title: JUDGMENT OF THE COURT (Sixth Chamber) of 12 November 1998 in Case C-102/96: Commission of the European Communities v. Federal Republic of Germany (Failure of a Member State to fulfil its obligations - Directives 64/433/EEC, 91/497/EEC and 89/662/EEC - Requirement for special marking and heat treatment of meat from boars)

text:
23.1.1999            EN                  Official Journal of the European Communities                                   C 20/1
                                                                 I
                                                           (Information)
                                             COURT OF JUSTICE
                                                       COURT OF JUSTICE
              JUDGMENT OF THE COURT                                  Federal Republic of Germany has failed to fulfil its
                                                                     obligations under Article 5(1)(o) and Article 6(1)(b) of
                      (Sixth Chamber)                                Council Directive 64/433/EEC of 26 June 1964 on health
                                                                     problems affecting intra-Community trade in fresh meat
                   of 12 November 1998
                                                                     (OJ, English Special Edition 1963Ð1964, p. 185), as
      in Case C-102/96: Commission of the European                   reenacted by Council Directive 91/497/EEC of 29 July
      Communities v. Federal Republic of Germany (1)                 1991 (OJ L 268, 24.9.1991, p. 69), in conjunction with
                                                                     Articles 5(1), 7 and 8 of Council Directive 89/662/EEC of
(Failure of a Member State to fulfil its obligations Ð               11 December 1989 concerning veterinary checks in
Directives 64/433/EEC, 91/497/EEC and 89/662/EEC Ð                   intra-Community trade with a view to the completion of
Requirement for special marking and heat treatment of                the internal market (OJ L 395, 30.12.1989, p. 13) and
                      meat from boars)                               under Article 30 of the EC Treaty Ð the Court (Sixth
                                                                     Chamber), composed of: G. Hirsch, President of the
                       (1999/C 20/01)                                Second Chamber, acting as President of the Sixth
                                                                     Chamber, G. F. Mancini, J. L. Murray (Rapporteur), H.
                                                                     Ragnemalm and K. M. Ioannou, Judges; A. La Pergola,
                                                                     Advocate-General; H. A. Rühl, Principal Administrator,
              (Language of the case: German)                         for the Registrar, has given a judgment on 12 November
                                                                     1998, in which it:
 (Provisional translation; the definitive translation will be        1. Declares that, by imposing the obligation of marking
         published in the European Court Reports)                        the carcases of uncastrated male pigs and subjecting
                                                                         them to heat treatment whenever the meat, regardless
                                                                         of carcase weight, has an androstenone content of
                                                                         more than 0,5 eg/g, as shown by Professor Claus's
In Case C-102/96: Commission of the European                             modified enzyme immunoassay, and by regarding the
Communities (Agent: Klaus-Dieter Borchardt) v. Federal                   meat as giving off a pronounced sexual odour and
Republic of Germany (Agents: Ernst Röder and Bernd                       consequently unfit for human consumption if the
Kloke) Ð application for a declaration that, by imposing                 threshold of 0,5 eg/g of androstenone is exceeded, the
the obligation of marking the carcases of uncastrated male               Federal Republic of Germany has failed to fulfil its
pigs and subjecting them to heat treatment whenever the                  obligations under Articles 5(1)(o) and 6(1)(b) of
meat, regardless of carcase weight, has an androstenone                  Council Directive 64/433/EEC of 26 June 1964 on
content of more than 0,5 eg/g, as shown by Professor                     health problems affecting intra-Community trade in
Claus's modified enzyme immunoassay, and by regarding                    fresh meat, as reenacted by Council Directive
the meat as giving off a pronounced sexual odour and                     91/497/EEC of 29 July 1991, and under Articles 5(1),
consequently unfit for human consumption if the                          7 and 8 of Council Directive 89/662/EEC of
threshold of 0,5 eg/g of androstenone is exceeded, the                   11 December 1989 concerning veterinary checks in
 ---pagebreak--- C 20/2                EN                  Official Journal of the European Communities                                   23.1.1999
     intra-Community trade with a view to the completion             Wathelet, Judges; P. LeÂger, Advocate-General; D.
     of the internal market;                                         Louterman-Hubeau, Principal Administrator, for the
                                                                     Registrar, has given a judgment on 17 November 1998, in
                                                                     which it has ruled:
2. Orders the Federal Republic of Germany to pay the
     costs.
                                                                     1. On a proper construction of Article 5, point 1, of
                                                                         the Convention of 27 September 1968 on Jurisdiction
(1) OJ C 158, 1.6.1996.                                                  and the Enforcement of Judgments in Civil and
                                                                         Commercial Matters, as amended by the Convention
                                                                         of 9 October 1978 on the accession of the Kingdom of
                                                                         Denmark, Ireland and the United Kingdom of Great
                                                                         Britain and Northern Ireland, and by the Convention
                                                                         of 25 October 1982 on the accession of the Hellenic
                                                                         Republic, the court which has jurisdiction by virtue
                                                                         of that provision also has jurisdiction to order
                                                                         provisional or protective measures, without that
               JUDGMENT OF THE COURT                                     jurisdiction being subject to any further conditions.
                    of 17 November 1998
in Case C-391/95 (reference for a preliminary ruling from            2. Where the parties have validly excluded the
the Hoge Raad der Nederlanden): Van Uden Maritime BV,                    jurisdiction of the courts in a dispute arising under a
trading as Van Uden Africa Line, v. Kommanditgesellschaft                contract and have referred that dispute to arbitration,
              in Firma Deco-Line and Another (1)                         no provisional or protective measures may be ordered
                                                                         on the basis of Article 5, point 1, of the Convention of
(Brussels Convention Ð Arbitration clause Ð Interim
                                                                         27 September 1968.
       payment Ð Meaning of provisional measures')
                        (1999/C 20/02)
                                                                     3. Where the subject-matter of an application for
                                                                         provisional measures relates to a question falling
                                                                         within the scope ratione materiae of the Convention of
                (Language of the case: Dutch)                            27 September 1968, that Convention is applicable and
                                                                         Article 24 thereof may confer jurisdiction on the court
                                                                          hearing that application even where proceedings have
                                                                          already been, or may be, commenced on the substance
                                                                          of the case and even where those proceedings are to be
  (Provisional translation; the definitive translation will be            conducted before arbitrators.
          published in the European Court Reports)
                                                                     4. On a proper construction, the granting of provisional
In Case C-391/95: reference to the Court under the                        or protective measures on the basis of Article 24 of the
Protocol of 3 June 1971 on the interpretation by the                      Convention of 27 September 1968 is conditional on,
Court of Justice of the Convention of 27 September 1968                   inter alia, the existence of a real connecting link
on Jurisdiction and the Enforcement of Judgments in Civil                 between the subject-matter of the measures sought and
and Commercial Matters from the Hoge Raad der                             the territorial jurisdiction of the Contracting State of
Nederlanden (Supreme Court of the Netherlands) for a                      the court before which those measures are sought.
preliminary ruling in the proceedings pending before that
court between Van Uden Maritime BV, trading as Van
Uden Africa Line, and Kommanditgesellschaft in Firma                 5. Interim payment of a contractual consideration does
Deco-Line and Another Ð on the interpretation of                          not constitute a provisional measure within the
Article 1, second paragraph, point 4, Article 3, Article 5,               meaning of Article 24 of the Convention of
point 1, and Article 24 of the Convention of 27 September                 27 September 1968 unless, first, repayment to the
1968, cited above (OJ L 304, 30.10.1978, p. 17), as                       defendant of the sum awarded is guaranteed if the
amended by the Convention of 9 October 1978 on the                        plaintiff is unsuccessful as regards the substance of his
accession of the Kingdom of Denmark, Ireland and the                      claim and, second, the measure sought relates only to
United Kingdom of Great Britain and Northern Ireland                      specific assets of the defendant located or to be
(OJ L 304, 30.10.1978, p. 1, and Ð amended text Ð                         located within the confines of the territorial
p. 77), and by the Convention of 25 October 1982 on the                   jurisdiction of the court to which application is made.
accession of the Hellenic Republic (OJ L 388, 31.12.1982,
p. 1) Ð the Court, composed of: G. C. Rodríguez Iglesias,
President, P. J. G. Kapteyn, J.-P. Puissochet, G. Hirsch, P.         (1) OJ C 46, 17.2.1996.
Jann (Presidents of Chambers), G. F. Mancini, J. C.
Moitinho de Almeida, C. Gulmann, J. L. Murray, D. A. O.
Edward, H. Ragnemalm (Rapporteur), L. Sevón and M.


