title: Joined Cases C-97/13 and C-241/13: Order of the Court (Grand Chamber) of 3 February 2014 (requests for a preliminary ruling from the Tribunalul Sibiu and the Curtea de Apel Bucureşti — Romania) — Silvia Georgiana Câmpean v Administraţia Finanţelor Publice a Municipiului Mediaş, Administraţia Fondului pentru Mediu (Case C-97/13), Administraţia Finanţelor Publice a Municipiului Alexandria v George Ciocoiu (Case C-214/13) (Reference for a preliminary ruling — Internal taxation — Article 110 TFEU — Pollution tax charged on first registration of motor vehicles — Neutrality of tax between imported second-hand motor vehicles and similar vehicles already on the domestic market)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/16

         Order of the Court (Grand Chamber) of 3 February 2014 (requests for a preliminary ruling from the Tribunalul Sibiu and the Curtea de Apel Bucureşti — Romania) — Silvia Georgiana Câmpean v Administraţia Finanţelor Publice a Municipiului Mediaş, Administraţia Fondului pentru Mediu (Case C-97/13), Administraţia Finanţelor Publice a Municipiului Alexandria v George Ciocoiu (Case C-214/13)
   (Joined Cases C-97/13 and C-241/13) (1)

   ((Reference for a preliminary ruling - Internal taxation - Article 110 TFEU - Pollution tax charged on first registration of motor vehicles - Neutrality of tax between imported second-hand motor vehicles and similar vehicles already on the domestic market))
   2014/C 175/19
   Language of the case: Romanian

      Referring courts

   Tribunalul Sibiu, Curtea de Apel Bucureşti

      Parties to the main proceedings

      Applicants: Silvia Georgiana Câmpean (Case C-97/13), Administraţia Finanţelor Publice a Municipiului Alexandria (Case C-214/13)

      Defendants: Administraţia Finanţelor Publice a Municipiului Mediaş, Administraţia Fondului pentru Mediu (Case C-97/13), George Ciocoiu (Case C-214/13)

      Re:

   Request for a preliminary ruling — Tribunalul Sibiu, Curtea de Apel Bucureşti — Tax on pollutant emissions levied on motor vehicles on their first registration or when a right of ownership is first recorded — Exemption for motor vehicles subject to earlier taxes — Possibility of recovering through the courts the taxes to which those vehicles have been subject — Possible discouragement of the putting into circulation of second-hand vehicles purchased in other Member States — Compatibility of the national legislation with Article 110 TFEU

      Operative part of the order

   Article 110 TFEU must be interpreted as precluding a system of taxation, such as that introduced and then delimited by the national legislation at issue in the disputes in the main proceedings, by which a Member State levies a pollution tax on motor vehicles which is structured in such a way as to discourage the putting into circulation in that Member State of second-hand vehicles purchased in other Member States, but without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market.

      (1)  OJ C 129, 4.5.2013.

      OJ C 189, 29.6.2013.


title: Case T-405/11: Action brought on 29 July 2011 — Axa Mediterranean v Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/40

         Action brought on 29 July 2011 — Axa Mediterranean v Commission
   (Case T-405/11)
   2011/C 282/75
   Language of the case: Spanish

      Parties

      Applicant: Axa Mediterranean Holding, SA (Palma de Mallorca, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and M. Muñoz de Juan, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Admit and uphold the request for the taking of evidence;

               —

               admit and uphold the grounds for annulment set out in this application;

               —

               annul Article 1(1) of the Decision insofar as it declares that Article 12(5) of the Spanish Law on corporation tax comprises elements of State aid;

               —

               alternatively, annul Article 1(1) of the Decision insofar as it declares that Article 12(5) of the Spanish Law on corporation tax comprises elements of State aid when applied to shareholding acquisitions that involve acquisition of control;

               —

               alternatively, annul Article 4 of the Decision insofar as it applies the recovery order to transactions concluded prior to publication in the OJEU of the final Decision to which this action refers;

               —

               alternatively, annul Article 1(1) and, alternatively, Article 4 of the Decision insofar as it refers to transactions carried out in Mexico and Turkey, and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The present action is directed against Commission Decision C(2010) 9566, of 12 January 2011, on the tax amortisation of financial goodwill for foreign shareholding acquisitions.
   The pleas and main arguments are those already put forward in Case T-399/11, Banco de Santander and Santusa Holding v Commission.


