title: Case T-171/07: Action brought on 14 May 2007 — Avaya v OHMI — ZyXEL Communications (VANTAGE CNM)

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/29

         Action brought on 14 May 2007 — Avaya v OHMI — ZyXEL Communications (VANTAGE CNM)
   (Case T-171/07)
   (2007/C 170/57)
   Language in which the application was lodged: English
   Parties

      Applicant: Avaya Inc. (Basking Ridge, USA) (represented by: A. Beschorner, B. Glaser, C. Thomas, lawyers)

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

      Other party to the proceedings before the Board of Appeal: ZyXEL Communications Corp. (Hsin-Chu, Taiwan)
   Form of order sought

               —

               To annul the decision of the Second Board of Appeal No R 156/2006-2 of 14 March 2007 regarding Community trade mark application No 3 291 457 ‘VANTAGE CNM’; and

               —

               to order the defendant to pay the costs incurred in the proceedings before the Court and to order the intervener to pay the costs of the administrative proceedings before the Board of Appeal.

         Pleas in law and main arguments

      Applicant for the Community trade mark: ZyXEL Communications Corp.

      Community trade mark concerned: The Community figurative mark ‘VANTAGE’ for goods and services in Classes 9 and 42 — application No 3 291 457

      Proprietor of the mark or sign cited in the opposition proceedings: Avaya Inc.

      Mark or sign cited: The Community word mark ‘MULTIVANTAGE’ for goods and services in Classes 9, 38 and 42 — application No 2 409 589

      Decision of the Opposition Division: Rejected in its entirety

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: The applicant advances two different pleas in support of its application, namely, a breach of the principle of equal treatment and case-law consistency on the one hand, as well as the infringement of Article 8(1)(b) CTMR and the general principles of trade mark law on the other hand.
   On the basis of its first plea, the applicant submits that the Board has departed from a previous decision rendered in a parallel case dealing with a nearly identical issue without giving any reasons for its sudden change in practice.
   Furthermore, the applicant claims on the basis of its second plea, that the Board did not sufficiently consider the identity of the goods and services of the opposing marks as well as the high similarity of the marks themselves.


10.6.2000              EN                     Official Journal of the European Communities                                     C 163/23
2. order the defendant to pay the costs.                                        Removal from the register of Case C-218/99 (1)
Pleas in law and main arguments                                                                  (2000/C 163/43)
In the Commission’s view, the practice followed in Austria
does not accord with the principle of proportionality (Article           By order of 15 March 2000 the President of the Court of
30 EC). That practice fails to take account of the fact that             Justice of the European Communities has ordered the removal
vitamins and mineral nutrients may be harmful to a greater or            from the register of Case C-218/99: Commission of the
lesser degree. It would be less restrictive to fix a limit for each      European Communities v Grand-Duchy of Luxembourg.
individual mineral nutrient and to require any preparation
with a nutrient content in excess of that limit to be classified         (1) OJ C 266 of 7.8.1999.
as a medicinal product. It seems too sweeping, therefore, to
take the daily dose alone as the determining criterion.
At the same time, the practice referred to fails to take account
of the fact that the Member State concerned is required to
state, in relation to each individual product, that it constitutes
a serious health risk. It is unacceptable to require the applicant
to prove that a substance is not harmful, since it is for the                   Removal from the register of Case C-361/99 (1)
Member State itself to show that a higher concentration
presents a health risk where the critical limits accepted by the                                 (2000/C 163/44)
scientific bodies are not reached.
                                                                         By order of 16 March 2000 the President of the Court of
                                                                         Justice of the European Communities has ordered the removal
                                                                         from the register of Case C-361/99 (reference for a preliminary
       Removal from the register of Case C-406/99 (1)                    ruling from the Landesgericht für Zivilrechtssachen Wien):
                         (2000/C 163/41)                                 Silveria Gäng v Republic of Austria.
By order of 13 March 2000 the President of the Court of
Justice of the European Communities has ordered the removal              (1) OJ C 6 of 8.1.2000.
from the register of Case C-406/99: Commission of the
European Communities v Federal Republic of Germany.
(1) OJ C 366 of 18.12.1999.
                                                                                Removal from the register of Case C-438/98 (1)
       Removal from the register of Case C-221/98 (1)                                            (2000/C 163/45)
                         (2000/C 163/42)
                                                                         By order of 20 March 2000 the President of the First Chamber
By order of 14 March 2000 the President of the Fifth Chamber             of the Court of Justice of the European Communities has
of the Court of Justice of the European Communities has                  ordered the removal from the register of Case C-438/98:
ordered the removal from the register of Case C-221/98:                  Commission of the European Communities v Grand-Duchy of
Commission of the European Communities v French Republic.                Luxembourg.
(1) OJ C 278 of 14.3.2000.
                                                                         (1) OJ C 20 of 23.1.1999.


title: Removal from the register of Case C-121/94

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


title: Case T-57/01: Judgment of the General Court of 17 December 2009 — Solvay v Commission (Competition — Abuse of a dominant position — Market in soda ash in the Community (with the exception of the United Kingdom and Ireland) — Decision finding an infringement of Article 82 EC — Supply agreements for an excessively long period — Fidelity rebate — Expiry of limitation period applicable to Commission power to impose fines or sanctions — Reasonable time — Essential procedural requirements — Relevant geographic market — Existence of a dominant position — Abuse of a dominant position — Right of access to the file — Fine — Gravity and duration of the infringement — Aggravating circumstances — Repetition of infringement — Mitigating circumstances)

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/31

         Judgment of the General Court of 17 December 2009 — Solvay v Commission
   (Case T-57/01) (1)

   (Competition - Abuse of a dominant position - Market in soda ash in the Community (with the exception of the United Kingdom and Ireland) - Decision finding an infringement of Article 82 EC - Supply agreements for an excessively long period - Fidelity rebate - Expiry of limitation period applicable to Commission power to impose fines or sanctions - Reasonable time - Essential procedural requirements - Relevant geographic market - Existence of a dominant position - Abuse of a dominant position - Right of access to the file - Fine - Gravity and duration of the infringement - Aggravating circumstances - Repetition of infringement - Mitigating circumstances)
   2010/C 37/38
   Language of the case: French

      Parties

      Applicant: Solvay SA (Brussels, Belgium) (represented by: L. Simont, P.-A. Foriers, G. Block, F. Louis and A. Vallery, lawyers)

      Defendant: European Commission (represented by: P. Oliver and J. Currall, Agents, assisted by N. Coutrelis, lawyer)

      Re:

   First, application for annulment of Commission Decision 2003/6/EC of 13 December 2000 relating to a proceeding pursuant to Article 82 [EC] (Case COMP/33.133 — C: Soda ash — Solvay) (OJ 2003 L 10, p. 10) and, in the alternative, application for annulment or reduction of the fine imposed on the applicant.

      Operative part of the judgment

   The Court:

               1.

               Fixes the fine imposed on Solvay SA in Article 2 of Commission Decision 2003/6/EC of 13 December 2000 relating to a proceeding pursuant to Article 82 [EC] (Case COMP/33.133 — C: Soda ash — Solvay) at EUR 19 million;

               2.

               Dismisses the action as to the remainder.

      (1)  OJ C 161, 2.6.2001.


title: Judgment of the Court (Sixth Chamber) of 7 October 2004 in Case C-379/02 (reference for a preliminary ruling from the Østre Landsret): Skatteministeriet v Imexpo Trading A/S (Common Customs Tariff — Tariff headings — Classification in the Combined Nomenclature — Chairmats)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/13

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 7 October 2004
   in Case C-379/02 (reference for a preliminary ruling from the Østre Landsret): Skatteministeriet v Imexpo Trading A/S (1)

   (Common Customs Tariff - Tariff headings - Classification in the Combined Nomenclature - Chairmats)
   (2004/C 300/25)
   Language of the case: Danish
   In Case C-379/02: reference for a preliminary ruling under Article 234 EC from the Østre Landsret (Denmark), made by order of 15 October 2002, received at the Court on 21 October 2002, in the proceedings between Skatteministeriet and Imexpo Trading A/S — the Court (Sixth Chamber), composed of: A. Borg Barthet, President of the Chamber, J.-P. Puissochet (Rapporteur), and S. von Bahr, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 7 October 2004, in which it has ruled:
   The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1734/96 of 9 September 1996, Commission Regulation (EC) No 2086/97 of 4 November 1997, Commission Regulation (EC) No 2261/98 of 26 October 1998, and Commission Regulation (EC) No 2204/99 of 12 October 1999 must be construed as meaning that in a dispute such as that in the main proceedings, in which the parties disagree as to whether plastic chairmats such as those at issue in the main proceedings come under subheading 3918 10 90 or subheading 9403 70 90 of the Combined Nomenclature, classification under the former subheading is to be preferred.