title: Case C-46/11: Judgment of the Court (Eighth Chamber) of 15 March 2012 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Inadequate protection of certain species, including the otter (Lutra Lutra))

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/9

         Judgment of the Court (Eighth Chamber) of 15 March 2012 — European Commission v Republic of Poland
   (Case C-46/11) (1)

   (Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Inadequate protection of certain species, including the otter (Lutra Lutra))
   2012/C 133/14
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: S. Petrova and K. Hermann, Agents)

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

      Re:

   Failure of a Member State to fulfil obligations — Breach of Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) — Inadequate protection of certain species, including the otter (Lutra Lutra)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to transpose correctly the conditions governing the derogations laid down in Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Republic of Poland has failed to comply with its obligations under that provision;

               2.

               Orders the Republic of Poland to pay the costs.

      (1)  OJ C 103, 2.4.2011.


title: Case C-495/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Centre hospitalier universitaire de Besançon v Thomas Dutrueux, Caisse primaire d’assurance maladie du Jura (Directive 85/374/EEC — Liability for defective products — Scope — National rules requiring public healthcare establishments to pay compensation, even when they are not at fault, for damage sustained by a patient as a result of the failure of equipment or products used in the course of treatment)

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/11

         Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Centre hospitalier universitaire de Besançon v Thomas Dutrueux, Caisse primaire d’assurance maladie du Jura
   (Case C-495/10) (1)

   (Directive 85/374/EEC - Liability for defective products - Scope - National rules requiring public healthcare establishments to pay compensation, even when they are not at fault, for damage sustained by a patient as a result of the failure of equipment or products used in the course of treatment)
   2012/C 49/17
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Centre hospitalier universitaire de Besançon

      Defendants: Thomas Dutrueux, Caisse primaire d’assurance maladie du Jura

      Re:

   Reference for a preliminary ruling — Conseil d’État — Interpretation of Article 13 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29) — Liability of public health establishments towards their patients — Permissibility of a national liability scheme which allows an injured person to obtain compensation, even in the absence of fault, for injury caused by the failure of defective products — Limitation of the liability of the provider of services

      Operative part of the judgment

   The liability of a service provider which, in the course of providing services such as treatment given in a hospital, uses defective equipment or products of which it is not the producer within the meaning of Article 3 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, as amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999, and thereby causes damage to the recipient of the service does not fall within the scope of the directive. Directive 85/374 does not therefore prevent a Member State from applying rules, such as those at issue in the main proceedings, under which such a provider is liable for damage thus caused, even in the absence of any fault on its part, provided, however, that the injured person and/or the service provider retain the right to put in issue the producer’s liability on the basis of the directive when the conditions laid down by the latter are fulfilled.

      (1)  OJ C 30, 29.1.2011.


title: Case T-183/14: Action brought on 21 March 2014  — Schmiedag v Commission

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/53

         Action brought on 21 March 2014 — Schmiedag v Commission
   (Case T-183/14)
   2014/C 142/67
   Language of the case: German

      Parties

      Applicant: Schmiedag GmbH (Hagen, Germany) (represented by: H. Höfler, C. Kahle and V. Winkler, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the defendant’s decision, in respect of State aid SA.33995 (2013/C) — Germany — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users, to initiate the formal procedure under Article 108(2) TFEU, notified with the invitation to submit comments (OJ 2014 C 37, p. 73);

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies in essence on the following pleas in law:

               1.

               Breach of essential procedural requirements

                           —

                           The applicant submits here that the defendant failed to give sufficient reasons, in accordance with the second paragraph of Article 296 TFEU, for its decision to initiate a formal investigation procedure under Article 108(2) TFEU. The decision to initiate the investigation procedure contains no specific substantive assessment based on factual and legal aspects with regard to the existence of all the constituent elements for the purpose of Article 107(1) TFEU.

               2.

               Infringement of the Treaties

                           —

                           The applicant submits here that the Commission’s decision to initiate the investigation procedure infringes Article 107(1) TFEU. In this respect, the applicant states that the European Court of Justice has already held in Case C-397/98 PreussenElektra [2001] ECR I-2099 that the Law on the priority of renewable energy sources (‘EEG’) does not grant any aid. The EEG remains in force essentially unchanged. Particularly the essential aspects for the State aid assessment have remained unchanged. The same applies to the defendant’s decision of 22 May 2002 (OJ 2002 C 164, p. 5), in which the defendant stated that the EEG did not constitute aid.

                           —

                           The applicant further submits that the reduced EEG-surcharge does not fulfil the State aid conditions under Article 107(1) TFEU. In that regard, it submits, in particular, that the reduced EEG-surcharge does not constitute an advantage which a user would not have received under normal market conditions, that it is not selective, that it is not aid granted by a Member State or through State resources and that it does not result in a distortion of competition or in a possible effect upon trade between Member States.

               3.

               Compatibility with the common market

                           —

                           If the Court is of the opinion that State aid exists, that aid would, in the applicant’s view, be compatible with the common market in accordance with Article 107(3)(b) and (c) TFEU.


title: Case T-397/09: Judgment of the General Court of 25 May 2011 — Prinz von Hannover v OHIM (Representation of a coat of arms) (Community trade mark — Application for Community figurative mark representing a coat of arms — Absolute ground for refusal — Imitation from a heraldic point of view of the symbol of a State — Article 7(1)(h) of Regulation (EC) No 207/2009 — Article 6 ter of the Paris Convention)

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/21

         Judgment of the General Court of 25 May 2011 — Prinz von Hannover v OHIM (Representation of a coat of arms)
   (Case T-397/09) (1)

   (Community trade mark - Application for Community figurative mark representing a coat of arms - Absolute ground for refusal - Imitation from a heraldic point of view of the symbol of a State - Article 7(1)(h) of Regulation (EC) No 207/2009 - Article 6 ter of the Paris Convention)
   2011/C 204/36
   Language of the case: German

      Parties

      Applicant: Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg (Hanover, Germany) (represented by: R. Stötzel and J. Hilger, lawyers)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 23 July 2009 (Case R 1361/2008-1) concerning an application for registration as a Community trade mark of a figurative sign representing the coat of arms of the house of Hanover.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg to pay the costs.

      (1)  OJ C 297, 5.12.2009.


title: Case T-220/04: Judgment of the Court of First Instance of 28 March 2007 — Spain v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Tomatoes and citrus fruits — Sample checks — Force majeure)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/32

         Judgment of the Court of First Instance of 28 March 2007 — Spain v Commission
   (Case T-220/04) (1)

   (EAGGF - Guarantee Section - Expenditure excluded from Community financing - Tomatoes and citrus fruits - Sample checks - Force majeure)
   (2007/C 96/66)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: L. Fraguas Gadea and F. Díez Moreno, Agents)

      Defendant: Commission of the European Communities (represented by: initially M. Nolin and S. Pardo Quintillán and subsequently by M. Nolin and F. Jimeno Fernández, Agents)
   Re:
   Application for annulment in part of Commission Decision 2004/136/EC of 4 February 2004 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2004 L 40, p. 31)
   Operative part of the judgment
   The Court:

               1.

               annuls Commission Decision 2004/136/EC of 4 February 2004 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund in so far as it excludes from Community financing a sum of EUR 979 554,48 corresponding to an adjustment of the aid to Andalusian growers of certain citrus fruits in respect of the financial years 1998 to 2001;

               2.

               dismisses the remainder of the action;

               3.

               orders the parties to bear their own costs.