title: Case T-637/15: Judgment of the General Court of 31 May 2017 — Alma-The Soul of Italian Wine v EUIPO — Miguel Torres (SOTTO IL SOLE ITALIANO SOTTO il SOLE) (EU trade mark — Opposition proceedings — Application for the EU figurative mark SOTTO IL SOLE ITALIANO SOTTO il SOLE — Earlier EU word mark VIÑA SOL — Relative ground for refusal — Detriment to distinctive character — No similarity between the signs — Article 8(5) of Regulation (EC) No 207/2009)

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/22

         Judgment of the General Court of 31 May 2017 — Alma-The Soul of Italian Wine v EUIPO — Miguel Torres (SOTTO IL SOLE ITALIANO SOTTO il SOLE)
   (Case T-637/15) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU figurative mark SOTTO IL SOLE ITALIANO SOTTO il SOLE - Earlier EU word mark VIÑA SOL - Relative ground for refusal - Detriment to distinctive character - No similarity between the signs - Article 8(5) of Regulation (EC) No 207/2009))
   (2017/C 231/26)
   Language of the case: English

      Parties

      Applicant: Alma-The Soul of Italian Wine LLLP (Coral Gables, Florida, United States) (represented by: F. Terrano, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: J. Crespo Carrillo, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Miguel Torres, SA (Vilafranca del Penedès, Spain) (represented by: J. Güell Serra, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 3 September 2015 (Case R 356/2015-2), relating to opposition proceedings between Miguel Torres and Alma-The Soul of Italian Wine.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 September 2015 (Case R 356/2015-2);

               2.

               Orders EUIPO to bear its own costs and to pay those incurred by Alma-The Soul of Italian Wine LLLP;

               3.

               Orders Miguel Torres, SA to bear its own costs.

      (1)  OJ C 27, 25.1.2016.


title: Case T-269/13 P: Judgment of the General Court of 5 June 2014  — Brune v Commission (Appeal — Civil service — Officials — Recruitment — Open competition — Non-inclusion on the reserve list — New decision of the Commission adopted following annulment by the Civil Service Tribunal — No participation in the oral test)

text:
               21.7.2014

               EN

               Official Journal of the European Union

               C 235/17

         Judgment of the General Court of 5 June 2014 — Brune v Commission
   (Case T-269/13 P) (1)

   ((Appeal - Civil service - Officials - Recruitment - Open competition - Non-inclusion on the reserve list - New decision of the Commission adopted following annulment by the Civil Service Tribunal - No participation in the oral test))
   2014/C 235/22
   Language of the case: German

      Parties

      Appellant: Markus Brune (Bonn, Germany) (represented by: H. Mannes, lawyer)

      Other party to the proceedings: European Commission (represented by: J. Currall and B. Eggers, acting as Agents)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 21 March 2013 in Case F-94/11 Brune v Commission (not yet published in the ECR), seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Markus Brune to bear his own costs as well as those incurred by the European Commission in the present proceedings.

      (1)  OJ C 207, 20.7.2013.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 28 March 1996 in Case C-299/94 (reference for a preliminary ruling from the High Court of Ireland): Anglo Irish Beef Processors International and Others v. Minister for Agriculture, Food and Forestry (Differentiated export refunds - Force majeure - Additional security - Release of security - Resolution of the UN Security Council)

