title: Judgment of the Court of First Instance of 9 October 2002 in Case T-134/01: Hans Fuchs Versandschlachterei KG v Commission of the European Communities (Regulation (EC) No 111/1999 — Regulation (EC) No 1135/1999 — Food-aid to Russia — Invitation to tender for mobilisation — Invitation to tender for transport — Contractual relationship — Arbitration clause — Claim for performance of a contract — Admissibility — Provision of certificates for each means of transport — Default interest)

text:
C 323/34                 EN                      Official Journal of the European Communities                                         21.12.2002
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 3 October 2002
                         of 9 October 2002
                                                                            in Case T-6/02: Michael Gerhard Franz Platte v Com-
                                                                                mission of the European Communities (1)
in Case T-134/01: Hans Fuchs Versandschlachterei KG v
        Commission of the European Communities ( 1)                         (Officials — Appointment — Classification in grade —
                                                                                Article 31(2) of the Staff Regulations)
(Regulation (EC) No 111/1999 — Regulation (EC) No 1135/                                               (2002/C 323/55)
1999 — Food-aid to Russia — Invitation to tender for
mobilisation — Invitation to tender for transport — Contrac-                                    (Language of the case: French)
tual relationship — Arbitration clause — Claim for perform-
ance of a contract — Admissibility — Provision of certifi-
     cates for each means of transport — Default interest)
                                                                            In Case T-6/02: Michael Gerhard Franz Platte, an official of the
                                                                            Commission of the European Communities, residing in Tielt-
                                                                            Winge, Belgium, represented by X. De Kesel and S. Peeters,
                           (2002/C 323/54)
                                                                            lawyers, against Commission of the European Communities
                                                                            (Agent: V. Joris and C. Berardis-Kayser) — application for
                                                                            annulment of the Commission’s decision of 31 January 2001
                     (Language of the case: German)                         definitively classifying the applicant in grade C 5, step 3 — the
                                                                            Court of First Instance (Single Judge); B. Pastor, Deputy
                                                                            Registrar, gave a judgment on 3 October 2002, in which it:
                                                                            1.     Dismissed the application;
In Case T-134/01, Hans Fuchs Versandschlachterei KG, estab-                 2.     Ordered each of the parties to bear its own costs.
lished in Duisburg (Germany), represented by U. Schrömbges,
L. Harings and C. Hütter, lawyers, v Commission of the
European Communities (Agent: M. Niejahr): Application for                   (1 ) OJ C 84 of 6.4.02.
an order that, primarily, the Commission or, alternatively, the
Bundesanstalt für Landwirtschaft und Ernährung, pay a sum of
DEM 13 130,04 (EUR 6 713,28), plus interest at an annual
rate of 8 % from 1 March 2000, the Court of First Instance
(Second Chamber), composed of: R. M. Moura Ramos, Presi-
dent, J. Pirrung and A. W. H. Meij, Judges; H. Jung, Registrar,
has given a judgment on 9 October 2002, in which it:
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 30 September 2002
1.     Orders the Commission to pay to the applicant the sum of
       EUR 6 713,28, together with default interest thereon from
       2 May 2000 until full payment. The rate of default interest to       in Case T-25/01: Francisco Miguel França v Commission
       be applied is to be calculated on the basis of the European                          of the European Communities ( 1)
       Central Bank’s rate for its main refinancing operations, in force
       during the period concerned, plus two percentage points;             (Officials — Special leave for voting — Travelling time —
                                                                            Supporting evidence — Lack of jurisdiction — Duty of
                                                                            cooperation and fairness — Principle of proportionality —
2.     For the rest, dismisses the application;                                       Action manifestly devoid of any basis in law)
3.     Orders the Commission to pay the costs.                                                        (2002/C 323/56)
                                                                                (Language of the case: Portuguese)
( 1) OJ C 245 of 1.9.2001.
                                                                            In Case T-25/01: Franciso Miguel Viana França, an official of
                                                                            the Commission of the European Communities, residing in
                                                                            Brussels, represented by G. Gentil Anastácio, lawyer, against


title: Case C-51/15: Judgment of the Court (Third Chamber) of 21 December 2016 (request for a preliminary ruling from the Oberlandesgericht Celle — Germany) — Remondis GmbH & Co. KG Region Nord v Region Hannover (References for a preliminary ruling — Article 4(2) TEU — Respect for the national identity of Member States inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government — Internal organisation of the Member States — Regional authorities — Legal instrument creating a new public-law entity and organising the transfer of powers and responsibilities for the performance of public tasks — Public procurement — Directive 2004/18/EC — Article 1(2)(a) — Concept of ‘public contract’)

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/5

         Judgment of the Court (Third Chamber) of 21 December 2016 (request for a preliminary ruling from the Oberlandesgericht Celle — Germany) — Remondis GmbH & Co. KG Region Nord v Region Hannover
   (Case C-51/15) (1)

   ((References for a preliminary ruling - Article 4(2) TEU - Respect for the national identity of Member States inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government - Internal organisation of the Member States - Regional authorities - Legal instrument creating a new public-law entity and organising the transfer of powers and responsibilities for the performance of public tasks - Public procurement - Directive 2004/18/EC - Article 1(2)(a) - Concept of ‘public contract’))
   (2017/C 053/06)
   Language of the case: German

      Referring court

   Oberlandesgericht Celle

      Parties to the main proceedings

      Applicant: Remondis GmbH & Co. KG Region Nord

      Defendant: Region Hannover

      Intervening parties: Zweckverband Abfallwirtschaft Region Hannover

      Operative part of the judgment

   Article 1(2)(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that an agreement concluded by two regional authorities, such as that at issue in the main proceedings, on the basis of which they adopt constituent statutes forming a special-purpose association with legal personality governed by public law and transfer to that new public entity certain competences previously held by those authorities and henceforth belonging to that special-purpose association, does not constitute a ‘public contract’.
   However, such a transfer of competences concerning the performance of public tasks exists only if it concerns both the responsibilities associated with the transferred competence and the powers that are the corollary thereof, so that the newly competent public authority has decision-making and financial autonomy, which it is for the referring court to verify.

      (1)  OJ C 155, 11.5.2015.


title: Case C-167/12: Reference for a preliminary ruling from Employment Tribunal Newcastle upon Tyne (United Kingdom) made on 3 April 2012 — C.D. v S.T.

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/9

         Reference for a preliminary ruling from Employment Tribunal Newcastle upon Tyne (United Kingdom) made on 3 April 2012 — C.D. v S.T.
   (Case C-167/12)
   2012/C 194/15
   Language of the case: English

      Referring court

   Employment Tribunal Newcastle upon Tyne

      Parties to the main proceedings

      Applicant: C.D.

      Defendant: S.T.

      Questions referred

   In each of the following questions:

               (a)

               The phrase ‘an intended mother who has a baby through a surrogacy arrangement’ shall refer to circumstances where the intended mother in question is a worker and has not herself, at any material time, been pregnant, or given birth to the child in question.

               (b)

               The phrase ‘surrogate mother’ shall refer to circumstances where a woman has been pregnant and given birth to a child on behalf of an intended mother.

                           1.

                           Do Article 1(1) and/or Article 2(c) and/or Article 8(1) and/or Article 11(2)(b) of the Pregnant Workers Directive 92/85/EEC (1) provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement?

                           2.

                           Does the Pregnant Workers Directive 92/85/EEC provide a right to receive maternity leave to an intended mother who has a baby through a surrogacy arrangement, in circumstances where she:

                                       (a)

                                       may breastfeed following birth and/or

                                       (b)

                                       does breastfeed following birth?

                           3.

                           Is it a breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC (2) for an employer to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement?

                           4.

                           Is it by reason of the employee's association with the surrogate mother of the baby a potential breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to refuse to provide maternity leave to an intended mother who has a baby through a surrogacy arrangement?