      (1)  OJ C 7 of 11.1.2003.


title: Case C-258/09: Action brought on 10 July 2009 — Commission of the European Communities v Kingdom of Belgium

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/23

         Action brought on 10 July 2009 — Commission of the European Communities v Kingdom of Belgium
   (Case C-258/09)
   2009/C 220/47
   Language of the case: French

      Parties

      Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro and A. Marghelis, acting as Agents)

      Defendant: Kingdom of Belgium

      Form of order sought

               —

               Declare that, by authorising, in the Walloon Region, the functioning of existing installations which do not comply with the requirements provided for in Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2), and that despite the expiry of the 30 October 2007 time-limit, as is provided for in Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (1), the Kingdom of Belgium has failed to fulfil its obligations under that directive;

               —

               order the Kingdom of Belgium to pay the costs.

      Pleas in law and main arguments

   The period for ensuring compliance of existing installations, the operation of which is liable to have an effect on emissions into the air, water and soil and on pollution, expired on 30 October 2007, in accordance with Article 5(1) of Directive 2008/1/EC. However, on the date the present action was brought, the defendant had still not taken all the measures necessary to comply with that requirement in the Walloon Region or, in any event, it had failed to inform the Commission thereof.

      (1)  OJ 2007 L 24, p. 8.


title: Case T-327/09: Action brought on 18 August 2009 — Connefroy and Others v Commission

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/68

         Action brought on 18 August 2009 — Connefroy and Others v Commission
   (Case T-327/09)
   2009/C 267/124
   Language of the case: French

      Parties

      Applicants: Philippe Connefroy (Le Rozel, France), Jean-Guy Gueguen (Carantec, France) and EARL de Cavagnan (Bouglon, France) (represented by: C. Galvez, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul the contested decision on the basis of the fourth paragraph of Article 230 EC;

               —

               Order the Commission to pay all the costs.

      Pleas in law and main arguments

   The applicants seek the annulment of Commission Decision C(2009) 203 final of 28 January 2009 (1), by which the Commission had declared incompatible with the common market the State aid granted by the French Republic to fruit and vegetable producers in the context of ‘contingency plans’ aimed at facilitating the marketing of agricultural products harvested in France and had instructed the French Republic to recover the aid in question.
   The pleas in law and main arguments relied on by the applicants are identical or similar to those relied on in the context of Case T-243/09 Fedecom v Commission
       (2).

      (1)  OJ 2009 L 127, p. 11 — published under No 2009/402/EC.

      (2)  OJ 2009 C 205, p. 43.


title: Case T-699/15: Action brought on 26 November 2015 — City Train v EUIPO (City Train)

text:
               29.3.2016

               EN

               Official Journal of the European Union

               C 111/26

         Action brought on 26 November 2015 — City Train v EUIPO (City Train)
   (Case T-699/15)
   (2016/C 111/31)
   Language of the case: German

      Parties

      Applicant: City Train GmbH (Regensburg, Germany) (represented by: C. Adori, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: European Union figurative mark containing the word element ‘City Train’ — Application No 13 154 315

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 9 September 2015 in Case R 843/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the defendant’s decision of 9 September 2015 and order it to register the figurative trade mark ‘City Train’ indicating the colours ‘grey, light red’ which was applied for under application No 13 154 315 on 8 August 2014 as a European Union trade mark in respect of the goods and services in Classes 12, 37 and 42 referred to the application.

      Pleas in law

               —

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

               —

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


title: Case T-197/08: Action brought on 23 May 2008 — Polson and Others v Commission

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/55

         Action brought on 23 May 2008 — Polson and Others v Commission
   (Case T-197/08)
   (2008/C 209/100)
   Language of the case: English
   Parties

      Applicants: Magnus Polson (Lerwick, United Kingdom), Garry Sandison (Lerwick, United Kingdom), Andrew Anderson (Whalsay, United Kingdom), Ian Johnston (Lerwick, United Kingdom) (represented by: R. Murray, Solicitor, R. Thompson, QC)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Articles 1(2), 3, 4 and 5 of Commission Decision State Aid No C 39/06 (ex NN 94/2005) of 13 November 2007 concerning the First Time Shareholders Scheme implemented in the United Kingdom;

               —

               order the Commission to pay costs of the proceedings.

         Pleas in law and main arguments
   In the present case, the applicants seek partial annulment of Commission Decision 2008/166/EC, State Aid No C 39/06 (ex NN 94/2005) of 13 November 2007 concerning the First Time Shareholders Scheme implemented by the United Kingdom (1). In the contested decision the Commission found that the aid was incompatible with the common market as far as it concerned aid granted for the first time acquisition of a share in a second-hand fishing vessel and required the United Kingdom to recover the aid granted. The applicants are the beneficiaries of the aid to be recovered.
   The applicants seek annulment of the contested decision on the following grounds:

               —

               The Commission erred in law in finding that all payments made for first time acquisition of a share in a second-hand fishing vessel were incompatible with the common market and had to be repaid; the applicants claim that the awarded grants fall within the scope of Commission Regulation 875/2007 (2) and should be therefore considered de minimis aids compatible with the common market; they claim that Articles 1(2) and Articles 3 to 5 of the contested decision unlawfully extend to beneficiaries of aid who complied in substance with the relevant Community guidelines;

               —

               The Commission erred in law in finding that the recovery of these payments would be compatible with Article 14(1) of Council Regulation (EC) No 659/1999 (3) as well as with the general principles of legal certainty and the protection of legitimate expectations and of equality of treatment.

      (1)  OJ 2008 L 55, p. 27.

      (2)  Commission Regulation (EC) No 875/2007 of 24 July 2007 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the fisheries sector and amending Regulation (EC) No 1860/2004, OJ 2007 L 193, p. 6.

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


title: Case C-364/16 P: Appeal brought on 1 July 2016 by Trioplast Industrier AB against the judgment of the General Court (Seventh Chamber) delivered on 12 May 2016 in Case T-669/14: Trioplast Industrier AB v European Commission

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/31

         Appeal brought on 1 July 2016 by Trioplast Industrier AB against the judgment of the General Court (Seventh Chamber) delivered on 12 May 2016 in Case T-669/14: Trioplast Industrier AB v European Commission
   (Case C-364/16 P)
   (2016/C 343/43)
   Language of the case: English

      Parties

      Appellant: Trioplast Industrier AB (represented by: T. Pettersson, F. Sjövall, A. Johansson, advokater)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               a.

               annul the General Court’s judgment of 12 May 2016 in case T-669/14 Trioplast Industrier v European Commission;

               b.

               in the first alternative:

                           (i)

                           annul the Commission’s decision in its letter of 3 July 2014 in Case COMP/38354 — Industrial Bags — Trioplast Industrier AB;

                           (ii)

                           cancellation of, or a reduction in the amount of, the default interest of EUR 674 033,32 imposed on Trioplast by the Commission’s decision in its letter of 3 July 2014 in Case COMP/38354 — Industrial Bags — Trioplast Industrier AB;

                           (iii)

                           order the Commission to reimburse Trioplast for the expenses of EUR 4 686,64 incurred in providing security for payment of the default interest.

               c.

               In the second alternative, damages pursuant to Article 340(2) TFEU as a result of the breaches of EU laws set out above for:

                           (i)

                           The amount of the default interest of EUR 674 033,32, or part thereof;

                           (ii)

                           The expenses of EUR 4 686,64 incurred in providing security for the default interest;

               d.

               In addition to the relief sought under (b) or (c), damages pursuant to Article 340(2) TFEU as a result of the breaches of EU law set out above:

                           (i)

                           As a result of the breaches of EU law relating to the period when the Commission did not release or reduce the bank guarantee amount following the General Court’s judgment in case T-40/06, for the expenses incurred in providing security, to an amount of EUR 22 783,90, or part thereof.

               e.

               Interest on such sums as are found to be due.

               f.

               order the Commission to pay the costs of the proceedings before the General Court as well as the Court of Justice.

      Pleas in law and main arguments

               1.

               Trioplast maintains before the Court of Justice the case brought before the General Court and the grounds relied on. Pursuant to Article 58 of the Statute of the court of Justice of the European Union and Articles 168.1 d) and 169.2 of the Rules of Procedure of the Court of Justice, Trioplast submits that the General Court by way of its judgment of 12 May 2016 in case T-669/14 dismissing the case has erred in the application of EU law.

               2.

                  First, the General Court was wrong in law to conclude as it did that the 2010 judgment only amended the 2005 decision. Instead, the 2010 judgment annulled the 2005 decision in full and required the Commission to adopt a new decision against Trioplast once the outcome of the FLS cases became known.

               3.

                  Second, the General Court was wrong in law to conclude that the contested letter was not a decision capable of challenge, since the contested letter set out for the first time an obligation for Trioplast which was certain and of a fixed amount.

               4.

                  Third, the fact that the 2005 decision was annulled by the 2010 judgment means that default interest cannot accrue according to the terms of the 2005 decision.