text:
22 . 6 . 96           EN                   Official Journal of the European Communities                                  No C 180/ 11
     obtaining a supply of services, which are necessary for                          JUDGMENT OF THE COURT
     the accomplishment of the Communities ' task, and the                                     ( Sixth Chamber )
     amount ofwhich exceeds the threshold laid down by the
     legislation in question.                                                                of 28 March 1996
                                                                      in Case C-299/94 ( reference for a preliminary ruling from
                                                                      the High Court of Ireland ): Anglo Irish Beef Processors
(M OJ No C 233 , 20 . 8 . 1994 .
                                                                      International and Others v. Minister for Agriculture, Food
                                                                                and Forestry (')
                                                                      (Differentiated export refunds — Force majeure —
                                                                      Additional security — Release of security — Resolution of
                                                                                the UN Security Council)
                                                                                ( 96/C 180/22 )
               JUDGMENT OF THE COURT
                        ( First Chamber)
                                                                                (Language of the case: English)
                      of 28 March 1996
in Case C-272/94 ( reference for a preliminary ruling from            In Case C-299/94 : reference to the Court under Article 177
the Tribunal Correctionnel, Arlon ( Belgium )): criminal              of the EC Treaty from the High Court of Ireland for a
proceedings before that court against Michel Guiot and                preliminary ruling in the proceedings pending before that
                         Climatec SA ( 1 )                            court between Anglo Irish Beef Processors International and
 (Employer's contributions — Loyalty stamps —                         Others and Minister for Agriculture , Food and Forestry —
    Bad-weather stamps — Freedom to provide services)                 on the interpretation and validity of Council Regulation
                          ( 96/C 180/21 )                              ( EEC ) No 2340/90 of 8 August 1990 preventing trade by the
                                                                      Community as regards Iraq and Kuwait ( OJ No L 213 ,
                                                                       1990, p . 1 ) and Commission Regulation ( EEC ) No 3665/87
                (Language of the case: French)                        of 27 November 1987 laying down common detailed rules
                                                                      for the application of the system of export refunds on
                                                                      agricultural products ( OJNo L 351 , 1987, p . 1 ), as amended
 (Provisional translation; the definitive translation will be          by Commission Regulation ( EEC ) No 354/90 of 9 February
          published in the European Court Reports)                     1990 ( OJ No L 38 , 1990, p . 34 ), the Court ( Sixth Chamber),
                                                                      composed of C. N. Kakouris, President of the Chamber, G.
                                                                       Hirsch, G. F. Mancini , F. A. Schockweiler and P. J. G.
 In Case C-272/94 : reference to the Court under Article 177           Kapteyn ( Rapporteur ), Judges ; A. La Pergola ,
 of the EC Treaty from the Tribunal Correctionnel ( Criminal           Advocate-General ; L. Hewlett, Administrator, for the
 Court ), Arlon, for a preliminary ruling in the criminal              Registrar, gave a judgment on 28 March 1 996 , the operative
 proceedings before that court against Michel Guiot and                part of which is as follows :
 Climatec SA, as employer liable at civil law — on the
 interpretation of Articles 59 and 60 of the EC Treaty — the
 Court ( First Chamber ), composed of D. A. O. Edward                   1 . Article 33 (5) of Commission Regulation (EEC)
 ( Rapporteur ), President of the Chamber, P. Jann and L.                   No 3665/87 of 27 November 1987 laying down
 Sevôn, Judges; G. Tesauro, Advocate-General; H. A. Riihl,                  common detailed rules for the application of the system
 Principal Administrator, for the Registrar, gave a judgment                of export refunds on agricultural products, as amended
 on 28 March 1996 , the operative part of which is as                       by Commission Regulation (EEC) No 354/90 of
 follows :
                                                                            9 February 1990, is to be interpreted as meaning that
                                                                            where, owing to force majeure , goods do not reach their
                                                                            intended country of destination but are exported to
 Articles 59 and 60 of the EC Treaty preclude a Member                      other non-member countries which qualify for a lower
 State from requiring an undertaking established in another                 export refund or none at all, the security forfeited is to be
 Member State and temporarily carrying out works in the                     equal to the difference between the amount ofthe refund
 first-mentioned Member State to pay employers                              paid in advance, and that of the refund actually due.
 contributions in respect of loyalty stamps and bad-weather
 stamps with respect to workers assigned to carry out those
 works, where that undertaking is already liable for
 comparable contributions, with respect to the same workers             2 . Consideration ofRegulation (EEC) No 3665/87 has not
 and for the same period of work, in the State where it is                  disclosed any factor capable of affecting its validity.
 established.
                                                                        (M OJ No C 386 , 31 . 12 . 1994 .
 (M OJ No C 316 , 12 . 11 . 1994 .


title: Case T-86/12: Action brought on 21 February 2012 — Robert Group v OHIM — Hardford (Pierre Robert)

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/32

         Action brought on 21 February 2012 — Robert Group v OHIM — Hardford (Pierre Robert)
   (Case T-86/12)
   2012/C 118/53
   Language in which the application was lodged: English

      Parties

      Applicant: Pierre Robert Group AS (Oslo, Norway) (represented by: E. Ullberg and M. Plogell, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Hardford AB (Limhamn, Sweden)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 December 2011 in case R 2463/2010-1, and consequently order OHIM to evaluate the proof of existence, validity and scope of the earlier mark that the applicant has submitted;

               —

               Or, alternatively, alter the decision of the First Board of Appeal by a decision of its own and refuse the registration of Community trade mark No 8541849 ‘Pierre Robert’; and

               —

               Order the defendant to pay the costs of the proceedings, including those incurred in the proceedings before the Opposition Division and the First Board of Appeal of OHIM.