                           5.

                           Is it by reason of the intended mother's association with the surrogate mother of the baby a potential breach of Article 14, taken with Article 2(l)(a) and/or (b) and/or 2(2)(c) of the Recast Equal Treatment Directive 2006/54/EC to subject an intended mother who has a baby through a surrogacy arrangement to less favourable treatment?

                           6.

                           If the answer to questions 4 is ‘yes’, is the intended mother's status as intended mother sufficient to entitle her to maternity leave on the basis of her association with the surrogate mother of the baby?

                           7.

                           If the answer to any of questions 1,2,3 and 4 is ‘yes’:-

                                       7.1.

                                       Is the Pregnant Workers Directive 92/85/EEC, in the relevant respects, directly effective; and

                                       7.2.

                                       Is the Recast Equal Treatment Directive 2006/54/EC, in the relevant respects directly effective.

      (1)  Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)
   OJ L 348, p. 1

      (2)  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)
   OJ L 204, p. 23


title: Case T-501/08: Judgment of the General Court of 23 September 2011 — NEC Display Solutions Europe v OHIM — C More Entertainment (see more) (Community trade mark — Opposition proceedings — Application for a Community figurative mark see more — Earlier national word marks CMORE — 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:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/14

         Judgment of the General Court of 23 September 2011 — NEC Display Solutions Europe v OHIM — C More Entertainment (see more)
   (Case T-501/08) (1)

   (Community trade mark - Opposition proceedings - Application for a Community figurative mark ‘see more’ - Earlier national word marks CMORE - 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))
   2011/C 319/26
   Language of the case: English

      Parties

      Applicant: NEC Display Solutions Europe GmbH (Munich, Germany) (represented by: P. Munzinger, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: C More Entertainment AB (Stockholm, Sweden) (represented by: R. Almaraz Palmero, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 August 2008 (Case R 1388/2007-4) relating to opposition proceedings between C More Entertainment AB and NEC Display Solutions Europe GmbH

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders NEC Display Solutions Europe GmbH to pay the costs.

      (1)  OJ C 19, 24.1.2009.


title: Case C-353/05: Judgment of the Court (Fourth Chamber) of 28 September 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2003/54/EC — Failure to transpose within the period prescribed)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/17

         Judgment of the Court (Fourth Chamber) of 28 September 2006 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-353/05) (1)

   (Failure of a Member State to fulfil obligations - Directive 2003/54/EC - Failure to transpose within the period prescribed)
   (2006/C 294/28)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: B. Schima and F. Simonetti, Agents)

      Defendant: Grand Duchy of Luxembourg (represented by: S. Schreiner, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37)
   Operative part of the judgment
   The Court (Fourth Chamber):

               1.

               Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

               2.

               Orders the Grand Duchy of Luxembourg to pay the costs.

      (1)  OJ C 281, 12. 11. 2005.


title: Case T-26/04: Action brought on 20 January 2004 by Jacques Verborgh against the Commission of the European Communities

text:
20.3.2004               EN                         Official Journal of the European Union                                               C 71/41
—      declares, in Article 3, that certain aid that Spain intends         The applicant claims that the Court should:
       to grant to the applicant to cover exceptional restructur-
       ing costs in 2001 are incompatible with Article 7 of                —      Annul the decision of the appointing authority of
       Council Regulation (EC) No 1407/2002 of 23 July 2002                       20 December 2002 confirming the applicant’s initial
       on State aid to the coal industry (4);                                     classification in Grade A 7;
—      requires Spain, in Article 4, to recover, among other               —      Annul, to the extent necessary, the decision of the
       amounts, the aid mentioned in Article 1.                                   appointing authority of 9 October 2003 rejecting the
                                                                                applicant’s complaint;
In support of its claims, the applicant alleges:                           —      Order the defendant to pay all of the costs of the
                                                                                proceedings.
—      lack of competence on the part of the Commission to
       adopt the decision challenged, following the expiry of the
       ECSC Treaty;
                                                                           Pleas in law and main arguments
—      the inappropriateness of the procedure followed in
       adopting the decision challenged, the Commission having
       failed to previously to revoke Articles 1, 2 and 5 of               Following the Court’s judgment in Case T-17/95 (1), the
       Decision 2002/827/ECSC;                                             Commission adopted an amendment of the rules on the
                                                                           criteria applicable to appointment in grade and classification
                                                                           in step on recruitment. By the contested decision, it confirmed
—      infringement of the principle of legal certainty and                the applicant’s classification in Grade A 7 at the date of his
       cumulative procedural errors, inasmuch as Article 1 of              recruitment and for that reason rejected his request to be
       the decision challenged treats as unlawful and incompat-            reclassified.
       ible with the common market certain aid authorised by
       Decision 98/637/ECSC, even though that aid had already
       been held to be justified in Decision 2002/827/ECSC.                In support of his action, the applicant invokes the lack of
                                                                           reasoning in the contested decision, a manifest error of
—      a manifest error of assessment of the facts, inasmuch as            appraisal and alleged discrimination between the applicant
       the Commission failed to take the view that certain aid             himself, whose request to be reclassified was rejected, and
       granted to the applicant to cover exceptional restructur-           other officials who, having professional experience as long as
       ing costs was justified.                                            his own, were able to secure reclassification.
(1 ) T-291/02 González y Díez v Commission (OJ 2002 C 289, p. 33).         (1) Judgment of the Court of First Instance of the European Communi-
(2 ) OJ 1998 L 303, p. 57                                                      ties of 5 October 1995; published in OJ 1995 C 315 of
(3 ) OJ 2001 L 58, p. 24                                                       25.11.1995, p. 14.
(4 ) OJ 2002 L 205, p. 1.
                                                                           Action brought on 27 January 2004 by the El Corte Inglés
Action brought on 20 January 2004 by Jacques Verborgh                      S.A. against the Office for Harmonisation in the Internal
   against the Commission of the European Communities                                                     Market
                                                                                (Case T-27/04)
                          (Case T-26/04)
                                                                                (2004/C 71/72)
                          (2004/C 71/71)
                                                                                (Language of the case: Spanish)
                    (Language of the case: French)
                                                                           An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                  Market (OHIM) was brought before the Court of First Instance
ties was brought before the Court of First Instance of the                 of the European Communities on 27 January 2004 by El Corte
European Communities on 20 January 2004 by Jacques                         Inglés, established in Madrid, represented by lawyers J.-L. Rivas
Verborgh, residing in Aalter (Belgium), represented by Nicolas             Zurdo and E. López Leiva, members of the Ilustre Colegio de
Lhoëst, lawyer, with an address for service in Luxembourg.                 Madrid.