               5.

                  Fourth, the General Court was wrong in law to conclude that the actions of the Commission did not cause damage for Trioplast and the General Court should thus have proceeded to try the action for damages on its substance.


title: Case T-484/08: Judgment of the General Court of 9 December 2009 — Longevity Health Products v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark Kids Vits — Earlier Community word mark VITS4KIDS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/50

         Judgment of the General Court of 9 December 2009 — Longevity Health Products v OHIM
   (Case T-484/08) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark Kids Vits - Earlier Community word mark VITS4KIDS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2010/C 24/87
   Language of the case: German

      Parties

      Applicant: Longevity Health Products, Inc. (Nassau, Bahamas) (represented by: J. Korab, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Merck KGaA (Darmstadt, Germany)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 August 2008 (Case R 716/2007-4) relating to opposition proceedings between Merck KGaA and Longevity Health Products, Inc.

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Longevity Health Products, Inc. to pay the costs.

      (1)  OJ C 32, 7.2.2009.


title: Case T-262/09: Action brought on 6 July 2009 — Defense Technology v OHIM — DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/45

         Action brought on 6 July 2009 — Defense Technology v OHIM — DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)
   (Case T-262/09)
   2009/C 205/83
   Language in which the application was lodged: English

      Parties

      Applicants: Defense Technology Corporation of America (Jacksonville, United States) (represented by: R. Kunze, lawyer and Solicitor)

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

      Other party to the proceedings before the Board of Appeal: DEF-TEC Defense Technology GmbH (Frankfurt/Main, Germany)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2009 in case R 493/2002-4 (II); and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

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

      Community trade mark concerned: The figurative mark ‘FIRST DEFENSE AEROSOL PEPPER PROJECTOR’, for goods in classes 5, 8 and 13 — application No 643 668

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

      Mark or sign cited: United States trade mark registration for the word mark ‘FIRST DEFENSE’ for goods in class 13; Two United States trade mark registrations of figurative marks for goods in class 13; An earlier well-known mark in Belgium, Germany and France ‘FIRST DEFENSE’; An earlier well-known mark in Belgium, Germany and France ‘FIRST DEFENSE AND DESIGN’; An earlier non-registered work mark ‘FIRST DEFENSE’ protected in Germany and France; An earlier non-registered mark in Belgium, Germany and France ‘FIRST DEFENSE AND DESIGN’; A trade name ‘FIRST DEFENSE’, protected in Germany

      Decision of the Opposition Division: Partially upheld the opposition

      Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition

      Pleas in law: Infringement of Article 8(3) of Council Regulation 207/2009 as the Board of Appeal did not properly apply the said provision and, moreover, wrongly rendered a decision based on a flawed understanding of the facts presented; Infringement of Articles 65, 75 and 76 of Council Regulation 207/2009 as the Board of Appeal failed to take the necessary measures to comply with the judgment of the Court of First Instance of 6 September 2006 in case T-6/05 DEF-TEC Defense Technology v OHIM — Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)


title: Case T-624/16: Action brought on 5 September 2016 — Gollnisch v Parliament

text:
               17.10.2016

               EN

               Official Journal of the European Union

               C 383/24

         Action brought on 5 September 2016 — Gollnisch v Parliament
   (Case T-624/16)
   (2016/C 383/34)
   Language of the case: French

      Parties

      Applicant: Bruno Gollnisch (Villiers-le-Mahieu, France) (represented by: N. Fakiroff, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Secretary-General of the European Parliament, dated 1 July 2016, notified on 6 July, relating to the wrongful payment of a sum of EUR 275 984,23 to Mr Bruno GOLLNISCH and ordering the authorising officer responsible and the Institution's accounting officer to recover that sum;

               —

               also annul the notification and measures implementing that decision set out in the letter of the Director-General for Finance of 6 July 2016, ref. D 201920;

               —

               annul simultaneously debit note No 2016-914 signed by the Director-General for Finance on 5 July 2016;

               —

               award to the applicant the sum of EUR 40 000 as compensation for the non-material damage resulting all at once from the unfounded accusations made before any investigation findings were issued, the harm to his reputation, and the very significant disruption to his personal and political life caused by the contested decision;

               —

               also award him the sum of EUR 24 500 in respect of costs incurred for fees for the provision of legal advice, the preparation of the present action, the costs of photocopying and lodging these proceedings and the documents annexed to it;

               —

               order the European Parliament to pay the costs in their entirety;

               —

               in the alternative, if the Court is not entirely persuaded of the relevance and truthfulness of the applicant’s pleas of law and fact, in the interests of the sound administration of justice taking into account the undeniable relationship between the alleged facts upon which the contested decision is based, and those that are the subject of the criminal investigation initiated by the President of the European Parliament:

                           —

                           stay the proceedings pending a final decision, with the authority of ‘res judicata’, delivered by the French ordinary court before which the proceedings initiated by the President of the European Parliament have been brought;

                           —

                           order, consequently, the suspension of the operation of the contested decision until the end of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on 11 pleas in law.

               1.

               First plea in law, alleging the Secretary-General lacks competence to adopt the contested acts. By contrast, the Bureau of the European Parliament has competence for financial decisions relating to members and their groups.

               2.

               Second plea in law, alleging infringement of the general principles of law, as well as the requirements related to good administration, in that the administration of the Parliament ought to have waited for the results of the investigation and proceedings it had initiated before adopting the contested acts.

               3.

               Third plea in law, alleging infringement of the applicant’s rights of defence. The contested acts infringed the presumption of the applicant’s innocence, his right of access to justice, his ability to comment on any document that the administration intends to use against him, and violated his right to cross-examination.

               4.

               Fourth plea in law, alleging the unlawful reversal of the burden of proof, in that the administration of the Parliament requested from the applicant evidence of the work carried out by his assistant and his remuneration after the event.

               5.

               Fifth plea in law, alleging failure to state adequate reasons for the contested acts, which are of a totally arbitrary nature.

               6.

               Sixth plea in law, alleging prejudice to the principles of legal certainty and legitimate expectations, as well as the application of inexistent or retroactive norms.

               7.

               Seventh plea in law, alleging prejudice the political rights of parliamentary assistants.

               8.

               Eighth plea in law, alleging the contested acts are discriminatory and misuse of powers that led to their adoption.

               9.

               Ninth plea in law, alleging prejudice to the independence of members and failure to have regard to the role of local parliamentary assistants.

               10.

               Tenth plea in law, alleging that the claims of the administration of the Parliament are unfounded in fact.

               11.

               Eleventh plea in law, raised in the alternative, alleging a breach of the principle of proportionality.


title: Reference for a preliminary ruling by the Pretura Circondariale di Roma - Sezione Distaccata di Tivoli by order of that court of 4 October 1995 in criminal proceedings against Giuseppe Piccolo (Case C-331/95), Mario Corbo and Others (Case C-332/95) and Miranda Viola (Case C-342/95) (Cases C-331/95, C-332/95 and C-342/95)

