(giurisdizione volontaria) brought before that court by Job           the EC Treaty Ð Protocol 2 annexed to the Treaty on
Centre Coop. arl Ð on the interpretation of Articles 48,              European Union Ð Occupational social security schemes
49, 55, 56, 59, 60, 62, 66, 86 and 90 of the EC Treaty Ð              Ð Exclusion of part-time workers from status conferring
the Court (Sixth Chamber) composed of: R. Schintgen,                  entitlement to certain additional pension benefits Ð Date
President of the Second Chamber, acting as President of               from which such benefits must be calculated Ð National
the Sixth Chamber, G. F. Mancini and P. J. G. Kapteyn                                     procedural time-limits)
(Rapporteur), Judges; B. Elmer, Advocate-General; L.
Hewlett, Administrator, gave a judgment on 11 December                                         (98/C 41/10)
1997, the operative part of which is as follows:
                                                                                (Language of the case: English)
Public placement offices are subject to the prohibition
contained in Article 86 of the EC Treaty, so long as
application of that provision does not obstruct the
performance of the particular task assigned to them. A                In Case C-246/96: reference to the Court under Article 177
Member State which prohibits any activity as an                       of the EC Treaty by the Office of the Industrial Tribunals
intermediary between supply and demand on the                         and the Fair Employment Tribunal, Belfast, for a
employment market, whether as an employment agency or                 preliminary ruling in the proceedings pending before that
as an employment business, unless carried on by those                 court between Mary Teresa Magorrian, Irene Patricia
offices, is in breach of Article 90 (1) of the Treaty where it        Cunningham and Eastern Health and Social Services
creates a situation in which those offices cannot avoid               Board, Department of Health and Social Services, on the
infringing Article 86 of the Treaty. That is the case, in             interpretation of Article 119 of the EC Treaty and of
particular, in the following circumstances:                           Protocol 2 concerning Article 119 of that Treaty, annexed


title: Case T-287/14: Action brought on 2 May 2014  — Schaeffler Technologies v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/39

         Action brought on 2 May 2014 — Schaeffler Technologies v Commission
   (Case T-287/14)
   2014/C 223/42
   Language of the case: German

      Parties

      Applicant: Schaeffler Technologies GmbH & Co. KG (Herzogenaurach, Germany) (represented by: T. Volz, M. Ringel, B. Wißmann, M. Püstow, C. Oehme and T. Wielsch, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 to open the formal investigation procedure under Article 108(2) TFEU against the Federal Republic of Germany regarding the support for renewable electricity and the reduced EEG-surcharge for energy-intensive users, State aid SA.33995 (2013/C) (ex 2013/NN), in so far as it applies to the reduction of the EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: No advantage within the meaning of Article 107(1) TFEU

                           —

                           The applicant claims that the reduction of the EEG-surcharge for energy-intensive users, provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG), does not constitute aid within the meaning of Article 107(1) TFEU. In this context, the applicant states that energy-intensive users are not favoured by the arrangement. The special compensation regime is, instead, compensation for exceptional costs which affect the applicant and comparable users to a special degree in the context of the support for renewable electricity, and is intended to re-establish the competitiveness of energy-intensive users who were initially considerably adversely affected by the EEG-surcharge.

               2.

               Second plea in law: No State resources within the meaning of Article 107(1) TFEU

                           —

                           In addition, the applicant claims that the special compensation regime does not constitute a measure granted ‘by a Member State or through State resources’. The applicant states, in this context, that the EEG-surcharge is not a State resource and that even a waiver of those resources by the special compensation regime cannot therefore constitute a measure granted through State resources.

                           —

                           The EEG-surcharge is not collected, administered or even allocated by the State or by a public or private institution nominated or established by the State. Instead, the EEG-surcharge can be directly collected by the transmission system operators on the basis of a corresponding entitlement under civil law. The EEG-surcharge does not benefit the State budget, and consequently the special compensation regime in no way indirectly or directly reduces State revenue.