title: Judgment of the Court 22 January 2002 in Case C-390/99 (Reference for a preliminary ruling from the Tribunal Supremo): Canal Satélite Digital SL and Administracíon General del Estado, intervener: Distribuidora de Televisión Digital SA (DTS), v Administración General del Estado (Articles 30 and 59 of the EC Treaty (now, after amendment, Articles 28 EC and 49 EC) — Directive 5/47/EC — National legislation requiring operators of conditional-access television services to register in a national register created for that purpose, indicating the characteristics of the technical equipment they use, and subsequently to obtain administrative certification thereof — Directive 83/189/EEC — Meaning of "technical regulation")

text:
C 84/10                   EN                     Official Journal of the European Communities                                             6.4.2002
                  JUDGMENT OF THE COURT                                          Therefore, in order to be justified with regard to those
                                                                                fundamental freedoms, such legislation must pursue a public-
                                                                                interest objective recognised by Community law and comply
                           22 January 2002                                       with the principle of proportionality; that is to say, it must be
                                                                                appropriate to ensure achievement of the aim pursued and not
                                                                                go beyond what is necessary in order to achieve it.
in Case C-390/99 (Reference for a preliminary ruling from
the Tribunal Supremo): Canal Satélite Digital SL and
Administracı́on General del Estado, intervener: Distribui-
dora de Televisión Digital SA (DTS), v Administración                     2.   In determining whether national legislation such as that at
                        General del Estado (1)                                   issue in the main proceedings complies with the principle of
                                                                                proportionality, the referring court must take into account the
                                                                                following considerations in particular:
(Articles 30 and 59 of the EC Treaty (now, after amendment,
Articles 28 EC and 49 EC) — Directive 5/47/EC —
National legislation requiring operators of conditional-access                   —      for a prior administrative authorisation scheme to be
television services to register in a national register created for                      justified even though it derogates from those fundamental
that purpose, indicating the characteristics of the technical                           freedoms, it must, in any event, be based on objective,
equipment they use, and subsequently to obtain administrat-                             non-discriminatory criteria which are known in advance,
ive certification thereof — Directive 83/189/EEC — Mean-                                in such a way as to circumscribe the exercise of the
                    ing of ‘technical regulation’)                                      national authorities’ discretion, so that it is not used
                                                                                arbitrarily;
                            (2002/C 84/17)
                                                                                —      a measure introduced by a Member State cannot be
                                                                                regarded as necessary to achieve the aim pursued if it
                     (Language of the case: Spanish)                                    essentially duplicates controls which have already been
                                                                                carried out in the context of other procedures, either in the
(Provisional translation; the definitive translation will be published                  same State or in another Member State;
                     in the European Court Reports)
                                                                                —      a prior authorisation procedure will be necessary only
                                                                                where subsequent control must be regarded as being too
                                                                                late to be genuinely effective and to enable it to achieve
In Case C-390/99: Reference to the Court under Article 234                              the aim pursued;
of the EC Treaty by the Tribunal Supremo (Spain) for a
preliminary ruling in the proceedings pending before that
court between Canal Satélite Digital SL and Administracı́on                      —      a prior authorisation procedure does not comply with the
General del Estado, intervener: Distribuidora de Televisión                            fundamental principles of the free movement of goods and
Digital SA (DTS), and on the interpretation of Articles 30 and                          the freedom to provide services if, on account of its
59 of the EC Treaty (now, after amendment, Articles 28 EC                               duration and the disproportionate costs to which it gives
and 49 EC), read in conjunction with Articles 1 to 5 of                                 rise, it is such as to deter the operators concerned from
Directive 95/47/EC of the European Parliament and of the                                pursuing their business plan.
Council of 24 October 1995 on the use of standards for the
transmission of television signals (OJ 1995 L 281, p. 51) and
of Article 1, point 9, of Council Directive 83/189/EEC of                   3.   National legislation which requires operators of conditional-
28 March 1983 laying down a procedure for the provision of                       access services to enter the equipment, decoders or systems for
information in the field of technical standards and regulations                  the digital transmission and reception of television signals by
(OJ 1983 L 109, p. 8), as amended and updated by Directive                       satellite which they propose to market in a register and to
94/10/EC of the European Parliament and of the Council of                        obtain prior certification for those products before being able to
23 March 1994 (OJ 1994 L 100, p. 30),the Court, composed                         market them constitutes a ‘technical regulation’ within the
of: G.C. Rodrı́guez Iglesias, President, F. Macken, and N. Col-                  meaning of Article 1, point 9, of Council Directive
neric (Presidents of Chambers), C. Gulmann, D.A.O. Edward                        83/189/EEC of 28 March 1983 laying down a procedure for
(Rapporteur), A. La Pergola, J.-P. Puissochet, R. Schintgen and                  the provision of information in the field of technical standards
V. Skouris, Judges, Advocate General: C. Stix-Hackl, Registrar:                  and regulations, as amended and updated by Directive
H. von Holstein, Deputy Registrar, J. Svenningsen, acting as                     94/10/EC of the European Parliament and of the Council of
Agents, has given a judgment on 22 January 2002, in which it                     23 March 1994.
has ruled:
1.    National legislation which makes the marketing of apparatus,
      equipment, decoders or digital transmission and reception             (1) OJ C 6 of 8.1.2000.
      systems for television signals by satellite and the provision of
      related services by operators of conditional-access services subject
      to a prior authorisation procedure restricts both the free
      movement of goods and the freedom to provide services.


title: Case T-291/10: Order of the General Court of 8 April 2011 — Martin v Commission (Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — Explicit decision adopted after the action was brought — No need to adjudicate)

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/15

         Order of the General Court of 8 April 2011 — Martin v Commission
   (Case T-291/10) (1)

   (Access to documents - Regulation (EC) No 1049/2001 - Implied refusal of access - Explicit decision adopted after the action was brought - No need to adjudicate)
   2011/C 179/27
   Language of the case: English

      Parties

      Applicant: Anne Martin (Brussels, Belgium) (represented by: U. O’Dwyer, solicitor)

      Defendant: European Commission (represented by: P. Costa de Oliveira and C. ten Dam, agents)

      Intervener in support of the applicant: Kingdom of Denmark (represented by: S. Juul Jørgensen, agent)

      Re:

   Application for annulment of the Commission's implied decision of 20 April 2010 refusing the applicant access to the documents in the file relating to the State aid N 654/2008, notified by the United Kingdom of Great Britain and Northern Ireland on 19 December 2008, in favour of Short Brothers plc.

      Operative part of the order

   The Court:

               1.

               Declares that there is no need to adjudicate on this action.

               2.

               Orders the European Commission to bear its own costs and to pay those incurred by Ms Anne Martin.

               3.

               Orders the Kingdom of Denmark to bear its own costs.

      (1)  OJ C 234, 28.8.2010.


title: Judgment of the Court (Fourth Chamber) of 8 September 2005 in Case C-462/04: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2001/40/EC — Mutual recognition of decisions on the expulsion of third-country nationals — Failure to implement within the prescribed time-limit)

text:
               29.10.2005

               EN

               Official Journal of the European Union

               C 271/10

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 8 September 2005
   in Case C-462/04: Commission of the European Communities v Italian Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 2001/40/EC - Mutual recognition of decisions on the expulsion of third-country nationals - Failure to implement within the prescribed time-limit)
   (2005/C 271/19)
   Language of the case: Italian
   In Case C-462/04: Commission of the European Communities (Agent: C. O'Reilly and E. de March) v Italian Republic (Agent: I.M. Braguglia and A. Cingolo) — action for failure to fulfil obligations under Article 226 EC, brought on 29 October 2004 — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, J.N. Cunha Rodrigues and M. Ilešič, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 8 September 2005, in which it:

               1.

               Declares that, by failing within the prescribed time-limit to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals, with the exception of Article 7 thereof, the Italian Republic has failed to fulfil its obligations under that directive;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 6 of 08.01.2005.


title: Case T-95/09: Action brought on 26 February 2009 — United Phosphorus v Commission

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/32

         Action brought on 26 February 2009 — United Phosphorus v Commission
   (Case T-95/09)
   2009/C 102/48
   Language of the case: English

      Parties

      Applicant: United Phosphorus (Warringthon, United Kingdom) (represented by: C. Mereu and K. Van Maldegem, lawyers)

      Defendant: Commission of the European communities

      Form of order sought

               —

               declare the application admissible;

               —

               annul the contested decision;

               —

               order the Commission to pay the costs of these proceedings;

               —

               take such other or further measures as justice may require.