text:
No C 333/ 10          EN                       Official Journal of the European Communities                                       9 . 12 . 95
consists of a unilateral intervention in a field exhaustively             system in order to justify a failure to comply with its
and exclusively regulated by the common organization of                   obligations under Community law.
the market .
                                                                          (') OJ No L 119 , 11 . 5 . 1990 , p . 32 .
(') OJ, English Special Edition, Series ( I ) 1965 to 1966 , p. 221 .     ( 2 ) OJ No L 41 , 14 . 2 . 1991 , p . 15 .
                                                                          Reference for a preliminary ruling by the Value Added Tax
Action brought on 17 October 1995 by the Commission of                    Tribunal, Manchester, by direction of that court of
  the European Communities against the Italian Republic                   18 September 1995 , in the case of Goldsmiths (Jewellers )
                        ( Case C-328/95 )                                       Ltd against Commissioners of Customs and Excise
                          ( 95/C 333/ 18 )                                                           ( Case C-330/95 )
                                                                                ( 95/C 333/ 19 )
An action against the Italian Republic was brought before
the Court of Justice of the European Communities on                       Reference has been made to the Court of Justice of the
17 October 1995 by the Commission of the European                         European Communities by direction of the Value Added
Communities, represented by Eugenio March, Legal                          Tax Tribunal, Manchester, of 18 September 1995 , which
Adviser, acting as Agent, with an address for service in                  was received at the Court Registry on 19 October 1995 , for
Luxembourg at the office of Carlos Gomez de la Cruz, of its               a preliminary ruling in the case of Goldsmiths (Jewellers )
Legal Service , Wagner Centre , Kirchberg, Luxembourg.                    Ltd against Commissioners of Customs and Excise, on the
                                                                          following question :
The applicant claims that the Court should :
                                                                          Is the derogation contained in Article 11 ( c ) ( 1 ) of the Sixth
1 . declare that, by not adopting the measures necessary for              Council Directive of 17 May 1977 on the harmonization of
     the correct and full application of Council Regulation               the laws of Member States relating to turnover taxes
     ( EEC ) No 1186/90 (*) of 7 May 1990 extending the                   — Common system of value added tax: uniform
     scope of the Community scale for the classification of               basis of assessment (Directive 77/388/EEC ) (the 'Sixth
     carcases of adult bovine animals and Commission                      Directive ') (') to be interpreted as permitting a Member
     Regulation ( EEC ) No 344/91 ( 2 ) of 13 February 1991               State which enacts provisions for the refund of tax in the
                                                                          case of bad debts to exclude relief where the consideration
     laying down detailed rules for the implementation
     thereof, the Italian Republic has failed to fulfil its               lost consists of something other than money ?
     obligations under those regulations and the second
     paragraph of Article 189 of the EC Treaty .                          (!) OJ No L 145 , 13 . 6 . 1977, p . 1 .
2 . order the Italian Republic to pay the costs .
Pleas in law and main arguments:
Since Article 3 of Regulation ( EEC ) No 1186/90 requires
Member States to take all the measures necessary to ensure                Reference for a preliminary ruling by the Pretura
                                                                          Circondariale di Roma — Sezione Distaccata di Tivoli by
that the provisions are applied and to penalize any                       order of that court of 4 October 1995 in criminal
infringements, it requires the Member States therefore to
                                                                          proceedings against Giuseppe Piccolo ( Case C-331/95 ),
adopt in their national legal system the laws, regulations or             Mario Corbo and Others ( Case C-332/95 ) and Miranda
administrative provisions necessary actually to implement
                                                                                Viola ( Case C-342/95 )
the Community classification scale .
                                                                                ( Cases C-331/95 , C-332/95 and C-342/95 )
                                                                                ( 95/C 333/20 )
The Italian Republic has not yet taken the measures it was
required to adopt for the full and correct implementation
of Council Regulations ( EEC ) No 1186/90 and ( EEC )                      Reference has been made to the Court of Justice of
No 344/91 and has therefore failed to fulfil its obligations               the European Communities by orders of the Pretura
under those regulations and under the second paragraph of                  Circondariale di Roma — Sezione Distaccata di Tivoli
Article 189 of the EC Treaty. The Court has consistently                   ( Rome District Magistrate's Court, Tivoli Division ) of
held that a Member State may not plead provisions,                         4 October 1995 , which were received at the Court Registry
practices or circumstances existing in its internal legal                  on 19 October 1995 ( Cases C-331/95 and C-332/95 ) and
 ---pagebreak--- 9 . 12 . 95           EN                   Official Journal of the European Communities                                      No C 333/ 11
30 October 1995 ( Case C-342/95 ) respectively, for a                 6 . Is the second paragraph of Article 177 of the EC Treaty
preliminary ruling in criminal proceedings against Giuseppe                 to be interpreted as precluding, in cases such as this, the
Piccolo ( Case C-331 /95 ), Mario Corbo and Others ( Case                   grant by the Finance Court of leave to appeal pursuant
C-332/95 ) and Miranda Viola ( Case C-342/95 ). The                         to the second sentence of paragraph 128 ( 3 ) of the
questions referred by the Pretura Circondariale di Roma —                   Finanzgerichtsordnung ( Code of Procedure before
Sezione Distaccata di Tivoli to the Court of Justice for a                  the Finance Court) read in conjunction with
preliminary ruling are identical with those in Case                         paragraph 115 ( 2 ) ( 1 ) thereof?
C-187/95 C ).
                                                                      ( 1 ) OJ, English Special Edition 1968 ( I ), p. 176 .
(') OJ No C 208 , 12 . 8 . 1995 , p . 14 .                            ( 2 ) OJ No L 41 , 18 . 2 . 1992 , p . 9 .
                                                                      ( 3 ) OJ No L 302 , 19 . 10 . 1992 , p . 1 .
Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 21 September 1995 in                Reference for a preliminary ruling by the Bundesfinanzhof
the case of Kriiger GmbH & Co. KG v. Hauptzollamt                     by order of that court of 12 September 1995 in the case of
                        Hamburg-Jonas                                         Wiener S.I. GmbH v. Hauptzollamt Emmerich
                       ( Case C-334/95 )                                                           Case C-338/95 )
                          ( 95/C 333/21 )                                                          ( 95/C 333/22 )
Reference has been made to the Court of Justice of the                Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht                    European Communities by order of the Seventh Chamber
Hamburg ( Finance Court, Hamburg) of 21 September                     of the Bundesfinanzhof ( Federal Finance Court ) of
1995 , which was received at the Court Registry on                    12 September 1995 , which was received at the Court
23 October 1995 , for a preliminary ruling in the case of             Registry on 26 October 1 995 , for a preliminary ruling in the
Kriiger GmbH & Co . KG v. Hauptzollamt Hamburg-Jonas                  case of Wiener S.I. GmbH v. Hauptzollamt Emmerich on the
( Principal Customs Office , Hamburg-Jonas ) on the                   following question:
following questions:
                                                                      Is the term 'nightdresses' within the meaning of tariff
1 . Does Regulation ( EEC ) No 804/68 ( ] ), read in                  heading 60.04 of the 1985 Common Customs Tariff,
     conjunction with the Annex thereto, as amended by                specifically tarif subheading 60.04 B IV b 2 bb, to be
     Regulation ( EEC ) No 374/92 (2 ), infringe the second           interpreted as covering exclusively 'other' under garments
     subparagraph of Article 40 ( 3 ) of the EC Treaty, and is it     which, in view of their characteristics, are clearly intended
     consequently invalid, inasmuch as it does not provide            only to be worn as night wear, or does it also cover products
     for the grant of an export refund for milk and/or milk           which, on the basis of their appearance, are intended mainly,
     products contained in edible preparations falling                but not exclusively, to be worn in bed ?
     within Combined Nomenclature code No 2101 10
     and produced with a basis of extracts, essences or
     concentrates of coffee ?
2 . Does a breach of the prohibition of discrimination                Reference for a preliminary ruling from the Hof van Beroep
     preclude the recovery of an export refund granted in             te Antwerpen by judgment/order of that court of
     respect of milk and/or milk products contained in edible         25 October 1995 in the case of Peter Schepens v. Belgian
     preparations falling within Combined Nomenclature                                                   State
     code No 2101 10 and produced with a basis of extracts                                       ( Case C-340/95 )
     of coffee ?
                                                                                ( 95/C 333/23 )
3 . Is Article 244 of Regulation ( EEC ) No 2913/92 ( 3 ) ( the
     Customs Code ) applicable to the suspension of                   Reference has been made to the Court of Justice of the
     implementation of decisions ordering the recovery of an          European Communities by a judgment of the Hof van
     export refund which has been granted ?                           Beroep ( Court of Appeal ) in Antwerp of 25 October 1995 ,
                                                                      which as received at the Court Registry on 30 October 1995 ,
4 . If the answer to question 3 is in the affirmative : in cases      for a preliminary ruling in the case of Peter Schepens v.
     in which there exists doubt as to the validity of the            Belgian State on the following questions :
     Community legislation on which the decision is based, is
     the suspension of implementation to be determined in              1 . Do Articles 18 ( 4 ) and 27 of the Sixth Council Directive
     accordance with Article 244 of the Customs Code or in                  of 17 May 1977 on the harmonization of the laws of
     accordance with which other criteria ?                                 the Member States relating to turnover taxes (VAT
                                                                            Directive 77/388/EEC ) (') have direct effect in the
5 . If the answer to question 3 is in the negative: in cases in             national legal systems of the Member States and thus in
     which there exists doubt as to the validity of the                     Belgian law ?
     Community legislation on which the decision is based,
     what are the criteria according to which the suspension          2 . If so, does Article 18 (4 ) of the Directive preclude a
     of implementation falls to be determined ?                             Member State from refusing to refund to a taxable


title: Case C-307/13: Judgment of the Court (Seventh Chamber) of 10 July 2014 (request for a preliminary ruling from the Helsingborgs tingsrätt — Sweden) — criminal proceedings against Lars Ivansson, Carl-Rudolf Palmgren, Kjell Otto Pehrsson, Håkan Rosengren (Reference for a preliminary ruling — Internal market — Directive 98/34/EC — Third subparagraph of Article 8(1) — Information procedure in the field of technical rules and regulations — Notion of ‘technical regulation’  — Hens for egg production — Shortening of a timetable for implementation originally envisaged for the entry into force of the technical rule — Obligation to notify — Conditions — Discrepancies between language versions)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/17

         Judgment of the Court (Seventh Chamber) of 10 July 2014 (request for a preliminary ruling from the Helsingborgs tingsrätt — Sweden) — criminal proceedings against Lars Ivansson, Carl-Rudolf Palmgren, Kjell Otto Pehrsson, Håkan Rosengren
   (Case C-307/13) (1)

   ((Reference for a preliminary ruling - Internal market - Directive 98/34/EC - Third subparagraph of Article 8(1) - Information procedure in the field of technical rules and regulations - Notion of ‘technical regulation’ - Hens for egg production - Shortening of a timetable for implementation originally envisaged for the entry into force of the technical rule - Obligation to notify - Conditions - Discrepancies between language versions))
   2014/C 315/24
   Language of the case: Swedish

      Referring court

   Helsingborgs tingsrätt

      Parties in the criminal proceedings before the national court

   Lars Ivansson, Carl-Rudolf Palmgren, Kjell Otto Pehrsson, Håkan Rosengren

      Operative part of the judgment

               1.