      (1)  OJ C 146, 29.5.2004 (formerly C-175/04).


title: Case T-59/15: Action brought on 4 February 2015 — Amitié v EACEA

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/53

         Action brought on 4 February 2015 — Amitié v EACEA
   (Case T-59/15)
   (2015/C 138/71)
   Language of the case: English

      Parties

      Applicant: Amitié Srl (Bologna, Italy) (represented by: D. Bogaert, lawyer)

      Defendant: Education, Audiovisual and Culture Executive Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               declare admissible the application brought against EACEA;

               —

               declare that the decision sent by EACEA dated 26 November 2014 is not legally grounded and, as consequence, order the immediate cancellation of all the measures adopted by EACEA against the applicant;

               —

               declare that the debit note No 3241415195 of € 9 41  310,38 dated 12 December 2014 addressed by the EACEA to the applicant is not due;

               —

               order the EACEA to pay the costs.

      Pleas in law and main arguments

   Through this application, governed by Articles 256 and 272 TFUE, the applicant requests to the General Court to declare that EACEA’s decision of 26 November 2014 stating the measures adopted against AMITIE following the investigation conducted by the European Anti-Fraud Office (OLAF) is not grounded.
   In support of the action, the applicant relies on two pleas in law.

               1.

               First plea in law, alleging that the measures adopted against the applicant by EACEA are unjustified.

                           —

                           Non fulfilment of the conditions posted for the application of the measures: infringement of the provisions of Regulation No 2988/1995 (1) as well as of the principle of proportionality.

                           —

                           Infringement of the contractual provisions and wrongful application of the Regulations No 966/2012 (2) and No 1268/2012 (3). None of the measures (contained in EACEA decision dated 26 November, 2014), implemented against the applicant is legally grounded. On a subsidiary way, the recovery of all the amounts granted to the applicant would constitute an abuse of right and an unjust enrichment to the benefit of EACEA.

               2.

               Second plea in law, alleging lack of validity of OLAF investigations and conclusions (infringement of the contractual provisions and applicable Regulations).

                           —

                           The investigations made by OLAF did not comply with the Regulation No 883/2013 (4) and/or with the general principles applicable to the matter.

                           —

                           As EACEA decision is based on OLAF conclusions further to its investigations, the absence of legality affecting OLAF investigations and report necessarily affects EACEA’s decision.

      (1)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests

      (2)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002

      (3)  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union

      (4)  Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999


title: Case T-413/10 R: Order of the President of the General Court of 13 April 2011 — Socitrel v Commission (Application for interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation — Pecuniary damage — No exceptional circumstances — No urgency)

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/16

         Order of the President of the General Court of 13 April 2011 — Socitrel v Commission
   (Case T-413/10 R)
   (Application for interim measures - Competition - Commission decision imposing a fine - Bank guarantee - Application for suspension of operation - Pecuniary damage - No exceptional circumstances - No urgency)
   2011/C 179/28
   Language of the case: Portuguese

      Parties

      Applicant: Socitrel — Sociedade Industrial de Trefilaria, SA (Trofa, Portugal) (represented by: F. Proença de Carvalho and T. Luísa de Faria, lawyers)

      Defendant: European Commission (represented by: F. Castillo de la Torre, V. Bottka and P. Costa de Oliveira, Agents, and M. Marques Mendes, lawyer)

      Re:

   Application for suspension of the operation of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a procedure pursuant to Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Prestressed steel) and for waiver of the obligation to establish a bank guarantee in order to prevent the immediate recovery of the fine imposed under Article 2 of that decision.

      Operative part of the order

   The Court hereby orders:

               1.

               The application for interim measures is dismissed;

               2.

               The costs are reserved.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 27 October 1998 in Case C-4/97 (reference for a preliminary ruling from the Commissione Tributaria Provinciale di Firenze): Manifattura Italiana Nonwoven SpA v. Direzione Regionale delle Entrate per la Toscana (Directive 69/335/EEC - Taxes on the raising of capital - Tax on companies' net assets)

text:
19.12.98               EN                 Official Journal of the European Communities                                      C 397/7
     period of maternity leave referred to by Article 8 of                         JUDGMENT OF THE COURT
     that directive to the period during which the woman
     receives the pay provided for by that contract or                                      (Sixth Chamber)
     national legislation.
                                                                                of 27 October 1998
(1) OJ C 54, 22.2.1997.                                              in Joined Cases C-31/97 and C-32/97 (references for a
                                                                     preliminary ruling from the Tribunal Superior de Justicia
                                                                     de Catalunya): Fuerzas EleÂctricas de Catalunya SA
                                                                     (FECSA) and Autopistas Concesionaria EspanÄola SA v.
                                                                     Departament d'Economía i Finances de la Generalitat de
                                                                                Catalunya (1)
                                                                     (Directive 69/335/EEC Ð Indirect taxes on the raising of
               JUDGMENT OF THE COURT                                 capital Ð Duty on notarial deeds recording the repayment
                        (Sixth Chamber)                                                   of debenture loans)
                      of 27 October 1998                                                     (98/C 397/11)
in Case C-4/97 (reference for a preliminary ruling from
the Commissione Tributaria Provinciale di Firenze):
Manifattura Italiana Nonwoven SpA v. Direzione
                                                                                (Language of the case: Spanish)
           Regionale delle Entrate per la Toscana (1)
(Directive 69/335/EEC Ð Taxes on the raising of capital
               Ð Tax on companies' net assets)
                         (98/C 397/10)                                 (Provisional translation; the definitive translation will be
                                                                              published in the European Court Reports)
                (Language of the case: Italian)
                                                                     In Joined Cases C-31/97 anbd C-32/97: references to the
  (Provisional translation; the definitive translation will be       Court under Article 177 of the EC Treaty from the
          published in the European Court Reports)                   Tribunal de Justicia de Catalunya, Spain, for a preliminary
                                                                     ruling in the proceedings pending before that court
                                                                     between Fuerzas EleÂctricas de Catalunya SA (FECSA)
                                                                     (C-31/97), Autopistas Concesionaria EspanÄola SA (C-32/
In Case C-4/97: reference to the Court under Article 177
                                                                     97) and Departament d'Economía i Finances de la
of the EC Treaty from the Commissione Tributaria
                                                                     Generalitat de Catalunya Ð on the interpretation of
Provinciale di Firenze (Provincial Tax Court, Florence)
                                                                     Articles 11(b) and 12 of Council Directive 69/335/EEC of
(Italy), for a preliminary ruling in the proceedings pending
                                                                     17 July 1969 concerning indirect taxes on the raising of
before that court between Manifattura Italiana Nonwoven
                                                                     capital (OJ, English Special Edition 1969 (II), p. 412) Ð
SpA and Direzione Regionale delle Entrate per la Toscana
                                                                     the Court (Sixth Chamber), composed of: G. Hirsch,
Ð on the interpretation of Council Directive 69/335/EEC
                                                                     President of the Second Chamber, acting as President of
of 17 July 1969 concerning indirect taxes on the raising of
                                                                     the Sixth Chamber, G. F. Mancini, H. Ragnemalm
capital (OJ, English Special Edition 1969 (II), p. 412), as
                                                                     (Rapporteur), R. Schintgen and K. M. Ioannou, Judges; N.
amended by Council Directive 85/303/EEC of 10 June
                                                                     Fennelly, Advocate-General; H. von Holstein, Deputy
1985 (OJ L 156, 15.6.1985, p. 23) Ð the Court (Sixth
                                                                     Registrar, for the Registrar, has given a judgment on
Chamber), composed of: P. J. G. Kapteyn, President of the
                                                                     27 October 1998, in which it has ruled:
Chamber, G. F. Mancini, J. L. Murray, H. Ragnemalm
(Rapporteur) and K. M. Ioannou, Judges; N. Fennelly,
Advocate-General; H. A. Rühl, Principal Administrator,
for the Registrar, has given a judgment on 27 October
1998, in which it has ruled:                                         Article 11(b) of Council Directive 69/335/EEC of 17 July
                                                                     1969 concerning indirect taxes on the raising of capital
                                                                     must be interpreted as meaning that the prohibition of
                                                                     taxation on debenture loans applies to the duty on
Council Directive 69/335/EEC of 17 July 1969 concerning
                                                                     notarial deeds recording the repayment of loans. Such a
indirect taxes on the raising of capital, as amended by
                                                                     duty cannot come within the derogation provided for in
Council Directive 85/303/EEC of 10 June 1985, does not
                                                                     Article 12(1)(d) of the said directive.
preclude the levying on capital companies of a tax such as
the tax on companies' net assets.
                                                                     (1) OJ C 94, 22.3.1997.
( ) OJ C 94, 22.3.1997.
 1


title: Case C-218/10: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 6 May 2010 — ADV Allround Vermittlungs AG in liquidation v Finanzamt Hamburg-Bergedorf