      Pleas in law and main arguments

   By means of this application, the applicant seeks the annulment, pursuant to Article 230 EC of Commission Decision 2008/902/EC of 7 November 2008 concerning the non-inclusion of napropamide in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (notified under document number C(2008) 6281) (1). The contested measures will be effective as of 7 May 2009.
   The applicant puts forward three pleas in law in support of its claims.
   First, the applicant claims that the contested decision contains manifest errors of appraisal. In the applicant’s opinion there is no sufficient scientific justification for the conclusions contained in the contested decision and that the Commission failed to take account of all available scientific evidence in violation of Article 5 of Directive 91/414 (2) and of Article 11(2) of Regulation 1490/2002 (3).
   Second, the applicant contends that the Commission has infringed essential procedural requirements, i.e. Article 11 of Regulation No 1490/2002, as its alleged conflicting and contradictory behaviour denied to the applicant the right to withdraw the support of a substance in return for an extended phase-out period pending the resubmission of a dossier. Moreover, the applicant submits that the Commission failed to adopt the contested decision within applicable procedural deadlines and therefore infringed Article 11(4) of Regulation No 1490/2002.
   Third, the applicant claims that the Commission has infringed fundamental principles of the community law such as principle of legitimate expectations, principle to fair hearing and the applicant’s right to defence as well as principle of proportionality as stated in Article 5 EC as, in the applicant’s opinion, the Commission could have extended the applicable deadlines in order to give EFSA more time to review the information and data submitted by the applicant. It further submits that the Commission failed to provide an adequate statement of reasons to justify its disagreement with the assessment of RMS and EFSA and therefore infringed its obligations under Article 253 EC.

      (1)  OJ 2008 L 326, p. 35

      (2)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1)

      (3)  Commission Regulation (EC) No 1490/2002 of 14 August 2002 laying down further detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC and amending Regulation (EC) No 451/2000 (OJ 2002 L 224, p. 23)


title: Judgment of the Court of 19 April 2016 in Case E-14/15 — Holship Norge AS v Norsk Transportarbeiderforbund (Articles 31, 53 and 54 EEA — Competition law — Collective agreements — Collective action — Freedom of establishment)

text:
               2.2.2017

               EN

               Official Journal of the European Union

               C 33/7

         JUDGMENT OF THE COURT
   of 19 April 2016
   in Case E-14/15
   Holship Norge AS v Norsk Transportarbeiderforbund
   (Articles 31, 53 and 54 EEA — Competition law — Collective agreements — Collective action — Freedom of establishment)
   (2017/C 33/06)
   In Case E-14/15, Holship Norge AS v Norsk Transportarbeiderforbund — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme Court of Norway (Norges Høyesterett) concerning the interpretation of the EEA Agreement, and in particular Articles 31, 53 and 54, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave judgment on 19 April 2016, the operative part of which is as follows:

               1.

               The exemption from the EEA competition rules that applies to collective agreements does not cover the assessment of a priority of engagement rule, such as the one at issue, or the use of a boycott against a port user in order to procure acceptance of a collective agreement, when such acceptance entails that the port user must give preference to buying unloading and loading services from a separate company, such as the administrative office at issue, in place of using its own employees for the same work.

               2.

               Articles 53 and 54 EEA may apply separately or jointly to a system such as the one at issue.

               3.

               Should a port, such as the one at issue, not be regarded as a substantial part of the EEA territory, identical or corresponding administrative office systems, which may exist in other ports, must be taken into account in order to determine whether a dominant position covers the territory of the EEA Agreement or a substantial part of it.

               4.

               A boycott such as the one at issue, aimed at procuring acceptance of a collective agreement providing for a system which includes a priority clause, is likely to discourage or even prevent the establishment of companies from other EEA States and thereby constitutes a restriction on the freedom of establishment under Article 31 EEA.

               5.

               It is of no significance for the assessment whether a restriction exists if the company’s need for unloading and loading services proved to be very limited and/or sporadic.

               6.

               In a situation such as that in the main proceedings, it is of no significance for the assessment of the lawfulness of the restriction that the company, upon which the boycott is imposed, applies another collective agreement in relation to its own dockworkers.


title: Judgment of the Court (Fifth Chamber) of 21 June 2001 in Case C-30/99: Commission of the European Communities v Ireland (Free movement of goods — Precious metals — Compulsory hallmark)