      Pleas in law and main arguments

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

      Community trade mark concerned: The word mark ‘Pierre Robert’, for goods and services in classes 3, 5 and 44 — Community trade mark application No 8541849

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

      Mark or sign cited in opposition: Swedish trade mark registration No 166274 of the figurative mark ‘Pierre Robert’, for goods in classes 3, 5 and 25

      Decision of the Opposition Division: Rejected the opposition in its entirety

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Rule 50(1) of Commission Regulation No 2868/95 and Articles 76, 8 and 8(2)(c) of Council Regulation No 207/2009, as the Board of Appeal: (i) has neglected its right to examine the facts of its own motion, and take into consideration facts that are apparently likely to affect the outcome of the opposition; (ii) erred in law when it did not consider that ‘Pierre Robert’ is a well known mark; (iii) failed when not considering the evidence, Annex 1, which was submitted in connection with the filing of the opposition; and (iv) failed when not accepting the certificate from the Swedish Patent and Registration Office filed before the decision of the opposition division.


title: Case T-235/15: Action brought on 15 May 2015 — Pari Pharma/EMA

text:
               6.7.2015

               EN

               Official Journal of the European Union

               C 221/26

         Action brought on 15 May 2015 — Pari Pharma/EMA
   (Case T-235/15)
   (2015/C 221/35)
   Language of the case: English

      Parties

      Applicant: Pari Pharma GmbH (Starnberg, Germany) (represented by: M. Epping, and W. Rehmann, lawyers)

      Defendant: European Medicines Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision ASK-11351 (Vantobra) of the European Medicines Agency (‘EMA’) of 24 April 2015, insofar as it grants a third party access to the CHMP Assessment Report for VANTOBRA on similarity with Cayston and TOBI Podhaler (EMA/CHMP/702525/2014), and the CHMP Assessment Report on clinical superiority to TOBI Podhaler (EMA/CHMP/778270/2014), pursuant to Regulation (EC) No 1049/2001 (1);

               —

               order the EMA not to disclose the documents referred to in the first head of claim;

               —

               in the alternative, annul the decision ASK-11351 (Vantobra) of the EMA of 24 April 2015, insofar as it grants a third party access to (i) the CHMP Assessment Report on clinical superiority to TOBI Podhaler, (EMA/CHMP/778270/2014), without additional redactions on pages 9 (Superior Respiratory Tolerability of Vantobra over Tobi Podhaler), pages 11 to 12 and 14 (Extrapolation of tolerability from TOBI to Vantobra), pages 17 to 19 (Claimant’s position Q.1 and assessment of the response) and pages 19 to 23 (Claimant’s position Q.2, Assessment of the response, 3. Conclusion and Recommendation), as set out in Exhibit A 1, and (ii) the CHMP Assessment Report for VANTOBRA on similarity with Cayston and TOBI Podhaler, (EMA/CHMP/702525/2014), without additional redactions on pages 9 to 10, Section 2.3 (Therapeutic indication, 1) Data from field survey) and pages 11 to 12, Section 2.3 (Therapeutic indication, 2) Interview of physicians in CF centers), as set out in Exhibit A 2, and order the EMA not to disclose the aforementioned documents without the redactions arising from Exhibit A 1 and Exhibit A2; and

               —

               order the EMA to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on one plea in law.
   The applicant submits that the decision of the EMA violates Regulation (EC) No 1049/2001, and that it thus violates the applicant’s fundamental rights and freedoms as regards private life and confidentiality under article 7 of the Charter of Fundamental Rights of the European Union (the ‘Charter’), article 8 of the Convention for the protection of Human Rights and Fundamental Freedoms of 4 November 1950 and article 339 TFEU, its freedom to conduct a business under article 16 of the Charter and its property right with regard to intellectual property, article 17(2) of the Charter. The applicant submits that (i) disclosure would allow any competitor to simply use the data and information provided by the applicant for the purpose of obtaining marketing authorisation for its own tobramycin product without any additional investment, thereby undermining the applicant’s commercial interest, and (ii) there is no overriding public interest in the disclosure of these documents.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


title: Case T-42/08: Action brought on 24 January 2008 — Shetland Islands Council v Commission

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/35

         Action brought on 24 January 2008 — Shetland Islands Council v Commission
   (Case T-42/08)
   (2008/C 92/71)
   Language of the case: English
   Parties

      Applicant: Shetland Islands Council (represented by: E. Whiteford, Barrister, R. Murray, Solicitor and R. Thompson, QC)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annulment of Articles 1(2), 3, 4 and 5 of the decision; and

               —

               the costs of this application.