               The date finally chosen by the national authorities for the entry into force of a national measure, such as that at issue in the main proceedings, laying down the requirement that hens for egg production are to be kept in housing systems which meet the hens’ need for nests, perches and sand-baths and that the housing system is to be such that the mortality rate and behaviour disorders in the hens are kept to a low level, is subject to the obligation of communication to the European Commission, as laid down in the third subparagraph of Article 8(1) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, where a change to the timetable for the implementation of that national measure was, in effect, made, and was significant in nature, which it is for the national court to ascertain;

               2.

               If the shortening of the timetable for the entry into force of a technical regulation is subject to the obligation of communication to the European Commission, as laid down in the third subparagraph of Article 8(1) of Directive 98/34, as amended by Directive 98/48, the failure to make such a communication would render that national measure inapplicable, such that it could not be enforced against individuals.

      (1)  OJ C 215, 27.7.2013.


title: Case C-347/08: Reference for a preliminary ruling from the Landesgericht Feldkirch (Austria) lodged on 28 July 2008 — Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/11

         Reference for a preliminary ruling from the Landesgericht Feldkirch (Austria) lodged on 28 July 2008 — Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG
   (Case C-347/08)
   (2008/C 272/18)
   Language of the case: German
   Referring court
   Landesgericht Feldkirch
   Parties to the main proceedings

      Applicant: Vorarlberger Gebietskrankenkasse

      Defendant: WGV-Schwäbische Allgemeine Versicherungs AG
   Questions referred

               1.

               Is the reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to Article 9(1)(b) of that regulation to be interpreted as meaning that a social security institution, to which the claims of the directly injured party have passed by operation of law (Paragraph 332 of the Allgemeines Sozialversicherungsgesetz (General Social Insurance Law, ASVG)), may bring an action directly against the insurer in the courts for the place in a Member State where the social security institution is established, provided that such a direct action is permitted and the insurer is domiciled in a Member State?

               2.

               If the answer to Question 1 is in the affirmative: Does that jurisdiction exist even if at the time of bringing the action the directly injured party is not permanently or ordinarily resident in the Member State in which the social security institution is established?

      (1)  OJ 2001 L 12, p. 1.


title: Case C-122/13: Order of the Court (Sixth Chamber) of 30 January 2014 (request for a preliminary ruling from the Tribunale ordinario di Firenze — Italy) — Paola C v Presidenza del Consiglio dei Ministri (Request for a preliminary ruling — Judicial cooperation in criminal matters — Directive 2004/80/EC — Article 12 — Compensation of victims of violent intentional crime — Purely internal situation — Clear lack of jurisdiction of the Court)

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/19

         Order of the Court (Sixth Chamber) of 30 January 2014 (request for a preliminary ruling from the Tribunale ordinario di Firenze — Italy) — Paola C v Presidenza del Consiglio dei Ministri
   (Case C-122/13) (1)

   ((Request for a preliminary ruling - Judicial cooperation in criminal matters - Directive 2004/80/EC - Article 12 - Compensation of victims of violent intentional crime - Purely internal situation - Clear lack of jurisdiction of the Court))
   2014/C 112/22
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Firenze

      Parties to the main proceedings

      Applicant: Paola C

      Defendant: Presidenza del Consiglio dei Ministri

      Re:

   Request for a preliminary ruling — Tribunale Ordinario di Firenze — Interpretation of Article 12 of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15) — Scope — Legislation not providing a compensation scheme for victims of violent intentional crime committed in national territory ensuring fair and appropriate compensation to all victims of violent crimes.

      Operative part of the order

   The European Court of Justice clearly has no jurisdiction to answer the question put by the Tribunale ordinario di Firenze (Italy).

      (1)  OJ C 141, 18.5.2013.


title: Joined Cases C-392/04 and C-422/04: Judgment of the Court (Grand Chamber) of 19 September 2006 (references for a preliminary ruling from the Bundesverwaltungsgericht, Germany) — i-21 Germany GmbH and Arcor AG & Co. KG v Bundesrepublik Deutschland (Telecommunication services — Directive 97/13/EC — Article 11(1) — Fees and charges for individual licences — Article 10 EC — Primacy of Community law — Legal certainty — Final administrative decision)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/9

         Judgment of the Court (Grand Chamber) of 19 September 2006 (references for a preliminary ruling from the Bundesverwaltungsgericht, Germany) — i-21 Germany GmbH and Arcor AG & Co. KG v Bundesrepublik Deutschland
   (Joined Cases C-392/04 and C-422/04) (1)

   (Telecommunication services - Directive 97/13/EC - Article 11(1) - Fees and charges for individual licences - Article 10 EC - Primacy of Community law - Legal certainty - Final administrative decision)
   (2006/C 281/14)
   Language of the cases: German
   Referring court
   Bundesverwaltungsgericht (Germany)
   Parties to the main proceedings

      Appellants: i-21 Germany GmbH (C-392/04), Arcor AG & Co. KG (C-422/04)

      Respondent: Bundesrepublik Deutschland
   Re:
   Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 10 EC and Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 5) — Fees applicable to the undertakings which have individual licences, calculated to anticipate the national regulatory authority's general administrative costs over a period of 30 years
   Operative part of the judgment

               1.

               Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services precludes the application of a fee for individual licences calculated by taking into account the regulatory body's general administrative costs linked to implementing those licences over a period of 30 years.

               2.

               Article 10 EC, read in conjunction with Article 11(1) of Directive 97/13, requires the national court to ascertain whether legislation which is clearly incompatible with Community law, such as that on which the fee assessments at issue in the main proceedings are based, constitutes manifest unlawfulness within the meaning of the national law concerned. If that is the case, it is for the national court to draw the necessary conclusions under its national law with regard to the withdrawal of those assessments.

      (1)  OJ C 273, 6.11.2004.

      OJ C 284, 20.11.2006.


title: Case T-269/15: Action brought on 28 May 2015 — Novartis Europharm v Commission

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/36

         Action brought on 28 May 2015 — Novartis Europharm v Commission
   (Case T-269/15)
   (2015/C 279/45)
   Language of the case: English

      Parties

      Applicant: Novartis Europharm Ltd (Camberley, United Kingdom) (represented by: C. Schoonderbeek, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision; and

               —

               order the European Commission to pay its own costs and those of Novartis.

      Pleas in law and main arguments

   By its present action, the applicant seeks the annulment of Commission Decision C(2015) 1977 final of 18 March 2015 granting a marketing authorisation to Pari Pharma for the medicinal product for human use ‘Vantobra — tobramycine’.
   In support of the action, the applicant relies on two pleas in law.

               1.

               First plea in law, alleging that the decision of the European Commission is unlawful in that it constitutes an infringement of the orphan market exclusivity rights of Novartis Europharm Ltd. for its product TOBI Podhaler pursuant to Article 8(1) of Regulation (EC) No. 141/2000 (1) because the period of orphan market exclusivity has not yet expired while the conditions for granting a derogation of market exclusivity pursuant to Article 8(3) of the same Regulation are not fulfilled.

               2.

               Second plea in law, alleging that the decision of the European Commission is also unlawful because it does not contain a statement of reasons as required by Article 296 of the Treaty on the Functioning of the European Union and Article 81(1) of Regulation (EC) No. 726/2004 (2).

      (1)  Regulation (EC) No 141/2000 of the European Parliament and of the Council of 16 December 1999 on orphan medicinal products (OJ L 18, 22.1.2000, p. 1).