text:
C 212/6                   EN                      Official Journal of the European Communities                                    28.7.2001
                   JUDGMENT OF THE COURT                                                     JUDGMENT OF THE COURT
                           (Third Chamber)
                                                                                (Fifth Chamber)
                            of 14 June 2001
                                                                                of 21 June 2001
in Case C-368/00: Commission of the European Communi-
                   ties v Kingdom of Sweden (1)
                                                                             in Case C-30/99: Commission of the European Communi-
(Failure by a Member State to fulfil its obligations —                                              ties v Ireland (1)
Quality of bathing water — Inadequate implementation of
                        Directive 76/160/EEC)
                                                                             (Free movement of goods — Precious metals — Compulsory
                            (2001/C 212/09)                                                             hallmark)
                     (Language of the case: Swedish)                                                (2001/C 212/10)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                                            (Language of the case: English)
In Case C-368/00: Commission of the European Communities                     In Case C-30/99: Commission of the European Communities
(Agent: L. Ström) v Kingdom of Sweden (Agent: A. Kruse) —                    (Agents: R.B. Wainwright and M. Shotter) v Ireland (Agent:
application for a declaration that, by failing to take all                   M.A. Buckley, assisted by A.M. Collins) supported by United
necessary measures to ensure that the quality of bathing water               Kingdom of Great Britain and Northern Ireland (Agent:
conforms to the limit values laid down by Council Directive                  R. Magrill, assisted by M. Hoskins) — application for a
76/160/EEC of 8 December 1975 concerning the quality of                      declaration that:
bathing water (OJ 1976 L 31, p. 1) and by failing to adhere to
the minimum sampling frequencies laid down by that directive,
the Kingdom of Sweden has failed to fulfil its obligations under             —    by prohibiting the marketing in Ireland with the descrip-
Articles 4(1) and 6(1) of that directive — the Court (Third                       tion and indication of fineness which they bear in their
Chamber) composed of: C. Gulmann, President of the Chamb-                         country of origin, of articles made from precious metals
er, J.-P. Puissochet and J.N. Cunha Rodrigues (Rapporteur),                       (gold, silver or platinum) lawfully manufactured and
Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has                   marketed in other Member States but not complying with
given a judgment on 14 June 2001, in which it:                                    the Irish provisions concerning standards of fineness, or
                                                                                by obliging these imports to replace their hallmarks with
                                                                                those for the appropriate lower official Irish standard of
1.    Declares that, by failing to take all necessary measures to ensure          fineness;
      that the quality of bathing water conforms to the mandatory
      limit values laid down by Council Directive 76/160/EEC of              —    by requiring articles made from precious metals (gold,
      8 December 1975 concerning the quality of bathing water,                    silver or platinum) imported from another Member State,
      and by failing to adhere to the minimum sampling frequencies                and marketed in Ireland, to bear a sponsor’s mark
      laid down by that directive, the Kingdom of Sweden has failed               indicative of the maker, worker or dealer in such articles,
      to fulfil its obligations under Articles 4(1) and 6(1) of that              registered by the Wardens and Commonalty of Gold-
      directive;                                                                  smiths of the city of Dublin which appoints the Assay
                                                                                Master by which these articles are intended to be struck
2.    Orders the Kingdom of Sweden to pay the costs.                              with the approved hallmark, when these articles already
                                                                                bear a sponsor’s mark conforming to the legislation of
                                                                                the Member State of origin;
(1) OJ C 355 of 9.12.2000.                                                   —    by requiring articles made from precious metals (gold,
                                                                                silver or platinum) imported from another Member State,
                                                                                and marketed in Ireland, which have been lawfully struck
                                                                                in another Member State With a hallmark stamped by a
                                                                                body which offers guarantees of independence, and which
                                                                                offers appropriate information to consumers, to bear an
 ---pagebreak--- 28.7.2001                EN                      Official Journal of the European Communities                                              C 212/7
      approved hallmark struck by the Assay Master which is                 3.    Orders the United Kingdom of Great Britain and Northern
      appointed by the Wardens and Commonalty of Gold-                            Ireland to pay its own costs.
      smiths of the city of Dublin;
                                                                            (1) OJ C 86 of 27.3.1999.
—     by establishing differences between approved hallmarks
      struck on articles manufactured in Ireland and those
      hallmarks of the same type struck on articles imported
      from other Member States,
Ireland has failed to fulfil its obligations under Article 30 of
the EC Treaty (now, after amendment, Article 28 EC) — the
Court (Fifth Chamber), composed of: A. La Pergola, President                                  JUDGMENT OF THE COURT
of the Chamber, M. Wathelet, D.A.O. Edward, P. Jann (Rappor-
teur) and C.W.A. Timmermans, Judges; L.A. Geelhoed, Advo-                                            (Second Chamber)
cate General; D. Louterman-Hubeau, Head of Division, for the
Registrar, has given a judgment on 21 June 2001, in which it:
                                                                                of 21 June 2001
1.    Declares that:                                                        in Case C-206/99 (reference for a preliminary ruling from
                                                                            the Tribunal Tributário de Primeira Instância do Porto):
      —     by prohibiting the marketing in Ireland with the descrip-       SONAE — Tecnologia de Informação SA v Direcção-
            tion and indication of fineness which they bear in their                        Geral dos Registos e Notariado (1)
            country of origin, of articles made from precious metals
            (gold, silver or platinum) lawfully manufactured and            (Raising of capital — Directive 69/335/EEC — ‘Duties paid
            marketed in other Member States but not complying with          by way of fees or dues’ — Charge for entry in the commercial
            the Irish provisions concerning standards of fineness, or                                      register)
            by obliging these imports to replace their hallmarks with
            those for the appropriate lower official Irish standard of                                 (2001/C 212/11)
            fineness;
      —     by requiring articles made from precious metals imported                          (Language of the case: Portuguese)
            from another Member State, and marketed in Ireland, to
            bear a sponsor’s mark indicative of the maker, worker or
            dealer in such articles, registered by the Wardens and          (Provisional translation; the definitive translation will be published
            Commonalty of Goldsmiths of the city of Dublin which                                in the European Court Reports)
            appoints the Assay Master by which these articles are
            intended to be struck with the approved hallmark, when          In Case C-206/99: reference to the Court under Article 177 of
            these articles already bear a sponsor’s mark conforming to      the EC Treaty (now Article 234 EC) from the Tribunal
            the legislation of the Member State of origin;                  Tributário de Primeira Instância do Porto (Fiscal Court of First
                                                                            Instance, Porto) (Portugal) for a preliminary ruling in the
      —     by requiring articles made from precious metals imported        proceedings pending before that court between SONAE —
            from another Member State, and marketed in Ireland,             Tecnologia de Informação SA and Direcção-Geral dos Registos
            which have been lawfully struck in another Member               e Notariado — on the interpretation of Articles 10 and 12 of
            State with a hallmark stamped by a body which offers            Council Directive 69/355/EEC of 17 July 1969 concerning
            guarantees of independence, and which offers appropriate        indirect taxes on the raising of capital (OJ, English Special
            information to consumers, to bear an approved hallmark          Edition 1969 II, p. 412), as amended by Council Directive
            struck by the Assay Master which is appointed by the            85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — the
            Wardens and Commonalty of Goldsmiths of the city of             Court (Second Chamber), composed of: V. Skouris, President
            Dublin or an international hallmark notified in accord-         of the Chamber, R. Schintgen (Rapporteur) and N. Colneric,
            ance with the Convention on the Control and Marking of          Judges; D. Ruı́z-Jarabo Colomer, Advocate General; R. Grass,
            Articles of Precious Metals; and                                Registrar, has given a judgment on 21 June 2001, in which it
                                                                            has ruled:
      —     by establishing differences between approved hallmarks
            struck on articles manufactured in Ireland and those            Article 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969
            hallmarks of the same type struck on articles imported          concerning indirect taxes on the raising of capital, as amended by
            from other Member States,                                       Council Directive 85/303/EEC of 10 June 1985, is to interpreted
                                                                            as meaning that charges for recording an increase in the share capital
                                                                            of a capital company in a commercial register, which increase without
      Ireland has failed to fulfil its obligations under Article 30 of      upper limit in direct proportion to the nominal capital subscribed and
      the EC Treaty (now, after amendment, Article 28 EC);
                                                                            are not calculated on the basis of the cost of the service rendered, such
                                                                            as those at issue in the main proceedings, are not duties paid by way
2.    Orders Ireland to pay the costs;                                      of fees or dues.


title: Case C-80/03: Action brought on 21 February 2003 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
C 83/16                  EN                        Official Journal of the European Union                                        5.4.2003
Pleas in law and main arguments                                            le Strade v SCA RL CMC Cooperativa Muratori Cementisti
                                                                           Ravenna, SpA ICLA Costruzioni Generali and SpA Impresa
                                                                           Toto e Toto.
The period within which the directive had to be transposed
expired on 28 October 2001.
                                                                           (1 ) OJ C 192 of 8.7.2000.
( 1) OJ 1998 L 289, p. 28.
                                                                                Removal from the register of Case C-337/00 ( 1)
Action brought on 21 February 2003 by the Commission
of the European Communities against the Kingdom of the                                              (2003/C 83/32)
                             Netherlands
                           (Case C-80/03)
                                                                           By order of 13 December 2002 the President of the Court of
                                                                           Justice of the European Communities ordered the removal
                           (2003/C 83/30)
                                                                           from the register of Case C-337/00: Federal Republic of
                                                                           Germany v Commission of the European Communities.
An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on                 (1 ) OJ C 316 of 4.11.2000.
21 February 2003 by the Commission of the European
Communities, represented by W. Wils, acting as Agent.
The applicant claims that the Court should:
—     Declare that, by failing to bring into force the laws,                       Removal from the register of Case C-188/01 ( 1)
      regulations and administrative provisions necessary to
      comply with Directive 1999/93/EC ( 1) of the European
      Parliament and of the Council of 13 December 1999 on                                          (2003/C 83/33)
      a Community framework for electronic signatures, or in
      any event by failing to inform the Commission of those
      provisions, the Kingdom of the Netherlands has failed to             By order of 12 December 2002 the President of the Court of
      fulfil its obligations under that directive;                         Justice of the European Communities ordered the removal
                                                                           from the register of Case C-188/01 (Reference for a preliminary
—     Order the Kingdom of the Netherlands to pay the costs.               ruling by the Unabhängiger Verwaltungssenats Salzburg):
                                                                           Francisco Javier Gonzales Moreno.
Pleas in law and main arguments
                                                                           (1 ) OJ C 200 of 14.7.2001.
The period within which the measures had to be adopted
expired on 19 July 2001.
( 1) OJ L 13 of 19.1.2000, p. 12.
                                                                                Removal from the register of Case C-375/01 ( 1)
                                                                                (2003/C 83/34)
        Removal from the register of Case C-173/00 ( 1)
                                                                           By order of 15 January 2003 the President of the Court of
                           (2003/C 83/31)                                  Justice of the European Communities ordered the removal
                                                                           from the register of Case C-375/01: Commission of the
                                                                           European Communities v Ireland.
By order of 14 January 2003 the President of the Court of
Justice of the European Communities ordered the removal                    (1 ) OJ C 348 of 8.12.2001.
from the register of Case C-173/00 (Reference for a preliminary
ruling by the Consiglio di Stato): ANAS — Ente Nazionale per


title: Case C-94/17: Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 23 February 2017 — Rafael Ramón Escobedo Cortés v Banco de Sabadell, S.A.