                           —

                           The EEG-resources are also not available to State authorities. There is also no public control over the EEG-resources, such as by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office of Economics and Export Control, BAFA) or the Bundesnetzagentur (Federal Network Agency).


title: Case T-98/17: Action brought on 10 February 2017 — RT v Parliament

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/21

         Action brought on 10 February 2017 — RT v Parliament
   (Case T-98/17)
   (2017/C 129/34)
   Language of the case: English

      Parties

      Applicant: RT (represented by: C. Bernard-Glanz, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the application admissible;

               —

               annul the decision of the appointing authority of 30 June 2016 rejecting a medical certificate; together with, and so far as necessary annul the decision of the appointing authority of 13 January 2017, rejecting the applicant’s complaint; and

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging breach of Article 59 of Staff Regulations and Article 2 of the Internal Rules.

               2.

               Second plea in law, alleging manifest error of assessment and breach of Article 59 of the Staff Regulations and Article 2 of the Internal Rules.

               3.

               Third plea in law, alleging breach of Article 59 of the Staff Regulations and Article 2 of the Internal Rules, failure to state adequate reasons, and violation of the principle of legal certainty.


title: Case C-129/01: Reference for a preliminary ruling by the Tribunale di Bologna by order of that court of 20 February 2001 in the case of Condominio "Facchini Orsini" against Kone Ascensori SpA

text:
16.6.2001              EN                    Official Journal of the European Communities                                       C 173/25
           mean exclusively the European Community’s own                Reference for a preliminary ruling by the Employment
           legislation? Or may national legislation too, such as        Tribunal (Leeds), by order of that court of 12 January
           certain provisions of the Kaivoslaki and the Jätease-        2001, in the case of 1) Mr P. Breckon 2) Mr M. Barrett
           tus in force in Finland, be ‘other legislation’ within                against Secretary of State for Employment
           the meaning of the Waste Directive?
                                                                                (Case C-137/01)
      (b) If ‘other legislation’ means also national legislation,
           does that mean exclusively national legislation
           which was already in force at the time of entry into                                  (2001/C 173/42)
           force of the Waste Directive 91/156/EEC or also
           that only enacted afterwards?
                                                                        Reference has been made to the Court of Justice of the
      (c)  If ‘other legislation’ means also national legislation,      European Communities by an order of the Employment
           do fundamental European Community provisions                 Tribunal (Leeds) of 12 January 2001, which was received at
           relating to environmental protection or the prin-            the Court Registry on 27 March 2001, for a preliminary ruling
           ciples of the Waste Directive set requirements for           in the case of 1) Mr P. Breckon 2) Mr M. Barrett against
           national legislation concerning the level of environ-        Secretary of State for Employment, on the following question:
           mental protection as a condition for disapplying
           the rules of the Waste Directive? What sort of
                                                                        ‘Are the requirements of Directive 80/987 (1) fully satisfied by
           requirements could those be?
                                                                        rules of national law which may result in a claim relating to
                                                                        holiday pay against the Guarantee Institution being dismissed
(1) OJ L 194 of 25.7.1975, p. 39.
                                                                        owing to unforeseen delay in bringing about a state of
(2) OJ L 78 of 26.3.1991, p. 32.                                        insolvency in the employer, which delay was caused by the
                                                                        employer?’
                                                                        (1) Council Directive 80/987/EEC of 20 October 1980 on the
                                                                            approximation of the laws of the Member States relating to the
                                                                            protection of employees in the event of the insolvency of their
                                                                            employer (OJ L 283, 28.10.1980, p. 23).
Reference for a preliminary ruling by the Tribunale di
Bologna by order of that court of 20 February 2001 in
the case of Condominio ‘Facchini Orsini’ against Kone
                          Ascensori SpA
                         (Case C-129/01)
                         (2001/C 173/41)                                Reference for a preliminary ruling by the Oberster
                                                                        Gerichtshof der Republik Österreich, by orders of
                                                                        28 February and 14 February 2001 in the cases of Christa
Reference has been made to the Court of Justice of the                  Neukomm against Österreichischer Rundfunk and Josef
European Communities by order of the Tribunale di Bologna                      Lauermann against Österreichischer Rundfunk
of 20 February 2001, received at the Court Registry on
21 March 2001, for a preliminary ruling in the case of
Condominio ‘Facchini Orsini’ against Kone Ascensori SpA on                              (Cases C-138/01 and C-139/01)
the following question:
                                                                                (2001/C 173/43)
‘For the purposes of application of the provisions contained in
Council Directive 93/13/EEC (1) of 5 April 1993 on unfair
terms in consumer contracts published in Official Journal               Reference has been made to the Court of Justice of the
1993 L 95, can the co-ownership of buildings referred to in             European Communities by orders of the Oberster Gerichtshof
Articles 1117-1139 of the Civil Code be regarded as a                   der Republik Österreich of 28 February and 14 February 2001,
consumer where the individual owners are natural persons or             received at the Court Registry on 27 March 2001, for a
are acting for purposes outside their trade, business or                preliminary ruling in the cases of Christa Neukomm against
profession?’                                                            Österreichischer Rundfunk and Josef Lauermann against Öster-
                                                                        reichischer Rundfunk on the following questions:
(1) OJ L 95 of 21.4.1993, p. 29.                                        1.    Are the provisions of Community law, in particular those
                                                                              on data protection (Articles 1, 2, 6, 7 and 22 of Directive
                                                                              95/46/EC (1) in conjunction with Article 6 (formerly
                                                                              Article F) of the Treaty on European Union and Article 8