      (2)  Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ L 136, 30.4.2004, p. 1).


title: JUDGMENT OF THE COURT (Fifth Chamber) of 13 June 1996 in Case C-205/94 (reference for a preliminary ruling from the Finanzgericht Baden-Württemberg): Binder GmbH & Co. International v. Hauptzollamt Stuttgart-West (Frozen strawberries - Protective measures)

text:
20 . 7 . 96         I HN       1            Official Journal of the European Communities                                No C 210/3
              JUDGMENT OF THE COURT                                                    JUDGMENT OF THE COURT
                          of 11 June 1996                                                        ( Fifth Chamber )
in Case C-2/94 (reference for a preliminary ruling from the                                      of 13 June 1996
College van Beroep voor het Bedrijfsleven ): Denkavit
                                                                       in Case C-205/94 ( reference for a preliminary ruling from
Internationaal BV and Others v. Kamer van Koophandel en
      Fabrieken voor Midden-Gelderland and Others ( ! )                the Finanzgericht Baden-Wiirttemberg): Binder GmbH &
                                                                             Co. International v. Hauptzollamt Stuttgart-West (')
(Directive 69/335/EEC — Registration levy payable to                             (Frozen strawberries — Protective measures)
               Chamber of Trade and Industry)
                                                                                ( 96/C 210/05 )
                            ( 96/C 210/04 )
                (Language of the case: Dutcb)                                           (Language of the case: German)
(Provisional translation; the definitive translation will be           (Provisional translation; the definitive translation will be
          published in the European Court Reports)                                published in the European Court Reports)
In Case C-2/94 : reference to the Court under Article 177 of
                                                                       In Case C-205/94 : reference to the Court under Article 177
the EC Treaty by the College van Beroep voor het
Bedrijfsleven ( Administrative Court for Trade and Industry            of the EC Treaty from the Finanzgericht ( Finance Court )
of the Netherlands ) for a preliminary ruling in the                   Baden-Wiirttemberg ( Germany ) for a preliminary ruling in
proceedings pending before that court between                          the proceedings pending before that court between Binder
Denkavit Internationaal BV, Galveston BV, Heklicht                     GmbH & Co . International and the Hauptzollamt
Scheepvaartbelangen BV, C. Roeleveld Beheer BV and                     Stuttgart-West — on the validity of Commission Regulation
Others, R. J. Schippefelt, Sigarenhandel Ben Sterk vof, J. H.          ( EEC ) No 2198/90 of 27 July 1990 on protective measures
van Werkhoven Holding Maarssen BV and Kamer van                        applicable to imports of frozen strawberries, frozen
Koophandel en Fabrieken voor Midden-Gelderland, Kamer                  raspberries, provisionally preserved strawberries and
van Koophandel en Fabrieken voor ' s-Gravenhage , Kamer                provisionally preserved raspberries originating in Poland
van Koophandel en Fabrieken voor Amsterdam, Kamer van                  ( OJ No L 198 , 1990 , p . 53 ), and Commission Regulation
Koophandel en Fabrieken voor Utrecht en Omstreken — on                 ( EEC ) No 3797/90 of 21 December 1990 on protective
the interprétation of Council Directive 69/335/EEC of                  measures applicable to imports of certain semi-processed
 17 July 1969 concerning indirect taxes on the raising of              red fruits originating in Poland and Yugoslavia ( OJ No
capital ( OJ, English Special Edition 1969 ( II ), p . 412 ), the      L 365 , 1990, p . 22 ) — the Court ( Fifth Chamber ),
 Court, composed of: G. C. Rodrîguez Iglesias, President,              composed of: D. A. O. Edward, President of the Chamber,
 C. N. Kakouris, D. A. O. Edward, J. -P. Puissochet                    J. -P. Puissochet ( Rapporteur ), J. C. Moitinho de Almeida ,
 ( Rapporteur ) and G. Hirsch ( Présidents of Chambers ), G. F.        L. Sevon and M. Wathelet, Judges; F. G. Jacobs,
Mancini, J. C. Moitinho de Almeida, C. Gulmann, J. L.                  Advocate-General ; L. Hewlett, Administrator, for the
Murray, P. Jann, H. Ragnemalm and L. Sevón, Judges; F. G.              Registrar, gave a judgment on 13 June 1996 , the operative
Jacobs, Advocate-General; L. Hewlett, Administrator, for               part of which is as follows :
 the Registrar, has given a judgment on 11 June 1996 in
which it rules :
                                                                        Consideration of the questions referred for a preliminary
                                                                       ruling has disclosed no factor affecting the validity of
Article 10 (c) of Council Directive 69/335/EEC of 2 7 July              Commission Regulation (EEC) No 2198/90 of27 July 1 990
 1 969 concerning indirect taxes on the raising ofcapital must         on protective measures applicable to imports of frozen
 be interpreted as not prohibiting a levy which is payable             strawberries, frozen raspberries, provisionally preserved
 annually by virtue ofthe registration ofan undertaking with           strawberries and provisionally preserved raspberries
 a Chamber of Trade and Industry, even if that operation                originating in Poland or of Commission Regulation (EEC)
 also serves, where the undertaking is owned by a capital              No 3797/90 of 21 December 1990 on protective measures
 company, as registration of that company, without that                applicable to imports of certain semi-processed red fruits
 latter formality being accompanied by an increase in the levy          originating in Poland and Yugoslavia.
 in question.
                                                                        ( ] ) OJ No C 275 , 1 . 10 . 1994 .
  C ) OJ No C 76 , 12 . 3 . 1994 .


title: Case C-9/06 P: Judgment of the Court (Fourth Chamber) of 29 November 2007 — Tomás Salazar Brier v Commission of the European Communities (Appeals — Officials — Remuneration — Expatriation allowance — Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations — Concept of work done for another State )

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/6

         Judgment of the Court (Fourth Chamber) of 29 November 2007 — Tomás Salazar Brier v Commission of the European Communities
   (Case C-9/06 P) (1)

   (Appeals - Officials - Remuneration - Expatriation allowance - Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations - Concept of ‘work done for another State’)
   (2008/C 22/10)
   Language of the case: Spanish
   Referring court
   Commission of the European Communities
   Parties to the main proceedings

      Applicant: Tomás Salazar Brier (represented by R. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, abogados)

      Other party to the proceedings: Commission of the European Communities, (represented by J. Currall, acting as Agent, assisted by J. Gutiérrez Gisbert, J. Rivas Andrés and M. Canal, abogado)
   Re:
   Appeal against the judgment of the Court of First Instance (First Chamber) of 25 October 2005 Salazar Brier v Commission of the European Communities (T-83/03), dismissing an action for annulment of the Commission's decision of 28 July 2003 impliedly refusing the applicant's complaint of 24 February 2003 and its express refusal, on 24 March 2003, to pay the applicant the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith
   Operative part of the judgment

               1.

               Dismisses the appeal;

               2.

               Orders Mr Salazar Brier to pay the costs.

      (1)  OJ C 60 11.3.2006.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 11 January 1996 in Case C-480/93 P: Zunis Holding SA and Others v. Commission of the European Communities (Appeals - Competition - Merger control - Admissibility of an action for annulment of a decision refusing to re-open the procedure)