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/19

         Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 23 February 2017 — Rafael Ramón Escobedo Cortés v Banco de Sabadell, S.A.
   (Case C-94/17)
   (2017/C 151/25)
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Appellant: Rafael Ramón Escobedo Cortés

      Respondent: Banco de Sabadell, S.A.

      Questions referred

               1.

               Do Articles 3, in conjunction with [point 1(e) of the annex], and 4(1) of Directive 93/13 (1) preclude a judicial interpretation that declares that a term in a loan agreement setting a rate of default interest that exceeds by more than 2 % the annual ordinary interest rate fixed in the agreement constitutes disproportionately high compensation imposed on the consumer who is late performing his obligation to pay and is, therefore, unfair?

               2.

               Do Articles 3, in conjunction with [point 1(e) of the annex], 4(1), 6(1) and 7(1) of Directive 93/13 preclude a judicial interpretation that, when a term in a loan agreement that sets the rate of default interest is declared unfair, identifies, as the object of the review of unfairness, the fact that that rate exceeds the ordinary interest rate, on the grounds that it constitutes ‘disproportionately high compensation imposed on the consumer who has not performed his obligations’, and establishes as the consequence of the declaration of unfairness that that additional charge must cease to apply, so that only ordinary interest continues to accrue until the loan has been repaid?

               3.

               If the second question were to be answered in the negative: must a declaration that a term setting a rate of default interest is void, because unfair, have other effects in order to be compatible with Directive 93/13, such as, for example, the total elimination of both ordinary and default interest, when the borrower fails to perform his obligation to make the loan repayments within the time-limits stipulated in the agreement, or the charging of statutory interest?

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


title: Case T-29/17: Action brought on 17 January 2017 — RQ v Commission

text:
               27.3.2017

               EN

               Official Journal of the European Union

               C 95/15

         Action brought on 17 January 2017 — RQ v Commission
   (Case T-29/17)
   (2017/C 095/24)
   Language of the case: French

      Parties

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

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               declare his action admissible and well founded;

               —

               consequently, annul the European Commission’s decision of 2 March 2016, C(2016)1449 final, relating to a request for waiver of immunity, notified on 11 March 2016 and of which the Director General learned on 14 March 2016 on his return from mission;

               —

               so far as necessary, annul the decision of 5 October 2016, under reference Ares(2016)5814495 — 07/10/2016, notified on 7 October 2016, by which the appointing authority rejected the applicant’s complaint, which he had submitted on 10 June 2016 under reference No R/317/16;

               —

               order the defendant in any event to pay all the costs, in accordance with Article 134(1) and 135 of the Rules of Procedure of the General Court.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), in particular Article 23 thereof, and of Article 17 of the Protocol (No. 7) on the Privileges and Immunities of the European Union, and breach of the principle requiring the administration to hand down decisions only on the basis of legally admissible grounds, by which is meant grounds which are relevant and not vitiated by manifest errors of assessment.

               2.

               Second plea in law, alleging infringement of the Staff Regulations, in particular Article 24 thereof, and breach of the duty to have regard to the interests of officials.

               3.

               Third plea in law, alleging infringement of the obligation to state reasons, in particular infringement of the third indent of Article 41(2) of the Charter of Fundamental Rights of the European Union, of Article 296 of the Treaty on the Functioning of the European Union, of Article 25 of the Staff Regulations and of the public interest.

               4.

               Fourth plea in law, alleging breach of the principle of legitimate expectations and manifest error of assessment.

               5.

               Fifth plea in law, alleging infringement of the normal exercise of the rights of the defence, in particular of the right to be heard, the duty of impartiality and the observance of the principle of the presumption of innocence, and the failure to act diligently, in particular as regards the observance of reasonable time-limits.


title: Case C-26/17 P: Appeal brought on 19 January 2017 by Birkenstock Sales GmbH against the judgment of the General Court (Fifth Chamber) delivered on 9 November 2016 in Case T-579/14 Birkenstock Sales GmbH v European Union Intellectual Property Office (EUIPO)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/14

         Appeal brought on 19 January 2017 by Birkenstock Sales GmbH against the judgment of the General Court (Fifth Chamber) delivered on 9 November 2016 in Case T-579/14 Birkenstock Sales GmbH v European Union Intellectual Property Office (EUIPO)

   (Case C-26/17 P)
   (2017/C 151/20)
   Language of the case: German

      Parties

      Appellant: Birkenstock Sales GmbH (represented by: C. Menebröcker, Rechtsanwalt, and V. Töbelmann, Rechtsanwältin)

      Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of the European Union of 9 November 2016 (Case T-579/14), in so far as it dismissed the appellant’s action;

               —

               grant the claims for registration of the goods in respect of which the appellant’s action was dismissed at first instance before the General Court of the European Union;

               —

               order EUIPO to pay the costs of the proceedings before the Court of Justice, the General Court and the Board of Appeal.

      Grounds of appeal and main arguments

               1.

               The appellant asks the Court to set aside the judgment of the General Court of 9 November 2016 in Case T-579/14 concerning IR mark No 1132742 in so far as it dismissed the appellant’s action, and to grant the claims relating to the goods in respect of which the appellant’s action was dismissed at first instance before the General Court.

               2.

               The appellant first alleges infringement of Article 7(1)(b) of the European Trade Mark Regulation (1) on the ground that the General Court erred in applying the principles governing three-dimensional marks to the IR mark at issue. The appellant also claims that the General Court, in its assessment of the IR mark according to the principles governing three-dimensional marks, did not provide a definition of the ‘standards and usual practices of the sector’ in respect of the goods at issue, and finally that the General Court applied stricter criteria to the assessment of the overall impression of the IR mark than those provided for in Article 7(1)(b) of the Trade Mark Regulation.

               3.

               The appellant further claims that the judgment of the General Court is contradictory in so far as it was there established that the distinctive character of a sign must be established on the basis of the sign itself, although the General Court considered questions of use in its assessment and, on the issue of whether a sign may be deemed to be used at the same time in a two-dimensional and in a three-dimensional way, referred to one of its own previous judgments.

               4.

               Furthermore, the appellant alleges a distortion of facts, in so far as it was stated in the judgment under appeal that EUIPO was not required to substantiate its view that the IR mark did not depart significantly from the forms of use normal in the sector, given that the Board of Appeal based its arguments on facts shown by practical experience generally acquired in the marketing of the goods at issue, likely to be known by anyone.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case C-264/05: Judgment of the Court (Fifth Chamber) of 15 June 2006 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 2001/19/EC — Mutual recognition of diplomas, certificates and other qualifications — Nurse, dentist, veterinary surgeon, midwife, architect, pharmacist and doctor — Failure to transpose within the prescribed period)

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/6

         Judgment of the Court (Fifth Chamber) of 15 June 2006 — Commission of the European Communities v Federal Republic of Germany
   (Case C-264/05) (1)

   (Failure of a Member State to fulfil obligations - Directive 2001/19/EC - Mutual recognition of diplomas, certificates and other qualifications - Nurse, dentist, veterinary surgeon, midwife, architect, pharmacist and doctor - Failure to transpose within the prescribed period)
   (2006/C 190/10)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: A. Manville and H. Støvlbæk, Agents)

      Defendant: Federal Republic of Germany (represented by: C. Schulze-Bahr, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to transpose within the prescribed period, Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (OJ 2001 L 206, p. 1)
   Operative part of the judgment
   The Court hereby:

               1.

               Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to ensure the complete transposition of Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 205, 20.08.2005.


title: Case T-465/13: Action brought on 30 August 2013 — Comunidad Autónoma de Cataluña and CTTI v Commission

text:
               19.10.2013

               EN

               Official Journal of the European Union

               C 304/26

         Action brought on 30 August 2013 — Comunidad Autónoma de Cataluña and CTTI v Commission
   (Case T-465/13)
   2013/C 304/45
   Language of the case: Spanish

      Parties

      Applicants: Comunidad Autónoma de Cataluña (Catalonia, Spain) and Centre de Telecomunicacions i Tecnologies de la Informació de la Generalitat de Catalunya (Catalonia, Spain) (represented by: J. Buendía Sierra, N. Ruiz García, M. Muñoz de Juan and M. Reverter Baquer, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare admissible and well-founded the grounds of annulment relied on in support of the present action;

               —

               annul the contested decision, in particular Article 1, in so far as it finds that there is a State aid incompatible with the internal market;

               —

               consequently, annul the recovery orders provided for in Articles 3 and 4 of the decision; and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The decision contested in the present case is the same as that at issue in Case T-462/13, Comunidad Autónoma del País Vasco and Itelazpi v Commission.
   In support of the action, the applicants rely on the same pleas in law as those relied on in Case T-462/13.


               30.4.2005

               EN

               Official Journal of the European Union

               C 106/22

         Removal from the register of Case C-549/03 (1)

   (2005/C 106/51)

      (Language of the case: French)

   By order of 16 December 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-549/03: European Parliament v Council of the European Union supported by the United Kingdom of Great Britain and Northern Ireland and Ireland.

      (1)  OJ C 47 of 21.02.2004.


title: Case T-87/04: Action brought on 1 March 2004 by Milagros Irene Arranz Benítez against the European Parliament

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/78

         Action brought on 1 March 2004 by Milagros Irene Arranz Benítez against the European Parliament
   (Case T-87/04)
   (2004/C 106/153)
   Language of the case: French
   An action against the European Parliament was brought before the Court of First Instance of the European Communities on 1 March 2004 by Milagros Irene Arranz Benítez, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, avocats, with an address for service in Luxembourg.
   The applicant claims that the Court of First Instance should:

               —

               annul the decision of the Head of the European Parliament's ‘Individual Rights’ Division of 15 April 2003;

               —

               order the European Parliament to pay the costs.

         Pleas in law and main arguments
   By the contested act the Parliament decided to take into consideration, for the purpose of calculating the tax abatement provided for by Article 3 of Regulation 260/68 (1) and the expatriation allowance payable to the applicant, two only of her children, on the ground that actual maintenance of the children was shared between the applicant and her former husband, who is also an official and entitled to the same allowances. The applicant challenges this decision, claiming that she alone actually maintains the children, given that the monthly contribution paid by her former husband for each child is less than the threshold laid down by the conclusions of the Group of the Heads of Administration and is not, in any case, of such an amount that the children can be regarded as being dependent on their father, given the latter's grade and his posting outside the Communities.

      (1)  Regulation (EEC, Euratom, ECSC) of the Council of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ, English Special Edition 1968 II, p. 37).


title: Case C-429/00: Reference for a preliminary ruling by the Giudice di Pace di Genova by order of that court of 11 November 2000 in the case of Radiosistemi Srl against Prefetto di Genova

text:
C 28/20                 EN                      Official Journal of the European Communities                                        27.1.2001
The Applicant claims that the Court should:                                Appeal brought on 21 November 2000 by Anton Dürbeck
                                                                           GmbH against the judgment delivered on 19 December
—     declare that, by failing to ensure that bathing waters in            2000 by the Fifth Chamber of the Court of First Instance
      the United Kingdom comply with the limit values set in               of the European Communities in Case T-252/97 between
      accordance with Article 3 of Directive 76/160/EC (1), the            Anton Dürbeck GmbH and the Commission of the
      United Kingdom has failed to fulfil its obligations under            European Communities, supported by the Kingdom of
      that Directive;                                                                       Spain and the French Republic
                                                                                (Case C-430/00 P)
—     order the United Kingdom to pay the costs.
                                                                                (2001/C 28/39)
                                                                           An appeal against the judgment delivered on 19 September
Pleas in law and main arguments                                            2000 by the Fifth Chamber of the Court of First Instance of
                                                                           the European Communities in Case T-252/97 between Anton
Article 4 of the Directive 76/160/CEE requires Member States               Dürbeck GmbH and the Commission of the European Com-
to have taken all necessary measures, within 10 years following            munities, supported by the Kingdom of Spain and the French
notification of the Directive, to ensure that the quality of               Republic, was brought before the Court of Justice of the
bathing water conforms to the limit values set out in the                  European Communities on 21 November 2000 by Anton
Annex.                                                                     Dürbeck GmbH, represented by Dr Gert Meier, Rechtsanwalt,
                                                                           Berrenrather Straße 313, D-50937 Köln.
The Commission notes that, despite efforts to improve com-                 The appellant claims that the Court should:
pliance, the United Kingdom is continuing to fail to meet the
                                                                           1.    Set aside the contested judgment;
requirements of the directive. The Commission must conclude,
therefore, that the United Kingdom has failed to fulfil its                2.    Annul the contested decision of the Commission of
obligations in terms of the Directive.                                           10 July 1997 relating to the case of hardship;
                                                                           3.    Order the defendant to pay the costs of the proceedings.
(1) Council Directive 76/160/EEC of 8 December 1975 concerning
    the quality of bathing water (OJ L 31, 5.2.1976, p. 1).                Pleas in law and main arguments
                                                                           —     The Court of First Instance erred in not undertaking
                                                                                a critical appraisal of the applicant’s submissions on
                                                                                infringement of the principle of equivalence. The defend-
                                                                                ant had first referred to the ‘interest in the equal treatment
                                                                                of all traders’ in its defence. The applicant was entitled to
                                                                                state its position on this not solely for the purpose of
                                                                                refuting the defendant’s plea.
                                                                           —     Owing to an incorrect appreciation of the contract
Reference for a preliminary ruling by the Giudice di Pace
                                                                                between the applicant and Consultban, the Court of First
di Genova by order of that court of 11 November 2000
                                                                                Instance concluded that the Commission had correctly
in the case of Radiosistemi Srl against Prefetto di Genova
                                                                                established the amount of the compensation to which the
                                                                                applicant was entitled.
                           (Case C-429/00)
                                                                           —     The Court of First Instance erred in approving the
                                                                                Commission’s refusal to take the licences granted in order
                            (2001/C 28/38)                                       to compensate losses in cases of hardship into account
                                                                                for the purpose of determining future reference quantities.
                                                                                The Commission was not entitled to adopt the approach
Reference has been made to the Court of Justice of the                           of providing compensation by allocating licences in cases
European Communities by order of the Giudice di Pace                             of hardship if that approach meant that it could not
(District Court), Genoa, of 20 November 2000, received at the                    take those licences into account for the purpose of
Court Registry on 11 November 2000, for a preliminary ruling                     determining reference quantities for future years. Once it
in the case of Radiosistemi Srl against Prefetto di Genova on                    adopted that approach, however, the effect of the binding
questions which are in substance identical to those referred in                  rule in Article 19 of Regulation No 404/93 was such that
Case C-388/00 (1).                                                               the Commission could not then refuse to take those
                                                                                licences into account for the purpose of determining
                                                                                reference quantities for future years if, owing to further
(1) See p. 10 of this Official Journal.                                          developments in the organisation of the market in
                                                                                bananas, the applicant received excessive compensation
                                                                                for its loss.