title: Case T-671/14: Judgment of the General Court of 12 September 2017 — Bayerische Motoren Werke v Commission (State aid — Regional investment aid — Aid granted by Germany to BMW for a large investment project in Leipzig concerning the production of two models of electric cars (i3 and i8) — Decision declaring the aid partly compatible and partly incompatible with the internal market — Article 107(3)(c) TFEU — Article 108(2) and (3) TFEU — Incentive effect of the aid — Whether the aid is necessary)

text:
               23.10.2017

               EN

               Official Journal of the European Union

               C 357/8

         Judgment of the General Court of 12 September 2017 — Bayerische Motoren Werke v Commission
   (Case T-671/14) (1)

   ((State aid - Regional investment aid - Aid granted by Germany to BMW for a large investment project in Leipzig concerning the production of two models of electric cars (i3 and i8) - Decision declaring the aid partly compatible and partly incompatible with the internal market - Article 107(3)(c) TFEU - Article 108(2) and (3) TFEU - Incentive effect of the aid - Whether the aid is necessary))
   (2017/C 357/10)
   Language of the case: German

      Parties

      Applicant: Bayerische Motoren Werke AG (Munich, Germany) (represented by: M. Rosenthal, G. Drauz and M. Schütte, lawyers)

      Defendant: European Commission (represented: initially by F. Erlbacher, T. Maxian Rusche and R. Sauer, and subsequently by T. Maxian Rusche and R. Sauer, acting as Agents)

      Intervener in support of the applicant: Freistaat Sachsen (Germany) (represented by: T. Lübbig and K. Gaßner, lawyers)

      Re:

   Application pursuant to Article 263 TFEU for partial annulment of Commission Decision C(2014) 4531 final of 9 July 2014 on the State aid No SA.32009 (2011/C) (ex 2010/N) which the Federal Republic of Germany plans to grant to BMW for a large investment project in Leipzig.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Bayerische Motoren Werke AG to bear its own costs and to pay those incurred by the European Commission;

               3.

               Orders the Freistaat Sachsen to bear its own costs.

      (1)  OJ C 439, 8.12.2014.


title: Case C-356/05: Judgment of the Court (First Chamber) of 19 April 2007 (reference for a preliminary ruling from the High Court of Ireland — Ireland) — Elaine Farrell v Alan Whitty, Minister for the Environment, Ireland, Attorney General, Motor Insurers' Bureau of Ireland (MIBI) (Compulsory insurance for civil liability in respect of motor vehicles — Directives 72/166/EEC, 84/5/EEC and 90/232/EEC — Injuries to the passengers of a vehicle — Part of a vehicle not adapted for the carriage of seated passengers)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/10