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/16

         Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 6 May 2010 — ADV Allround Vermittlungs AG in liquidation v Finanzamt Hamburg-Bergedorf
   (Case C-218/10)
   ()
   2010/C 221/25
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: ADV Allround Vermittlungs AG in liquidation

      Defendant: Finanzamt Hamburg-Bergedorf

      Questions referred

               1.

               Is the sixth indent of Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (‘Directive 77/388’) (1) [subsequently, Article 56(1)(f) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in the version in force until 31 December 2009 (‘Directive 2006/112’)] to be interpreted as meaning that ‘supply of staff’ also includes the supply of self-employed persons not in the employ of the trader providing the service?

               2.

               Are Articles 17(1), 17(2)(a), 17(3)(a) and 18(1)(a) of Directive 77/388 [now Articles 167, 168(a), 169(a) and 178(a) of Directive 2006/112] to be interpreted as meaning that provision must be made in national procedural law to ensure that the taxability and liability to tax of one and the same service are assessed in the same way in relation to the trader providing the service and the trader receiving it, even where the two traders fall within the jurisdiction of different tax authorities?

         Only if the answer to Question 2 is in the affirmative:

               3.

               Are Articles 17(1), 17(2)(a), 17(3)(a) and 18(1)(a) of Directive 77/388 [now Articles 167, 168(a), 169(a) and 178(a) of Directive 2006/112] to be interpreted as meaning that the period within which the recipient of a service may apply for a deduction of the input tax connected with the service received must not expire before a decision on taxability and liability to tax which is binding on the trader providing the service has been adopted?

      (1)  OJ 1977 L 145, p. 1.


title: ORDER OF THE COURT (Fourth Chamber) of 15 January 1998 in Case C-403/95 P: Dieter Obst v. Commission of the European Communities (Appeal - Official - Recruitment procedure - Article 45 of the Staff Regulations - Statement of reasons - Compensation for damage - Appeal clearly inadmissible and unfounded)

text:
C 113/6               EN                  Official Journal of the European Communities                                      11.4.98
                  ORDER OF THE COURT                                 The applicant claims that the Court should:
                      (Fourth Chamber)
                     of 15 January 1998                              Ð declare that, by not taking the necessary measures to
                                                                          comply with the judgment of the Court of Justice in
in Case C-403/95 P: Dieter Obst v. Commission of the                      Case C-45/91 Commission v. Greece and, in particular,
                  European Communities (1)                                by not having yet drawn up and implemented the
                                                                          plans and programmes needed for the disposal of
(Appeal Ð Official Ð Recruitment procedure Ð Article 45
                                                                          waste and of toxic waste in the area of Chania so that
of the Staff Regulations Ð Statement of reasons Ð
                                                                          human health is not endangered and the environment
Compensation for damage Ð Appeal clearly inadmissible
                                                                          is not harmed, the Hellenic Republic has failed to
                        and unfounded)
                                                                          fulfil its obligations under Article 171 of the Treaty,
                         (98/C 113/13)
                                                                     Ð order the Hellenic Republic to pay the costs.
               (Language of the case: German)
                                                                     Pleas in law and main arguments adduced in support:
  (Provisional translation; the definitive translation will be
         published in the European Court Reports)                    In its judgment of 7 April 1992 in Case C-45/91
                                                                     Commission v. Greece [1992] ECR I-2509, the Court of
                                                                     Justice found that the Hellenic Republic had failed to fulfil
In Case C-403/95 P: Dieter Obst, an official of the                  its obligations under Articles 4 and 6 of Council Directive
Commission of the European Communities, residing at                  75/442/EEC of 15 July 1975 on waste (1) and Articles 5
Everberg, Belgium, represented by Lothar Mahlberg,                   and 12 of Council Directive 78/319/EEC of 20 March
Rechtsanwalt, Bonn, with an address for service c/o                  1978 on toxic and dangerous waste (2).
Marianne Moritz, 25a rue de Schönfels, Bridel,
Luxembourg Ð appeal against the judgment of the Court
of First Instance (Second Chamber) of 19 October 1995 in             The Commission stated in its reasoned opinion of 6 August
Case T-562/93 Obst v. Commission [1995] ECR-SC II-                   1996 that, four years after delivery of that judgment, the
737, seeking to have that judgment set aside, the other              Hellenic Republic had not taken the necessary measures to
party to the proceedings being: Commission of the                    comply with it. The Commission points out that, in
European Communities (Agent: Julian Currall, assisted by             accordance with the Court's case-law (see Case 169/87
Bertrand Wägenbaur) Ð the Court (Fourth Chamber),                    Commission v. France [1988] ECR 4093 and Case 375/89
composed of H. Ragnemalm, President of the Chamber,                  Commission v. Belgium [1991] ECR I-383), the process of
J. L. Murray and K. M. Ioannou (Rapporteur), Judges;                 complying with a judgment of the Court which establishes
M. B. Elmer, Advocate-General; R. Grass, Registrar, has              that a Member State has failed to fulfil its obligations
given an order the operative part of which is as follows:            must be initiated at once and be completed as soon as
                                                                     possible. It thus cannot be disputed that the Hellenic
                                                                     Republic has failed to fulfil its obligations pursuant to
1. the appeal is dismissed;                                          Article 171 of the Treaty. In addition, the Commission
                                                                     claims pursuant to Article 171(2) of the Treaty that the
                                                                     Court should impose on the Hellenic Republic a penalty
2. the appellant shall pay the costs.
                                                                     payment of ECU 24 600 per day of default in respect of
                                                                     the failure to comply with the judgment of the Court.
(1) OJ C 64, 2.3.1996, p. 8.
                                                                     (1) OJ L 194, 25.7.1975, p. 39.
                                                                     (2) OJ L 84, 31.3.1978, p. 43.
Action brought on 17 November 1997 by the Commission
of the European Communities against the Hellenic
                             Republic                                Appeal brought on 7 January 1998 by Henri de Compte
                       (Case C-387/97)                               against the judgment delivered on 5 November 1997 by
                                                                     the First Chamber of the Court of First Instance of the
                         (98/C 113/14)                               European Communities in Case T-26/89 (125) Henri de
                                                                                Compte v. European Parliament
                                                                                (Case C-2/98 P)
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities                                        (98/C 113/15)
on 17 November 1997 by the Commission of the
European Communities, represented by Maria Kontou-
Durande, of its Legal Service, with an address for service           An appeal has been brought before the Court of Justice of
in Luxembourg at the office of Carlos Gómez de la Cruz,              the European Communities on 7 January 1998 by Henri
also of its Legal Service, Wagner Centre, Kirchberg.                 de Compte, represented by Henri Ferretti, of the


title: Case C-496/15: Judgment of the Court (Second Chamber) of 2 March 2017 (request for a preliminary ruling from the Landessozialgericht Rheinland-Pfalz, Mainz — Germany) — Alphonse Eschenbrenner v Bundesagentur für Arbeit (Reference for a preliminary ruling — Freedom of movement for workers — Article 45 TFEU — Regulation (EU) No 492/2011 — Article 7 — Equal treatment — Frontier worker subject to income tax in the Member State of residence — Benefit paid by the Member State of employment in the event of the employer’s insolvency — Detailed rules for the calculation of the insolvency benefit — Notional taking into account of the income tax of the Member State of employment — Insolvency benefit lower than the previous net remuneration — Bilateral convention for the avoidance of double taxation)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/4