text:
16 . 3 . 96           EN                   Official Journal of the European Communities                                   No C 77/3
               JUDGMENT OF THE COURT                                  Netherlands ( Agents : J. W. de Zwaan and J. S. van den
                         ( Fifth Chamber)                             Oosterkamp ) — application for a declaration that, by
                                                                      adopting on 19 September 1990 an order derogating from
                      of 11 January 1996                              the Margarinebesluit without notifying it to the
in Case C-480/93 P: Zunis Holding SA and Others v.                    Commission at the drafting stage, the Kingdom of the
        Commission of the European Communities (')                    Netherlands has failed to fulfil its obligations under Article 8
(Appeals — Competition — Merger control —                             of Council Directive 83/189/EEC of 28 March 1983 laying
Admissibility of an action for annulment of a decision                down a procedure for the provision of information in the
              refusing to re-open the procedure)                      field of technical standards and regulations ( OJ No L 109,
                                                                      1983 , p. 8 ), as amended by Council Directive 88/ 182/EEC
                            ( 96/C 77/04 )                            of 22 March 1988 ( OJ No L 81 , 1988 , p. 75 ), — the Courth
                                                                      ( Sixth Chamber ), composed of G. Hirsch, acting for the
                (Language of the case: English)                       President of the Chamber, G. F. Mancini , F. A.
                                                                      Schockweiler, J. L. Murray and H. Ragnemalm
                                                                      ( Rapporteur), Judges; Advocate General : D. Ruíz-Jarabo
In Case C-480/93 P, Zunis Holding SA, Finan SRL and                   Colomer; Registrar: D. Louterman-Hubeau, Principal
Massinvest SA ( represented by Nicholas Forwood QC and                Administrator, gave a judgment on 11 January 1996 , in
Stanley Crossick ) — appeal against the judgment of the               which it :
Court of First Instance of the European Communities
( Second Chamber ) of 28 October 1993 in Case T-83/92
                                                                      1 . Declares that, by adopting on 19 September 1990 an
Zunis Holding and Others v. Commission [ 1 993 ] ECR
11-1169, seeking to have that judgment set aside, the other                order derogating from the Margarinebesluit without
party to the proceedings being the Commission of the                       notifying it to the Commission at the drafting stage, the
European Communities ( Agents : Giuliano Marenco and                       Kingdom of the Netherlands has failed to fulfil its
Richard Lyal ) — the Court ( Fifth Chamber ), composed of                  obligations under Article 8 of Council Directive
D. A. O. Edward , President of the Chamber, J. -P.                         83/189/EEC of 28 March 1983 laying down a
                                                                           procedure for the provision ofinformation in the field of
Puissochet ( Rapporteur ), J. C. Moitinho de Almeida ,
C. Gulmann and P. Jann, Judges; C. O. Lenz, Advocate
                                                                           technical standards and regulations.
General; L. Hewlett, Administrator, for the Registrar, has
given a judgment on 11 January 1996 , in which it:                    2 . Orders the Kingdom of the Netherlands to pay the
                                                                           costs .
1 . Dismisses the appeal.
                                                                      (') Of No C 331 , 26 . 11 . 1994 .
2 . Orders the appellants to pay the costs.
(') OJ No C 59 , 26 . 2 . 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                of 16 January 1996
                                                                      in Case C-130/91 REV II ISAE/VP ( Instituto Social de
                                                                      Apoio ao Emprego e a Valorização Profissional) and Others
               JUDGMENT OF THE COURT                                      v. the Commission of the European Communities ( l )
                         ( Sixth Chamber )                                     (Application for revision — Inadmissibility)
                                                                                ( 96/C 77/06 )
                      of 11 January 1996
in Case      C-273/94: Commission of the              European
      Communities v. Kingdom of the Netherlands ( 1 )                               (Language of the case: Portuguese)
(Failure of a Member State to fulfil its obligations —
Obligation to give prior notification under Directive                 (Provisional translation; the definitive translation will be
                            83/189/EEC)                                         published in the European Court Reports)
                            ( 96/C 77/05 )
                                                                      In Case C-130/91 REV II : ISAE/VP ( Instituto Social de
                                                                      Apoio ao Emprego e a Valorização Profissional ) and
                 (Language of the case: Dutch)                        Interdata ( Centro de Processamento de Dados Limidada )
                                                                      ( represented by Agostinho Amado Rodrigues ) v. the
(Provisional translation; the definitive translation will be          Commission of the European Communities ( Agent: Ana
          published in the European Court Reports)                    Maria Alves Vieira ) — application for revision of the order
                                                                      of the Court of Justice of 14 January 1992 in Case C-130/91
                                                                      ISAE/VP and Interdata v. Commission [ 1992] ECR 1-69, the
In Case C-273/94 : Commission of the European                         Court, composed of G. C. Rodriguez Iglesias, President,
Communities ( Agent: H. van Lier ) v. Kingdom of the                  C. N. Kakouris, D. A. O. Edward, J. -P. Puissochet and


title: Order of the Court of First Instance of 12 June 2001 in Case T-95/98 DEP, Christos Gogos v Commission of the European Communities (Taxation of coverable costs)

text:
C 317/24               EN                     Official Journal of the European Communities                                       10.11.2001
                                                        COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              J. Currall) — application for taxation of costs to be reimbursed
                                                                         by the defendant to the applicant following the judgment of
                                                                         the Court of First Instance 23 March 2000 in Case T-95/98
                          of 5 July 2001
                                                                         Gogos v Commission [2000] ECR II-219 — the Court of
                                                                         First Instance (Second Chamber), composed of A.W.H. Meij,
in Case T-25/99, Colin Arthur Roberts and Valerie Ann                    President, and A. Potocki and J. Pirrung, Judges; H. Jung,
 Roberts v Commission of the European Communities (1)                    Registrar, has made an order on 12 June 2001, in which it:
(Competition — Beer supply agreements — Complaint —                      Fixes the total amount of costs recoverable by the applicant in Case
    Article 85(1) of the EC Treaty (now Article 81(1) EC)                T-95/98 at BEF 800 000.
                         (2001/C 317/46)
                                                                         (1) OJ C 258 of 15.8.1998.
                   (Language of the case: English)
In Case T-25/99 Colin Arthur Roberts and Valerie Ann
Roberts, residing in Kempston (United Kingdom), represented
by B. Bedford, Barrister, and S. Ferdinand and J. Kelly,
Solicitors, against Commission of the European Communities
(Agents: Klaus Wiedner and Nicholas Khan) — application for
annulment of the Commission’s decision of 12 November                          ORDER OF THE COURT OF FIRST INSTANCE
1998 — the Court of First Instance (Third Chamber), compo-
sed of J. Azizi, President, K. Lenaerts and M. Jaeger, Judges;
J. Palacio González, Administrator, for the Registrar, has given                                  of 19 June 2001
a judgment on 5 July 2001, in which it:
                                                                         in Case T-145/00 Jutta Hotzel-Wagenknecht v Com-
1.    Dismisses the application;                                                    mission of the European Communities (1)
2.    Orders the applicants to pay the costs.                            (Officials — Survivor’s pension — Reduction — Period
                                                                          within which an action must be brought — Inadmissibility)
(1) OJ C 86 of 27.3.1999.
                                                                                (2001/C 317/48)
                                                                                (Language of the case: German)
                                                                         In Case T-145/00: Jutta Hotzel-Wagenknecht, residing in Alfaz
      ORDER OF THE COURT OF FIRST INSTANCE                               del Pi (Spain), represented by H.-M. Becker, Rechtsanwalt,
                                                                         against Commission of the European Communities (Agents:
                                                                         J. Currall, C. Berardis-Kayser and B. Wägenbaur) — application,
                         of 12 June 2001                                 primarily, for the annulment of the Commission decision of
                                                                         25 May 1999 reducing the applicant’s survivor’s pension
in Case T-95/98 DEP, Christos Gogos v Commission of                      — the Court of First Instance (First Chamber, Extended
                the European Communities (1)                             Composition), composed of: B. Vesterdorf, President,
                                                                         A. Potocki, J. Pirrung, M. Vilaras and N.J. Forwood, Judges;
                                                                         H. Jung, Registrar, has made an order on 19 June 2001, the
                  (Taxation of coverable costs)                          operative part of which is as follows:
                         (2001/C 317/47)                                 1.    The application is dismissed as being inadmissible.
                    (Language of the case: Greek)                        2.    Each party shall bear its own costs.
In Case T-95/98 DEP; Christos Gogos an official of the
                                                                         (1) OJ C 233 of 12.8.2000.
Commission of the European Communities represented by
C.N. Tagaras, avocat, with an address for services in Luxem-
bourg, v Commission of the European Communities (Agent:


title: Case T-372/05: Action brought on  5 October 2005  — Giant (China)/Council

text:
               10.12.2005

               EN

               Official Journal of the European Union

               C 315/17

         Action brought on 5 October 2005 — Giant (China)/Council
   (Case T-372/05)
   (2005/C 315/31)
   Language of the case: English
   Parties

      Applicant(s): Giant (China) Co., Ltd (Kunshan City, People's Republic of China) [represented by: P. De Baere, lawyer]

      Defendant(s): Council of the European Union
   Form of order sought

               —

               Annul Council Regulation (EC) No 1095/2005 (1), of 12 July 2005, imposing a definitive anti-dumping duty on imports of bicycles originating in Vietnam, and amending Regulation (EC) No 1524/2000, imposing a definitive anti-dumping duty on imports of bicycles originating in the People's Republic of China, insofar as it rejects the applicant's market economy status claim in breach of Article 2(7)(b), in connection with Article 2(7)(c), of Council Regulation 384/96 (‘the basic regulation’), violates Article 11(10), of the basic regulation, in that it rejects the applicant's claim for non-deduction of the anti-dumping duty from the constructed export price and violates Article 253 EC, inasmuch as it fails to state reasons;

               —

               order the Council to bear the costs of the proceedings.

         Pleas in law and main arguments
   The applicant, a limited company incorporated under Chinese law, mainly produces bicycles and parts thereof, exporting to the Community. Being affected by the contested measures, the applicant submitted an application to the Commission, requesting to benefit from market economy status (‘MES’). The applicant also submitted anti-dumping questionnaires and engaged in correspondence with the Commission raising a number of issues.
   The applicant now challenges the contested Regulation, first addressing the rejection of its MES claim. According to the applicant, its claim was rejected on the consideration that, due to the existence of an export licensing system, the applicant's decisions regarding sales prices and quantities, were not taken in response to market signals and without significant state interference. The applicant argues that Article 2(7)(b), of the basic regulation, should be interpreted in the sense that MES should be granted if in a particular case market economy conditions prevail, notwithstanding the existence of national legislation or mechanisms not conforming with those in place in market economies. Since the contested Regulation failed to address its own particular situation, the applicant considers that there has been a manifest error of assessment leading to a violation of Article 2(7)(b). In the same context, the applicant invokes a violation of Article 253 EC inasmuch as the contested Regulation allegedly fails to state the reasons for which the MES claim was rejected.
   The applicant also challenges the rejection of his claim that the amount of the anti-dumping duty should not be deducted from the constructed export price, as a cost between importation and resale, in accordance with Article 11(10) of the basic regulation. The applicant considers that the Council erred in law, insofar as it considered that there was no movement in the resale and subsequent selling prices by reference to the applicant's export prices established in the previous investigations. According to the applicant, there was no export price established for it in previous investigations. Further, the applicant argues that Article 11(10) does not require the movement to be assessed by reference to export prices established in the previous investigations.