title: Case C-240/00: Action brought on 15 June 2000 by the Commission of the European Communities against the Republic of Finland

text:
26.8.2000             EN                      Official Journal of the European Communities                                     C 247/19
Action brought on 15 June 2000 by the Commission                         Appeal brought on 15 June 2000 by Kish Glass Company
of the European Communities against the Republic of                      Limited against the judgment delivered on 30 March 2000
                             Finland                                     by the Fourth Chamber of the Court of First Instance of
                                                                         the European Communities in case T-65/96 between Kish
                                                                         Glass Company Ltd and the Commission of the European
                        (Case C-240/00)                                  Communities, supported by Pilkington United Kingdom
                                                                                Ltd
                        (2000/C 247/25)
                                                                                (Case C-241/00 P)
An action against the Republic of Finland was brought before                                      (2000/C 247/26)
the Court of Justice of the European Communities on 15 June
2000 by the Commission of the European Communities,
represented by Esa Paasivirta and Richard Wainwright, of its             An appeal against the judgment delivered on 30 March 2000
Legal Service, acting as Agents, with an address for service in          by the Fourth Chamber of the Court of First Instance of the
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner             European Communities in case T-65/96 between Kish Glass
Centre, Kirchberg.                                                       Company Ltd and the Commission of the European Communi-
                                                                         ties, supported by Pilkington United Kingdom Ltd, was brought
                                                                         before the Court of Justice of the European Communities on
The Commission claims that the Court should:                             15 June 2000 by Kish Glass Company Ltd, represented by
                                                                         Mr Maurice Byrne, solicitor, with an address for service in
                                                                         Luxembourg at the office of Arendt & Medernach, 8-10 rue
1.    Declare that the Republic of Finland, which has not                Mathias Hardt, B.P. 39.
      adequately or definitively classified special protection
      areas as required by Article 4(1) and (2) of Council
      Directive 79/409/EEC of 2 April 1979 on the conser-                The Appellant claims that the Court should:
      vation of wild birds (1), has failed to fulfil its obligations
      under that directive;
                                                                         —      quash the decision of the Court of First Instance and
                                                                                annul the Decision of the Commission dated 21 February
2.    Order Finland to pay the costs.                                           1996 in Case IV/34.193 — Kish Glass;
                                                                         —      order the Commission to pay Kish’s costs in connection
                                                                                with this appeal, and in connection with Kish’s appli-
Pleas in law and main arguments                                                 cation to the Court of First Instance.
Article 4(1) of the Birds Directive requires Member States to            Pleas in law and main arguments
classify as special protection areas for conservation of the
species mentioned in Annex I the most suitable territories in
number and size for the conservation of those species. Under             This appeal, which is based on three grounds of law, illustrates
Article 4(2) Member States must take similar measures for                that the Court of First Instance has infringed the principles of
regularly occurring migratory species not listed in Annex I,             Community law in three important respects. The grounds of
bearing in mind their need for protection. Under Article 4(3)            appeal are as follows:
Member States must send the Commission all relevant infor-
mation concerning the sites classified, so that the Commission
may take measures to form a coherent network.                            First ground: incorrect interpretation of the requirements of
                                                                         Article 11(3) of Regulation 17 of 1962 (1).
Since there are no derogations or transitional provisions
concerning the Birds Directive in the Act of Accession of                The Court of First Instance incorrectly interpreted the require-
Finland, the obligations concerning the directive in question            ments of Article 11 of Regulation 17 of 1962, in holding that
should have been fulfilled by 1 January 1995.                            the Commission may obtain evidence by means of oral
                                                                         requests followed by requests in the proper form. The Court
                                                                         has addressed this issue in a contradictory manner.
(1) OJ L 103 of 25.4.1979, p. 1.
                                                                         Second ground: misapplication of the case law of the Court of
                                                                         Justice, in particular BAT & Reynolds v. Commission, and the
                                                                         consequent failure to vindicate the rights of the applicant as a
                                                                         complainant, while holding that nine days was sufficient for
                                                                         Kish to provide comments.


title: Case T-415/09: Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE)

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/32

         Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE)
   (Case T-415/09)
   2009/C 297/49
   Language in which the application was lodged: English

      Parties

      Applicant: New Yorker SHK Jeans GmbH (Braunschweig, Germany) (represented by: A. Gaul, T. Golda, S. Kirschstein-Freund and V. Spitz lawyers)

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

      Other party to the proceedings before the Board of Appeal: Vallis K — Vallis A & Co. OE (Athens, Greece)

      Form of order sought

               —

               Amend the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 and rule that the appeal is justified and the opposition is rejected for goods in class 25;

               —

               Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 in so far as the appeal is dismissed and the rejection of the application for goods in class 25 is confirmed;

               —

               Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark “FISHBONE” for goods in classes 18 and 25

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

      Mark or sign cited: Greek trade mark registration of the mark “FISHBONE BEACHWEAR” for goods in class 25; earlier sign “Fishbone” (word and device) used in the course of trade in Greece for “garments in general, footwear, and headgear”

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Allowed the appeal in part and dismissed the appeal for the reminder

      Pleas in law: Infringement of Articles 43(2) and 74(2) of Council Regulation No 40/94 (which became Articles 42(2) and 76(2) of Council Regulation No 207/2009), as well as of Rule 22(2) of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly concluded that it was entitled to take into account the catalogues submitted on 15 January 2007; infringement of Article 73 of Council Regulation No 40/94 (which became Article 75 of Council Regulation No 207/2009) as the Board of Appeal did not state the reasons for taking into account the catalogues submitted on 15 January 2007; infringement of Articles 43(2) and (5), as well as 15(1) and (2)(a) of Council Regulation No 40/94 (which became Articles 42(2), (5) and 15(1), first and second subparagraph, point a of Council Regulation No 207/2009) as the Board of Appeal wrongly stated that the genuine use of the opposition mark was shown; infringement of Article 8(1)(b) of Council Regulation No 40/94 (which became Article 8(1)(b) of Council Regulation No 207/2009) as the Board of Appeal wrongly assumed that there was a likelihood of confusion between the trade marks concerned.

      (1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).


title: Case C-412/04: Judgment of the Court (Second Chamber) of 21 February 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Public works, supply and service contracts — Directives 92/50/EEC, 93/36/EEC, 93/37/EEC and 93/38/EEC — Transparency — Equal treatment — Contracts excluded from the scope of those directives on account of their value)

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/2

         Judgment of the Court (Second Chamber) of 21 February 2008 — Commission of the European Communities v Italian Republic
   (Case C-412/04) (1)

   (Failure of a Member State to fulfil its obligations - Public works, supply and service contracts - Directives 92/50/EEC, 93/36/EEC, 93/37/EEC and 93/38/EEC - Transparency - Equal treatment - Contracts excluded from the scope of those directives on account of their value)
   (2008/C 92/02)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: X. Lewis, K. Wiedner, Agent and G. Bambara, lawyer)

      Defendant: Italian Republic (represented by: I. Braguglia and M. Fiorilli, agents)

      Intervening parties support the defendant: French Republic, (represented by G. de Bergues, agent), Kingdom of Holland (represented by: H.G. Sevenster and M. de Grave, agents), Finnish Republic (represented by: A. Guimaraes-Purokoski, agent)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. l) Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84) and Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — Infringement of Articles 43 and 49 EC — Infringement of the principles of transparency and equal treatment
   Operative part of the judgment
   The Court:

               1.

               Declares that, by adopting:

                           —

                           Article 2(1) of Law No 109 of 11 February 1994 — Framework Law on public works (legge quadro in materia di lavori pubblici), as amended by Law No 166 of 1 August 2002, the Italian Republic has failed to fulfil its obligations under Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997;

                           —

                           Article 2(5) of Law No 109/1994 as amended, the Italian Republic has failed to fulfil its obligations under Directive 93/37 as amended; and

                           —

                           Articles 27(2) and 28(4) of Law No 109/1994 as amended, the Italian Republic has failed to fulfil its obligations under Directive 92/50 and Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors.

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Commission of the European Communities and the Italian Republic to bear their own costs;

               4.

               Orders the French Republic, the Kingdom of the Netherlands and the Republic of Finland to bear their own costs.

      (1)  OJ C 300, 4.12.2004.