         Judgment of the Court (Second Chamber) of 2 March 2017 (request for a preliminary ruling from the Landessozialgericht Rheinland-Pfalz, Mainz — Germany) — Alphonse Eschenbrenner v Bundesagentur für Arbeit
   (Case C-496/15) (1)

   ((Reference for a preliminary ruling - Freedom of movement for workers - Article 45 TFEU - Regulation (EU) No 492/2011 - Article 7 - Equal treatment - Frontier worker subject to income tax in the Member State of residence - Benefit paid by the Member State of employment in the event of the employer’s insolvency - Detailed rules for the calculation of the insolvency benefit - Notional taking into account of the income tax of the Member State of employment - Insolvency benefit lower than the previous net remuneration - Bilateral convention for the avoidance of double taxation))
   (2017/C 121/05)
   Language of the case: German

      Referring court

   Landessozialgericht Rheinland-Pfalz, Mainz

      Parties to the main proceedings

      Applicant: Alphonse Eschenbrenner

      Defendant: Bundesagentur für Arbeit

      Operative part of the judgment

   Article 45 TFUE and Article 7 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted as not precluding, in circumstances such as those at issue in the main proceedings, the amount of the insolvency benefit awarded by a Member State to a frontier worker who is not subject to income tax in that State, and for whom that benefit, under the provisions applicable to him, is not taxable, from being determined by deducting income tax, as it applies in that State, from the remuneration used to calculate that benefit, with the consequence that that frontier worker, unlike persons working and residing in that State, does not receive a benefit corresponding to his previous net remuneration. The fact that that worker does not have a claim against his employer corresponding to the part of his previous gross salary which he has not received because of that deduction has no effect in that regard.

      (1)  OJ C 429, 21.12.2015.


title: Case C-77/15 P: Appeal brought on 19 February 2015 by Court of Justice of the European Union against the order of the General Court (Third Chamber) delivered on 9 January 2015 in Case T-409/14 Marcuccio v European Union and Court of Justice of the European Union

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/41

         Appeal brought on 19 February 2015 by Court of Justice of the European Union against the order of the General Court (Third Chamber) delivered on 9 January 2015 in Case T-409/14 Marcuccio v European Union and Court of Justice of the European Union
   (Case C-77/15 P)
   (2015/C 138/55)
   Language of the case: Italian

      Parties

      Appellant: Court of Justice of the European Union (represented by: A.V. Placco, Agent)

      Other party to the proceedings: Luigi Marcuccio

      Form of order sought

   The CJEU claims that the Court of Justice should:

               —

               Set aside the order of the General Court of the European Union (Third Chamber) of 9 January 2015 in Case T-409/14 Marcuccio v European Union and Court of Justice of the European Union, in so far as is rejects the second, third and fourth heads of claim of its application to the General Court under Article 114 of that court’s Rules of Procedure;

               —

               grant those heads of claim and, accordingly:

                           —

                           giving a final ruling on the dispute, dismiss Mr Marcuccio’s damages claim as inadmissible on the basis that it is directed against the CJEU (as representative of the European Union);

                           —

                           as a subsidiary claim, in the event that the Court of Justice considers that the fact that that claim is directed against the CJEU and not against the Commission (as representative of the European Union) is irrelevant to the admissibility of the claim, but that, in ruling on the preliminary issue raised by the CJEU before the General Court, that Court should have ordered that the Commission should be substituted for the CJEU as defendant, refer the case back to the General Court in order for it to give a ruling on Mr Marcuccio’s damages claim, in compliance with the points of law decided by the Court of Justice;

               —

               order Mr Marcuccio to pay the costs incurred by the CJEU in the proceedings at first instance and in the appeal proceedings.

      Pleas in law and main arguments

   In its first ground of appeal, concerning infringement of the rules governing the representation of the European Union before its judicial bodies, the CJEU submits that, as there is no express provisions specifically relating to the representation of the European Union before its judicial bodies in actions brought under Article 268 TFEU seeking a declaration of the EU’s non-contractual liability, the rules relating to such representation are to be derived from the general principles governing the exercise of the adjudicative function, in particular the principle of sound administration of justice and the principles that justice must be dispensed independently and impartially.
   The CJEU divides the first ground of appeal into two parts concerning, on the one hand, failure to comply with the principle of sound administration of justice and, on the other, failure to comply with the principles that justice must be dispensed independently and impartially. In connection with the first part, the CJEU observes that the General Court’s conclusion that it is the task of the CJEU to represent the EU in the damages claim referred to above is clearly based on the case-law established by the judgment in Werhahn Hansamühle and Others v Council and Commission (63/72 to 69/71, EU:C:1973:121 (‘the judgment in Werhahn and Others’). The approach adopted in that line of case-law is to the effect that, where the Community (now the EU) is required to answer for the acts of one its institutions, it is to be represented before the Courts of the European Union by the institution (or institutions) to which the act giving rise to liability may be attributed. The CJEU maintains that that approach should not have been applied in the present case, since, for various reasons, the outcome of that approach is in fact contrary to the interests of the sound administration of justice, which, as is made expressly clear in the judgment in Werhahn and Others, is the raison d’être of that approach. In that context, the CJEU also alleges, as an incidental plea, failure to have due regard for the scope of the first paragraph of Article 317 TFEU and Article 53(1) of Regulation No 966/2012 (1), pursuant to which the General Court should have accepted the principle that damages such as those claimed in the present case should be allocated to the section of the EU budget relating to the Commission.
   In the second part of the first ground of appeal, the CJEU submits, in reliance on the judgment of the ECHR of 10 July 2008 in Mihalkov v Bulgaria (Case No 67719/01), that, in finding that the CJEU should represent the EU in Mr Marcuccio’s damages claim, the General Court failed to have regard to the requirements that a court must be independent and objectively impartial. Since, on the one hand, the act giving rise to the alleged liability occurred in the course of the exercise of its judicial functions by a bench of judges and, on the other, the bench of judges called upon to rule in the case (i) belongs to the same judicial body (the General Court) to which the body of judges to which liability has been attributed for the act giving rise to liability belongs and (ii) forms an integral part of the defendant in the same case (the CJEU), to which the judges of that bench are professionally connected, the requirements referred to above would be compromised, especially in a case in which, as the General Court maintained, damages such as those claimed in the present case should be borne by the budget relating to the CJEU.
   The CJEU goes on to claim, in its second ground of appeal, that, as it does not contain a specific rebuttal of the arguments put forward by the CJEU before the General Court, which were based on the scope of a series of judgments of the Court of Justice — including the judgment in Groupe Gascogne v Commission (C-58/12 P, EU:C:2013:770), Gascogne Sack v Commission (C-40/12 P, EU:C:2013:768) and Kendrion v Commission (C-50/12 P, EU:C:2013:771) — the order under appeal is vitiated in so far as it fails to have regard to the obligation to state reasons.

      (1)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).


title: Case T-230/05: Action brought on 24 June 2005 by Golf USA Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/30

         Action brought on 24 June 2005 by Golf USA Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-230/05)
   (2005/C 205/54)
   Language of the case: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 24 June 2005 by Golf USA Inc., established in Oklahoma City, Oklahoma, USA, represented by A.H. de Bosch Kemper-de Hilster, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the contested decision of the Second Board of Appeal of the OHIM of 25 April 2005 in Case R 823/2004-2 (GOLF-USA);

               —

               order the defendant to bear the costs.