         Pleas in law and main arguments
   The applicant is a public authority that made payments to the fisheries sector under the scope of two general aid measures, named ‘Aid to Fish Catching and Processing Industry’ and ‘Aid to the Fish Farming Industry’ consisting of different types of aid schemes. The Commission found that the aid which the United Kingdom implemented on the basis of the ‘Fishing Vessel Modernisation Scheme’ was incompatible with the common market, in so far as it concerned aid granted for the modernisation projects concerning capacity in terms of tonnage or power.
   By means of its application, the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C 37/2006 (ex NN 91/2005) of 13 November 2007 concerning the Fishing Vessel Modernisation Scheme implemented in the United Kingdom. In particular, the applicant seeks annulment of Article 1(2), 3, 4, and 5 of the contested decision on two grounds:

               (1)

               The Commission allegedly erred in law in finding that payments for replacement or improvement of engines that do not affect the gross tonnage or power of any vessel ‘concern capacity in terms of tonnage or power’ within the meaning of Article 9(1)(c)(i) of Regulation (EC) No 2792/1999 (1), and are thus incompatible with the common market;

               (2)

               The Commission erred in law in finding that recovery of payments would be compatible with:

                           (a)

                           Article 14(1) of Council Regulation (EC) No 659/1999 (2);

                           (b)

                           the general principles of legal certainty and the protection of legitimate expectations and of equality of treatment.

      (1)  Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ L 337, p. 10).

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


title: Case C-372/10: Judgment of the Court (Fourth Chamber) of 16 February 2012 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Pak-Holdco sp. z o.o. v Dyrektor Izby Skarbowej w Poznaniu, (Taxation — Indirect taxes on the raising of capital — Capital duty levied on capital companies — Obligation on a Member State to take account of directives which were no longer in force at the time of that State’s accession — Exclusion, from the amount on which capital duty is charged, of the amount of the assets belonging to the capital company which are allocated to the increase in capital and which have already been subjected to capital duty)

text:
               31.3.2012

               EN

               Official Journal of the European Union

               C 98/7

         Judgment of the Court (Fourth Chamber) of 16 February 2012 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Pak-Holdco sp. z o.o. v Dyrektor Izby Skarbowej w Poznaniu,
   (Case C-372/10) (1)

   (Taxation - Indirect taxes on the raising of capital - Capital duty levied on capital companies - Obligation on a Member State to take account of directives which were no longer in force at the time of that State’s accession - Exclusion, from the amount on which capital duty is charged, of the amount of the assets belonging to the capital company which are allocated to the increase in capital and which have already been subjected to capital duty)
   2012/C 98/08
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Appellant: Pak-Holdco sp. z o.o.

      Respondent: Dyrektor Izby Skarbowej w Poznaniu,

      Re:

   Reference for a preliminary ruling — Naczelny Sąd Administracyjny — Interpretation of Articles 5(3), first indent, and 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) and of Council Directive 73/79/EEC of 9 April 1973 (OJ 1973 L 103, p. 13) and Council Directive 73/80/EEC of 9 April 1973 (OJ 1973 L 103, p. 15) amending Directive 69/335/EEC — Capital duty levied on capital companies — Obligation on a Member State to take account of directives which were no longer in force at the time of that State’s accession

      Operative part of the judgment

               1.

               In the case of a State such as the Republic of Poland, which acceded to the European Union on 1 May 2004, in the absence of derogating provisions in the Act of Accession of that State to the European Union or in any other European Union document, Article 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted to mean that the mandatory exemption provided for in that provision applies only to those transactions coming within the scope of that directive, as amended, which, on 1 July 1984, were exempted, in that State, from capital duty or were subject to that duty at a reduced rate of 0,50% or less.

               2.