      (1)  OJ L 183, p. 1.


title: Case C-176/06 P: Appeal brought on  5 April 2006  by Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH against the judgment of the Court of First Instance (Fourth Chamber) delivered on  26 January 2006  in Case T-92/02 Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH v Commission of the European Communities supported by E.ON Kernkraft GmbH, RWE Power AG, EnBW Energie Baden-Württemberg AG and Hamburgische Electricitäts-Werke AG

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/35

         Appeal brought on 5 April 2006 by Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH against the judgment of the Court of First Instance (Fourth Chamber) delivered on 26 January 2006 in Case T-92/02 Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH v Commission of the European Communities supported by E.ON Kernkraft GmbH, RWE Power AG, EnBW Energie Baden-Württemberg AG and Hamburgische Electricitäts-Werke AG
   (Case C-176/06 P)
   (2006/C 131/66)
   Language of the case: German
   Parties

      Appellants: Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH (represented by: D. Fouquet and P. Becker, Rechtsanwälte)

      Other parties to the proceedings: Commission of the European Communities, E.ON Kernkraft GmbH, RWE Power AG, EnBW Energie Baden-Württemberg AG, Hamburgische Electricitäts-Werke AG
   Form of order sought

               —

               Set aside the judgment of the Court of First Instance of 26 January 2006 in Case T-92/02 Stadtwerke Schwäbisch Hall GmbH and Others v Commission of the European Communities
                   (1);

               —

               Insofar as the state of the proceedings permits the Court to give final judgment, annul Commission Decision C (2001) 3967 final of 11 December 2001 to the extent that the Commission determines therein that reserves for disposal purposes and for the permanent closure of nuclear power stations in the Federal Republic of Germany do not constitute State aid for the purposes of Article 87(1) EC;

               —

               Insofar as the state of the proceedings does not permit the Court to give final judgment, refer the case back to the First Chamber, Extended Composition, of the Court of First Instance for rehearing, thus retaining the judicial body which was competent to hear the applicants' initial proceedings;

               —

               Order the Commission to pay the costs of the initial proceedings;

               —

               Order the respondent to pay the costs of the appeal proceedings.

         In the alternative:

               —

               Dismiss the interveners' application that the appellants pay their costs in the proceedings before the Court of First Instance.

         Pleas in law and main arguments
   In these appeal proceedings the appellants challenge the judgment of the Court of First Instance by means of which it declared lawful the Commission's determination that the tax deferral applied to reserves for disposal purposes and for the permanent closure of nuclear power stations in the Federal Republic of Germany cannot be regarded as constituting State aid for the purposes of Article 87(1) EC. As grounds for their appeal the appellants submit infringement of procedural law and substantive Community law.
   The Court of First Instance transferred the case, despite its obvious legal complexities and significance and although there were no special circumstances for so doing, from the First Chamber, Extended Composition, to the Fourth Chamber with a bench of three judges. That groundless and unjustified transfer of the case to a smaller chamber after it had been pending for a number of years infringed the appellants' right to a hearing before the judicial body laid down by law.
   The Court of First Instance did not distinguish between the requirements relating to the existence of State aid and the requirements relating to the initiation of a full formal assessment. As in the present case there are, in reviewing whether the planned aid is compatible with the common market, serious difficulties of a factual and legal nature concerning the existence of a State guarantee and whether the obligations regarding permanent closure and disposal are sufficiently specified and also concerning the actual amounts of the reserves, the tax advantages and the total cost of permanent closure, the Commission was not entitled to restrict itself only to the preliminary stage. On the contrary, in this case it was under an obligation to open the formal stage of the investigation procedure.
   Furthermore, the Court of First Instance did not properly assess the issue of the selectivity of the German reserve scheme per se. It failed to realise that the tax exemption for reserves in the nuclear industry is an exception to the general tax scheme. That exception is however only permitted if the future obligations have been determined in a sufficiently concrete manner. That is not however the case here: the criteria relating to the time of permanent closure, to the obligations associated with permanent closure and to the legal consequences of failure to comply with the provisions were not determined sufficiently at all. However, even if no selectivity as regards the aid is ascertainable de jure, a measure can contravene the law relating to State aid if it is liable to favour certain undertakings. The directive liberalising the internal market in electricity requires that Member States actively reduce discrimination and distortion of competition. The Court of First Instance did not however find that the Federal Government was under an obligation to alter the German practice as regards reserves which, by selectively supporting individual economic sectors, constitutes a direct infringement of the directive and the principle of effectiveness.
   Lastly, the appellants contend that the contested judgment wrongly orders them to pay the interveners' costs. As the interveners only joined the proceedings at a very late stage, at which all the main pleadings had already been submitted, their contribution in support of the defendant could only have been marginal. That situation does not justify liability for all the costs on the part of the applicants.

      (1)  OJ 2006 C 74, p. 15.


title: Case C-154/00: Action brought on 25 April 2000 by the Commission of the European Communities against the Hellenic Republic

text:
24.6.2000              EN                    Official Journal of the European Communities                                       C 176/15
The Commission of the European Communities claims that                  Action brought on 25 April 2000 by the Commission of
the Court should:                                                       the European Communities against the Hellenic Republic
— Declare that, by failing to transpose fully and correctly
    Council Directive 86/609/EEC of 24 November 1986 on                                         (Case C-154/00)
    the approximation of laws, regulations and administrative
    provisions of the Member States regarding the protection
    of animals used for experimental and other scientific
    purposes (1), and in particular Articles 4, 7, 11, 12, 18 and                               (2000/C 176/26)
    22 thereof, the French Republic has failed to fulfil its
    obligations under that directive and under the Treaty
    establishing the European Community;
                                                                        An action against the Hellenic Republic was brought before
                                                                        the Court of Justice of the European Communities on 25 April
— Order the French Republic to pay the costs.                           2000 by the Commission of the European Communities,
                                                                        represented by Maria Patakia, of its Legal Service, with an
                                                                        address for service in Luxembourg at the office of Carlos
                                                                        Gómez de la Cruz, of its Legal Service, Wagner Centre,
Pleas in law and main arguments                                         Kirchberg.
— Failure to transpose Article 4 and incomplete transposition
    of Article 7(3) of the directive: the provisions and pro-
    cedures notified by the French authorities, taken as a              The Commission claims that the Court should:
    whole, cannot be regarded as correctly transposing Articles
    4 and 7(3). It is clear from the presentation given by the
    French authorities that the procedures employed by the              — declare that, by failing to lay down in the national law for
    Ministry of the Environment when reviewing an appli-                    the implementation of Directive 85/374/EEC (1) the lower
    cation for authorisation amount to nothing more than                    threshold of ECU 500 prescribed in Article 9(b) of
    administrative practice and cannot be regarded as consti-               that directive, the Hellenic Republic has only partially
    tuting proper performance of the obligations which, under               implemented Article 9(b) of Directive 85/374/EEC;
    Article 249 of the Treaty, fall upon the Member States to
    which the directive is addressed.
                                                                        — order the Hellenic Republic to pay the costs.
— Failure to transpose Article 11 of the directive: the
    Commission submits that Article 2(b) of Decree No 87-
    848 cannot be regarded as transposing Article 11 of the
    directive, in that the freeing of laboratory animals, within        Pleas in law and main arguments
    the meaning of the directive, is not governed by legally
    binding provisions.
— Incomplete transposition of Article 12(2) of the directive:           It is not open to a Member State to substitute its own
    no French provisions exist which call for the declaration           assessment with regard to the protection accorded to the
    or the authorisation required under Article 12(2) for               various interests by the Community legislature, and in particu-
    experiments which entail severe pain which is likely to be          lar it may not increase the strict liability of the producer
    prolonged.                                                          beyond the limits laid down by the directive.
— Failure to transpose Article 18(1) and (3) of the directive:
    there is nothing in the reply given by the French authorities       As the Commission also observes in its reasoned opinion, the
    to indicate that these provisions have been fully transposed.       lower threshold of ECU 500 which is prescribed in Article 9(b)
                                                                        of the directive is not optional or a ‘minimum protection
                                                                        clause’ but lays down a single and uniform system for all the
— Failure to transpose Article 22(1) of the directive: as regards       Member States, restricting the directive’s field of application to
    recognition of the validity of data generated by experiments        material damage which exceeds the abovementioned amount.
    carried out within the territory of another Member State,
    no definitive text has yet been sent to the Commission.
                                                                        (1) OJ L 210, 7.8.1985, p. 29.
(1) OJ 1986 L 358, p. 1.