         Pleas in law and main arguments

               Community trade mark concerned:

               Word mark GOLF USA for goods and services in classes 25 (sports, leisure shoes, outer clothes etc.), 28 (sport articles including golf clubs) and 35 (commercial retailing services of sport articles)

               Decision of the examiner:

               Refuses the application in total

               Decision of the Board of Appeal:

               Dismisses the appeal

               Pleas in law:

               Violation of Article 7(1)(b) and (c) of Council Regulation No 40/94.


title: Case C-332/04: Judgment of the Court (Third Chamber) of  16 March 2006  — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Directive 85/337/EEC as amended by Directive 97/11/EC — Assessment of the effects of projects on the environment — Inter-action between factors likely to be directly and indirectly affected — Obligation to publish the impact statement — Assessment limited to urban development projects outside urban areas — Construction project for a leisure complex at Paterna)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/17

         Judgment of the Court (Third Chamber) of 16 March 2006 — Commission of the European Communities v Kingdom of Spain
   (Case C-332/04) (1)

   (Failure of a Member State to fulfil its obligations - Directive 85/337/EEC as amended by Directive 97/11/EC - Assessment of the effects of projects on the environment - Inter-action between factors likely to be directly and indirectly affected - Obligation to publish the impact statement - Assessment limited to urban development projects outside urban areas - Construction project for a leisure complex at Paterna)
   (2006/C 131/29)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: G. Valero Jordana and F. Simonetti, acting as Agents)

      Defendant: Kingdom of Spain (represented by: M. Muñoz Perez, acting as Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Incomplete/incorrect transposition of Arts. 3, 9(1) and Paragraph 10(b) of Annex II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) — Failure to apply the transitional scheme established by Article 3 of Directive 97/11/EC — Failure to have submitted a construction project for a leisure complex at Paterna (Valencia) for an assessment
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to fully transpose Article 3 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11, by failing to transpose Article 9(1) of Directive 85/337, as amended by Directive 97/11, by failing to comply with the transitional scheme provided for by Article 3 of Directive 97/11, by failing to correctly transpose the combined provisions of Paragraph 10(b) of Annex II and Articles 2(1) and 4(2) of Directive 85/337, as amended by Directive 97/11, and by failing to submit the construction project for a leisure complex at Paterna to the procedure for the assessment of the effects on the environment and, consequently, by failing to apply the provisions of Articles 2(1), 3, 4(2), 8 and 9 of Directive 85/337, as amended by Directive 97/11, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               2.

               The Kingdom of Spain is ordered to pay the costs.

      (1)  OJ C 262 of 23.10.2004.


title: Case T-318/15: Judgment of the General Court of 14 January 2016 — Zitro IP v OHIM (TRIPLE BONUS) (Community trade mark — Application for Community figurative mark TRIPLE BONUS — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and (2) of Regulation (EC) No 207/2009)

text:
               29.2.2016

               EN

               Official Journal of the European Union

               C 78/19

         Judgment of the General Court of 14 January 2016 — Zitro IP v OHIM (TRIPLE BONUS)
   (Case T-318/15) (1)

   ((Community trade mark - Application for Community figurative mark TRIPLE BONUS - Absolute ground for refusal - Descriptive character - Article 7(1)(c) and (2) of Regulation (EC) No 207/2009))
   (2016/C 078/29)
   Language of the case: Spanish

      Parties

      Applicant: Zitro IP Sàrl (Luxembourg, Luxembourg) (represented by: A. Canela Giménez, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Crawcour and J. Crespo Carrillo, acting as Agents)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 April 2015 (Case R 1648/2014-4) concerning an application for registration of the figurative sign TRIPLE BONUS as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Zitro IP Sàrl to pay the costs.

      (1)  OJ C 262, 10.8.2015.


title: Case T-127/03: Action brought on 22 April 2003 by Antoinette Pascucci against Europol

text:
C 158/22                EN                        Official Journal of the European Union                                          5.7.2003
                                                       COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                              Action brought on 22 April 2003 by Antoinette Pascucci
                                                                                against Europol
                                                                                (Case T-127/03)
                         of 30 April 2003
                                                                                (2003/C 158/41)
In Joined Cases T-324/01 and T-110/02: Axions SA and                                          (Language of the case: Dutch)
Christian Belce v Office for Harmonisation in the Internal
        Market (Trade Marks and Designs) (OHIM) (1)
                                                                          An action against Esuropol was brought before the Court of
                                                                          First Instance of the European Communities on 22 April 2003
                                                                          by Antoinette Pascucci, represented by P. de Casparis and
(Community trade mark — Three-dimensional marks —                         M.F. Baltussen.
Brown cigar shape and gold ingot shape — Absolute grounds
for refusal — Distinctive character — Article 7(1)(b) of                  The applicant claims that the Court should:
                    Regulation (EC) No 40/94)
                                                                          1.     Set aside Europol’s dismissal on 13 January 2003 of the
                                                                                complaint lodged by the applicant against the decision of
                                                                                30 September 2002 and at the same time annul the
                          (2003/C 158/40)                                        decision of 30 September 2002;
                                                                          2.     Order Europol to extend the applicant’s contract of
                                                                                employment to 1 July 2005 under the same conditions
                   (Language of the case: German)
                                                                                as obtaining hitherto;
                                                                          3.     Order Europol to pay the costs of the present proceedings.
                                                                          Pleas in law and main arguments
In Joined Cases T-324/01 and T-110/02, Axion SA, established
in Geneva (Switzerland), Christian Belce, resident at Veyrier             The applicant has been working for the defendant since 1 July
(Switzerland), represented by C. Eckhartt, lawyer, v Office for           1999. Her contract of employment expires on 1 July 2003.
Harmonisation in the Internal Market (Trade Marks and                     The applicant requested that her contract be extended for a
Designs) (OHIM) (Agent: G. Schneider): Actions brought                    further four years. The defendant, however, decided to extend
against two decisions of the Third Board of Appeal of the                 her contract for only one year. The applicant has challenged
Office for Harmonisation in the Internal Market (Trade Marks              that decision.
and Designs) of 26 September 2001 (Case R 599/2001-3) and
16 January 2002 (Case R 538/2001-3), relating to the                      In support of her application, the applicant first of all argues
registration as Community trade marks of a three-dimensional              that there has been an infringement of the principle that
shape representing a brown cigar (Case T-324/01) and a three-             reasons must be given.
dimensional shape representing a gold ingot (Case T-110/02),
the Court of First Instance (Fourth Chamber), composed
                                                                          The applicant goes on to argue that the defendant has exceeded
of: V. Tiili, President, P. Mengozzi and M. Vilaras, Judges;
                                                                          the bounds of its discretion. The defendant had adopted
D. Christensen, Administrator, for the Registrar, has given a
                                                                          premisses, policy rules and a plan of action with a view to
judgment on 30 April 2003, in which it:
                                                                          ensuring that contracts would be extended in an unambiguous
                                                                          and transparent manner. In the applicant’s view, the defendant
                                                                          exceeded the bounds of its discretion when applying those
1.     Dismisses the applications;                                        rules.
                                                                          The applicant submits further that there has been a breach of
2.     Orders the applicants to pay the costs.                            the duty of care and an infringement of the principle of
                                                                          equality.
                                                                          The applicant concludes by contending that the defendant has
( 1) OJ C 68, 16.3.2002 and C 131, 1.6.2002.
                                                                          misused its powers. She submits that the defendant allowed
                                                                          itself to be influenced by other, unlawful grounds when it took
                                                                          its decision.


title: Case T-202/03: Judgment of the Court of First Instance of  7 February 2006  — Alecansan v OHIM (Community trade mark — Opposition proceedings — Application for the figurative Community trade mark COMP USA — Earlier national figurative mark COMP USA — Lack of similarity of the goods and services — Rejection of the opposition — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/24

         Judgment of the Court of First Instance of 7 February 2006 — Alecansan v OHIM
   (Case T-202/03) (1)

   (Community trade mark - Opposition proceedings - Application for the figurative Community trade mark COMP USA - Earlier national figurative mark COMP USA - Lack of similarity of the goods and services - Rejection of the opposition - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2006/C 86/46)
   Language of the case: English
   Parties

      Applicant: Alecansan, SL (Madrid, Spain) (represented by: M. Baylos Morales, P. Merino Baylos, J. Arribas García, A. Velázquez Ibáñez and A. Angulo Lafora, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis and A. Folliard-Monguiral, Agents)
   Other party or parties to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: CompUSA Management Co. (Dallas, United States) (represented by: P. Brownlow, Solicitor)
   Action
   brought against the decision of the First Board of Appeal of OHIM of 24 March 2003 (Case R 711/2002-1) relating to the opposition proceedings between Alecansan, SL, and CompUSA Management Co.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay its own costs and those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

               3.