         Judgment of the Court (First Chamber) of 19 April 2007 (reference for a preliminary ruling from the High Court of Ireland — Ireland) — Elaine Farrell v Alan Whitty, Minister for the Environment, Ireland, Attorney General, Motor Insurers' Bureau of Ireland (MIBI)
   (Case C-356/05) (1)

   (Compulsory insurance for civil liability in respect of motor vehicles - Directives 72/166/EEC, 84/5/EEC and 90/232/EEC - Injuries to the passengers of a vehicle - Part of a vehicle not adapted for the carriage of seated passengers)
   (2007/C 96/16)
   Language of the case: English
   Referring court
   High Court of Ireland
   Parties to the main proceedings

      Applicant: Elaine Farrell

      Defendants: Alan Whitty, Minister for the Environment, Ireland, Attorney General, and Motor Insurers' Bureau of Ireland (MIBI)
   Re:
   Preliminary ruling — High Court of Ireland — Interpretation of Article 1 of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33) — Persons travelling as passengers in a part of a vehicle which is not intended for the carriage of passengers and is not equipped with seating for that purpose — National legislation which does not make such persons subject to compulsory insurance in the event of an accident
   Operative part of the judgment

               1.

               Article 1 of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles is to be interpreted as precluding national legislation whereby compulsory motor vehicle liability insurance does not cover liability in respect of personal injuries to persons travelling in a part of a motor vehicle which has not been designed and constructed with seating accommodation for passengers.

               2.

               Article 1 of Third Directive 90/232 satisfies all the conditions necessary for it to produce direct effect and accordingly confers rights upon which individuals may rely directly before the national courts. However, it is for the national court to determine whether that provision may be relied upon against a body such as the Motor Insurers' Bureau of Ireland.

      (1)  OJ C 315, 10.12.2005.


title: Case T-160/01: Action brought on 17 July 2001 by Léon Rappe against the Commission of the European Communities