               Orders the intervener to pay its own costs.

      (1)  OJ C 184, 2.8.2003.


title: Case C-95/12: Judgment of the Court (Grand Chamber) of 22 October 2013 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — National legislation providing for a blocking minority of 20 % in respect of the adoption of certain decisions by the shareholders of Volkswagen AG)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/7

         Judgment of the Court (Grand Chamber) of 22 October 2013 — European Commission v Federal Republic of Germany
   (Case C-95/12) (1)

   (Failure of a Member State to fulfil obligations - Judgment of the Court establishing a failure to fulfil obligations - National legislation providing for a blocking minority of 20 % in respect of the adoption of certain decisions by the shareholders of Volkswagen AG)
   2013/C 367/10
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: E. Montaguti and G. Braun, acting as Agents)

      Defendant: Federal Republic of Germany (represented by: T. Henze, J. Schwarze, J. Möller and J. Kemper, acting as Agents)

      Re:

   Failure of a Member State to fulfil its obligations — Failure to comply fully with the judgment of the Court of 23 October 2007 in Case C-112/05 Commission v Germany concerning the infringement of Article 56(1) EC — National legislation requiring, exceptionally, a majority of more than 80 % for the adoption of certain decisions by the shareholders of Volkswagen AG, thereby enabling the Land of Lower Saxony, which holds 20 % of those shares, to block those decisions — Calculation of penalties: payment of both a penalty payment and a lump sum

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 118, 21.4.2012.


title: Case C-651/15 P: Appeal brought on 4 December 2015 by Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV (VECCO), Adolf Krämer GmbH & Co. KG, AgO Argentum GmbH, and other parties against the judgment of the General Court (Fifth Chamber) delivered on 25 September 2015 in Case T-360/13: Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV e.a. v European Commission

text:
               29.2.2016

               EN

               Official Journal of the European Union

               C 78/4

         Appeal brought on 4 December 2015 by Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV (VECCO), Adolf Krämer GmbH & Co. KG, AgO Argentum GmbH, and other parties against the judgment of the General Court (Fifth Chamber) delivered on 25 September 2015 in Case T-360/13: Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV e.a. v European Commission
   (Case C-651/15 P)
   (2016/C 078/05)
   Language of the case: English

      Parties

      Appellants: Verein zur Wahrung von Einsatz und Nutzung von Chromtrioxid und anderen Chrom-VI-verbindungen in der Oberflächentechnik eV (VECCO), Adolf Krämer GmbH & Co. KG, AgO Argentum GmbH, and other parties (represented by: C. Mereu, avocat, J. Beck, solicitor)

      Other parties to the proceedings: European Commission, European Chemicals Agency (ECHA), Assogalvanica, Ecometal, Comité européen des traitements de surfaces (CETS), and other parties

      Form of order sought

   The appellants claims that the Court should:

               —

               Declare the Appeal admissible and well-founded;

               —

               Set aside the General Court's Judgment in Case T-360/13;

               —

               Rule on the substance of the Appellant's Application for Annulment or refer the case back to the General Court for a decision on the substance of the Application for Annulment.

      Pleas in law and main arguments

   In support of the appeal, the Appellant put forward the following arguments:
   First ground of appeal — The General Court made an error in law when holding that Directive 98/24 (1) and Directive 2004/37 (2) are not specific EU legislation within the meaning of Article 58(2) REACH (3) that impose minimum requirements that properly control the risk to human health of the use of chromium trioxide in the surface coating and galvanising industries:
   The General Court's reasoning interprets Article 58(2) REACH in a manner that goes beyond the clear wording and purpose of that provision, as well as the way in which Directive 98/24 and Directive 2004/37 must be interpreted. In sum, the General Court committed an error in law in (i) referring to the exemption under Article 58(2) REACH as one applying to ‘substances’ as opposed to ‘uses’, (ii) separating the three-fold test of Article 58(2) and failing to assess in substance the third part of the test (‘proper control of risks’), and (iii) holding that Directives 98/24 and 2004/37 do not impose minimum requirements to control the risk related to the use of chromium trioxide in the surface coating and galvanising industries, i.e., in particular, by referring to the absence of occupational exposure limit values.
   Second ground of appeal — The Contested Judgment's findings concerning the Commission's discretion are erroneous:
   If the first ground of appeal is upheld, the General Court's finding that the Commission properly exercised its discretion when deciding whether or not to grant the exemption under Article 58(2) REACH is erroneous.
   Third ground of appeal — Failure to properly assess the first plea in law and the second part of the fourth plea in law:
   If the first ground of appeal is upheld, the reasoning in paragraphs 68-69 and 84-85 of the Contested Judgment falls away, and both the first plea and second part of the fourth plea in law before the General Court must be reassessed.

      (1)  Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work (fourteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)

      OJ L 131, p. 11

      (2)  Directive 2004/37/EC of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Sixth individual Directive within the meaning of Article 16(1) of Council Directive 89/391/EEC)

      OJ L 158, p. 50

      (3)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC

      OJ L 396, p. 1


title: Case C-616/11: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 30 November 2011 — T-Mobile Austria GmbH v Verein für Konsumenteninformation

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/14

         Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 30 November 2011 — T-Mobile Austria GmbH v Verein für Konsumenteninformation
   (Case C-616/11)
   2012/C 73/26
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Appellant on a point of law: T-Mobile Austria GmbH

      Respondent on a point of law: Verein für Konsumenteninformation

      Questions referred

               1.

               Is Article 52(3) of Directive 2007/64/EC (1) to be interpreted as meaning that it is also applicable to the contractual relationship between a mobile phone operator, as payee, and that operator’s private customer (the consumer), as payer?

               2.

               Are a cash payment form signed by the payer in person and/or the procedure for ordering transfers based on a signed cash payment form and the agreed procedure for ordering transfers through online banking (telebanking) to be regarded as ‘payment instruments’ within the meaning of Article 4.23 and Article 52(3) of Directive 2007/64/EC?

               3.

               Is Article 52(3) of Directive 2007/64/EC to be interpreted as precluding the application of provisions of national law which prohibit a payee from levying charges in general and from levying different charges for different payment instruments in particular?

      (1)  Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1).


title: Order of the Court of 15 November 2016 in Case E-7/16 — Míla ehf. v EFTA Surveillance Authority (Preliminary objection to admissibility – State aid – Decision to close formal investigation procedure)

text:
               15.6.2017

               EN

               Official Journal of the European Union

               C 189/48

         ORDER OF THE COURT
   of 15 November 2016
   in Case E-7/16
   Míla ehf. v EFTA Surveillance Authority

      (Preliminary objection to admissibility – State aid – Decision to close formal investigation procedure)

   (2017/C 189/12)
   In Case E-7/16, Míla ehf. v EFTA Surveillance Authority – APPLICATION under Article 36(2) of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice for the annulment of Decision No 061/16/COL of 16 March 2016 of the EFTA Surveillance Authority to close the formal investigation into alleged State aid through the lease of an optical fibre previously operated on behalf of NATO, the Court, composed of, Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Páll Hreinsson, Judges, gave order of 15 November 2016, the operative part of which is as follows:

               1.