text:
13.10.2001             EN                     Official Journal of the European Communities                                     C 289/27
The applicant contends that the decision means that in future            kamp, residing in Overijse (Belgium), represented by Eric
almost all sales packaging in Germany will bear its mark, with           Boigelot, avocat, with an address for service in Luxembourg.
the result that, together with its disposal partners, the applicant
will bear the costs of the disposal of packaging for which it
will receive no licence fee. Indiscriminate designation of almost        The applicant claims that the Court should:
all packaging in Germany with the mark ‘Der Grüne Punkt’
would, it argues, destroy both the indication-of-origin function
and the appeal function of that mark and thereby jeopardise              —     annul the decision of the appointing authority of 13 Sep-
the efficacy of the applicant’s system. At almost the same time                tember 2000 filling at Grade A 1 the post of Deputy
it would lead to a total dilution of the mark, and the recognised              Director General responsible for coordination of Director-
signal effect of the mark would be destroyed in a very short                   ates C, D and E of the Directorate-General for Agriculture
time. The applicant submits that the total dilution of the mark                (COM/094/00);
would imperil the authorisation of its system and claims
protection against revocation of that authorisation.                     —     set aside the appointment of another person to the post
                                                                               of Deputy Director General responsible for coordination
                                                                               of Directorates C, D and E of the Directorate-General for
                                                                               Agriculture (COM/094/00), which involved in particular
The applicant argues that there is no infringement of Article 82               the rejection of the application which the applicant had
inasmuch as the conditions for the legal exemption under                       submitted for the vacant post;
Article 86(2) EC are satisfied. The applicant submits that it is
entrusted with the operation of a service of general economic
interest and that accordingly the rules governing competition,           —     annul the implied decision rejecting the applicant’s com-
including those of Article 82 EC, apply to it only in so far as                plaint;
their application does not obstruct the performance, under
commercially acceptable conditions, of the particular tasks              —     in any event, order the defendant to pay the costs,
assigned to it. By destroying, in particular, the signal effect of             together with the expenses and fees of counsel consulted
the mark ‘Der Grüne Punkt’, the decision has the effect of                     by the applicant for the purpose of bringing the present
endangering in such a way the functional efficacy of the                       action.
applicant’s system.
The applicant concludes by arguing that there has been a                 Pleas in law and main arguments
breach of Article 3 of Regulation No 17, contending inter alia
that an obligation such as that laid down in Articles 3 and 4
of the contested decision to grant a temporally unlimited                The applicant claims that the Commission took account of the
compulsory licence to use the mark ‘Der Grüne Punkt’ without             nationality of applicants in making the appointment to the
payment of a licence fee is disproportionate and at variance             post of Deputy Director General, thereby infringing Articles 7,
with the case-law of the Court of Justice.                               25, 27, 29 and 45(1) of the Staff Regulations.
                                                                         Action brought on 17 July 2001 by Léon Rappe against
                                                                                the Commission of the European Communities
Action brought on 12 July 2001 by Alexandre Tilgenkamp
  against the Commission of the European Communities
                                                                                (Case T-160/01)
                         (Case T-158/01)
                                                                                (2001/C 289/65)
                         (2001/C 289/64)
                                                                                (Language of the case: French)
                   (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 17 July 2001 by Léon Rappe,
An action against the Commission of the European Communi-                residing in Orp-Jauche, Belgium, represented by Jean-Noël
ties was brought before the Court of First Instance of the               Louis and Véronique Peere, Lawyers, with an address for
European Communities on 12 July 2001 by Alexandre Tilgen-                service in Luxembourg.
 ---pagebreak--- C 289/28              EN                      Official Journal of the European Communities                                   13.10.2001
The applicant claims that the Court should:                              Pleas in law and main arguments
—     annul the decision approving the applicant’s staff report
      for the period 1995-1997;                                          In support of his action, the applicant pleads breach of
                                                                         essential procedural requirements, breach of the principle of
                                                                         equal treatment and breach of the rules governing the work of
—     order the defendant to pay the costs.                              the jury. The applicant argues that neither the composition of
                                                                         the jury nor the conduct of the oral tests for competition
                                                                         COM/TB/99 complied with procedural requirements as defined
                                                                         in case-law. He also maintains that the reasons given for the
                                                                         contested decision do not meet the requisite legal standard.
Pleas in law and main arguments
In support of his action, the applicant pleads:
—     infringement of Article 6 of the general implementing
      provisions relating to Article 43 of the Staff Regulations;
                                                                         Action brought on 17 July 2001 by Hans Mc Auley against
—     breach of the principle of equal treatment and non-                                Council of the European Union
      discrimination and infringement of the rights of the
      defence;
                                                                                (Case T-165/01)
—     breach of the principle of legitimate expectations;
                                                                                (2001/C 289/67)
—     manifest error of assessment and incoherence.
                                                                                (Language of the case: French)
                                                                         An action against Council of the European Union was brought
                                                                         before the Court of First Instance of the European Communities
                                                                         on 17 July 2001 by Hans Mc Auley, residing in Wezembeek-
                                                                         Oppem (Belgium), represented by Jean-Noël Louis et Véronique
                                                                         Peere, lawyers.
Action brought on 12 July 2001 by Liam O’Bradaigh
  against the Commission of the European Communities
                                                                         The applicant claims that the Court should:
                        (Case T-161/01)
                                                                         —     annul the decision of the Commission of 15 September
                                                                               2000 on the drawing up the final staff report for the
                        (2001/C 289/66)                                        period 1 July 1997 to 30 June 1999;
                   (Language of the case: French)                        —     order the Commission to pay the costs.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Pleas in law and main arguments
European Communities on 12 July 2001 by Liam O’Bradaigh,
residing in Mechelen, Belgium, represented by Jean-Noël Louis            The applicant takes the view that the final staff report was
and Véronique Peere, Lawyers, with an address for service in             drawn up in breach of the obligation to provide a statement of
Luxembourg.                                                              reasons and of the rights of the defence, inasmuch as it:
                                                                         —     awards standardised, harmonised marks;
The applicant claims that the Court should:
                                                                         —     contains serious accusations which are neither substan-
—     annul the decision of the jury in competition COM-                       tiated, objective nor specific;
      T/OB/99 to award him in the oral tests a mark lower than
      the pass mark and to exclude him from the reserve list;            —     refers to conduct which has not been proven.
—     order the defendant to pay the costs.