               The application is dismissed as inadmissible.

               2.

               The applicant is to bear the costs of the proceedings.


title: Case C-395/13: Judgment of the Court (Fifth Chamber) of 6 November 2014  — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Urban waste water — Directive 91/271/EEC — Articles 3 and 4 — Obligation to collect — Obligation to treat)

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/9

         Judgment of the Court (Fifth Chamber) of 6 November 2014 — European Commission v Kingdom of Belgium
   (Case C-395/13) (1)

   ((Failure of a Member State to fulfil obligations - Urban waste water - Directive 91/271/EEC - Articles 3 and 4 - Obligation to collect - Obligation to treat))
   (2015/C 007/12)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: O. Beynet and E. Manhaeve, acting as Agents)

      Defendant: Kingdom of Belgium (represented by: T. Materne and J.-C. Halleux, acting as Agents, assisted by E. Gillet and A. Lepièce, avocats)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by not ensuring the collection and treatment of urban waste waters of the agglomerations of Aywaille, Baelen, Blegny, Chastre, Grez-Doiceau, Jodoigne, Lasne, Obourg, Oreye, Orp, Raeren, Sart-Dames-Avelines, Soiron, Sombreffe and Yvoir-Anhée, and by not ensuring the treatment of urban waste waters of the agglomerations of Bassenge, Chaumont-Gistoux, Chièvres, Crisnée, Dalhem, Dinant, Écaussinnes, Estinnes, Feluy-Arquennes, Fexhe-Slins, Fosses-la-Ville, Godarville, Hannut, Havré, Jurbise, Le Rœulx, Leuze, Lillois-Witterzée, Profondeville, Rotheux-Neuville, Saint-Georges-sur-Meuse, Saint-Hubert, Sirault, Sprimont, Villers-la-Ville, Villers-le-Bouillet, Virginal-Hennuyères, Walcourt, Welkenraedt, Wépion, Wiers, Gaurain-Ramecroix and Hélécine, the Kingdom of Belgium has failed to fulfil its obligations under Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment;

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 274, 21.9.2013.


title: Case T-198/06: Order of the Court of First Instance (Fifth Chamber) of 26 February 2007 — Rathscheck Schiefer und Dach-Systeme and Others v Commission

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/56

         Order of the Court of First Instance (Fifth Chamber) of 26 February 2007 — Rathscheck Schiefer und Dach-Systeme and Others v Commission
   (Case T-198/06) (1)

   (2007/C 95/112)

      Language of the case: German

   The President of the Court of First Instance (Fifth Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 237, 30.9.2006.


title: Case T-5/16: Action brought on 4 January 2016 — Gregis v EUIPO — DM9 Automobili (ATS)

text:
               4.7.2016

               EN

               Official Journal of the European Union

               C 243/33

         Action brought on 4 January 2016 — Gregis v EUIPO — DM9 Automobili (ATS)
   (Case T-5/16)
   (2016/C 243/36)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Gian Luca Gregis (Adeje, Spain) (represented by: M. Bartolucci, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: DM9 Automobili Srl (Borgomanero, Italy)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: European Union figurative mark containing the word element ‘ATS’ — Community trade mark No 9 799 719

      Procedure before EUIPO: Proceedings relating to the registration of a transfer

      Contested decision: Decision of the First Board of Appeal of EUIPO of 30 October 2015 in Case R 588/2015-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               cancel Transfer T8391925 of 14 April 2014.

      Pleas in law

               —

               Infringement of Article 17 of Regulation No 207/2009;

               —

               Infringement of Rule 31 of Regulation No 2868/95;

               —

               Infringement of Rule 84(3)(b) of Regulation No 2868/95.


title: Case T-187/04: Action brought on 19 May 2004 by Pascal Hallez against the Commission of the European Communities

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/19

         Action brought on 19 May 2004 by Pascal Hallez against the Commission of the European Communities
   (Case T-187/04)
   (2004/C 201/41)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 May 2004 by Pascal Hallez, residing in Genappe (Belgium), represented by Carlos Mourato, lawyer.
   The applicant claims that the Court should:

               —

               Annul the decision of 22 July 2003 of the Appeal Assessor concerning the applicant's career development report for the period 1 July 2001 to 31 December 2002;

               —

               Annul the appointing authority's implied decision of 20 February 2004 giving a negative reply to the applicant's complaint;

               —

               Order the defendant to pay the costs of the case and also the essential costs incurred for the purposes of the proceedings, in particular the costs of domiciliation, travel and lodging, and also lawyers' fees.

         Pleas in law and main arguments
   In support of his action, the applicant claims first of all that there has been a series of breaches of the assessment procedure and of the provisions for the implementation of Article 43 of the Staff Regulations, namely:

               —

               the fact that a different official should have been his assessor, since it was the official who was his hierarchical superior and not the assessor who appears in the contested report,

               —

               failure to consult his previous superiors,

               —

               the belated nature of the second dialogue and also of the opinion of the Appeal Assessor,

               —

               the allegedly unlawful appointment of the President of the Joint Assessment Committee.

         The applicant also claims that there has been a breach of the principle of the independence of internal auditors, on the ground that one of the members of the Joint Assessment Committee was from a Directorate-General audited by the applicant and that the applicant's Appeal Assessor was the Secretary-General of the Commission, who was himself liable to be audited. The applicant claims that in the light of that situation, it is the Vice-President responsible for the reform of the Commission who should have been his Appeal Assessor. Last, the applicant relies on breach of the obligation to state reasons and of the principle of equal treatment and also on manifest errors of assessment by the assessor.


title: Case T-59/08: Judgment of the General Court of 7 December 2010 — Nute Partecipazioni and La Perla v OHIM — Worldgem Brands (NIMEI LA PERLA MODERN CLASSIC) (Community trade mark — Invalidity proceedings — Community word mark NIMEI LA PERLA MODERN CLASSIC — Earlier national figurative marks la PERLA — Relative ground for refusal — Injury to reputation — Article 8(5) and Article 52(1)(a) of Regulation (EC) No 40/94 (now Article 8(5) and Article 53(1)(a) of Regulation (EC) No 207/2009))

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/34

         Judgment of the General Court of 7 December 2010 — Nute Partecipazioni and La Perla v OHIM — Worldgem Brands (NIMEI LA PERLA MODERN CLASSIC)
   (Case T-59/08) (1)

   (Community trade mark - Invalidity proceedings - Community word mark NIMEI LA PERLA MODERN CLASSIC - Earlier national figurative marks la PERLA - Relative ground for refusal - Injury to reputation - Article 8(5) and Article 52(1)(a) of Regulation (EC) No 40/94 (now Article 8(5) and Article 53(1)(a) of Regulation (EC) No 207/2009))
   2011/C 30/59
   Language of the case: Italian

      Parties

      Applicants: Nute Partecipazioni SpA, formerly Gruppo La Perla SpA (Bologna, Italy); and La Perla Srl (Bologna) (represented by: R. Morresi and A. Dal Ferro, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: L. Rampini, and subsequently by O. Montalto, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Worldgem Brands Srl, formerly Worldgem Brands — Gestão e Investimentos Lda (Creazzo, Italy) (represented by: V. Bilardo, M. Mazzitelli and C. Bacchini, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 19 November 2007 (Case R 537/2004-2) concerning invalidity proceedings between Nute Partecipazioni SpA and Worldgem Brands Srl.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 November 2007 (Case R 537/2004-2) in so far as it dismissed the application for a declaration of invalidity and ordered Nute Partecipazioni SpA to bear its own costs;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders OHIM to bear its own costs together with 90 % of the costs of Nute Partecipazioni and of La Perla Srl before the Court and all the costs of Nute Partecipazioni before the Board of Appeal;

               4.

               Orders Nute Partecipazioni and La Perla to bear 10 % of their own costs before the Court;

               5.

               Orders Worldgem Brands Srl to bear its own costs.

      (1)  OJ C 92, 12.4.2008.