               The first indent of Article 5(3) of Directive 69/335, which excludes ‘the amount of the assets belonging to the capital company which are allocated to the increase in capital and which have already been subjected to capital duty’ from the amount on which duty is charged, must be interpreted to mean that it applies irrespective of whether the assets in question are assets of the company which has had an increase in capital or assets coming from another company which have increased that capital.

      (1)  OJ C 288, 23.10.2010.


title: Case T-349/05: Action brought on  13 September 2005  — Ott and Others v Commission

text:
               10.12.2005

               EN

               Official Journal of the European Union

               C 315/12

         Action brought on 13 September 2005 — Ott and Others v Commission
   (Case T-349/05)
   (2005/C 315/22)
   Language of the case: French
   Parties

      Applicant(s): Martial Ott (Oberanven, Luxembourg), Fernando Lopez Tola (Luxembourg, Grand Duchy of Luxembourg), Francis Weiler (Itzig, Luxembourg) (represented by: G. Bounéou and F. Frabetti, lawyers)

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

               —

               annul the list of officials promoted in 2004 (1), since that list does not include the names of the applicants, and, as an incidental plea, that the Court should annul the travaux preparatoires of that decision;

               —

               in the alternative, annul the allocation of promotion points for 2004, in particular, further to the recommendations made by the Promotion Committees;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The pleas relied on by the applicants are identical to those relied on by the applicants in Case T-327/05.

      (1)  List published in Administrative Notice No 130, 30.11.2004.


title: Case C-249/00: Action brought on 22 June 2000 by the Commission of the European Communities against the Hellenic Republic

text:
C 247/22               EN                   Official Journal of the European Communities                                       26.8.2000
meaning of Article 7 of First Council Directive 89/104/EEC (1)               (e)   must the remuneration be related to the potential
of 21 December 1988 to approximate the laws of the Member                          numbers of listeners or viewers, or to actual num-
States relating to trade marks, has to adduce evidence and, in                     bers, or partly to the former and partly to the latter
appropriate cases, prove that the goods marketed by him have                       and, if so, in what proportion?
already been put on the market in the European Economic
Area for the first time by the trade-mark owner himself or
                                                                       (III) If the answer to Question I is in the negative, does that
with his consent?
                                                                             mean that the Member States are entirely free to lay down
                                                                             the yardsticks for determining equitable remuneration?
                                                                             Or is that freedom subject to certain limits and, if so,
(1) OJ L 40, p. 1.
                                                                             what are those limits?
                                                                       (1) OJ 1992, L 346, p. 61.
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden, by judgment of that court of 9 June 2000,
in the case of Stichting Ter Exploitatie Van Naburige
Rechten (SENA) and Nederlandse Omroep Stichting
                              (NOS)
                                                                       Action brought on 22 June 2000 by the Commission of
                                                                       the European Communities against the Hellenic Republic
                         (Case C-245/00)
                                                                                (Case C-249/00)
                         (2000/C 247/30)
                                                                                (2000/C 247/31)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 9 June               An action against the Hellenic Republic was brought before
2000, which was received at the Court Registry on 19 June              the Court of Justice of the European Communities on 22 June
2000, for a preliminary ruling in the case of Stichting Ter            2000 by the Commission of the European Communities,
Exploitatie Van Naburige Rechten (SENA) and Nederlandse                represented by Maria Patakia, of its Legal Service, and Enrico
Omroep Stichting (NOS), on the following questions:                    Traversa, Legal Adviser in its Legal Service, with an address for
                                                                       service in Luxembourg at the office of Carlos Gómez de la
(I)  Is the term ‘equitable remuneration’ used in Article 8(2)         Cruz, of its Legal Service, Wagner Centre, Kirchberg.
     of Council directive 92/100/EEC(1) of 19 November
     1992 a Community concept which must be interpreted
     and applied in the same way in all the Member States of           The Commission claims that the Court should:
     the European Community?
                                                                       —     declare that, by reserving exclusively for Greek citizens
(II) If so,                                                                  the benefit of applying a reduced tax rate where real
                                                                             property is purchased with currency brought into Greece
     (a)    what are the yardsticks for determining the amount               from abroad, the Hellenic Republic has failed to fulfil its
            of such equitable remuneration?                                  obligations under Articles 12, 39, 43 and 56 EC;
     (b) should guidance be sought from the levels of                  —     order the Hellenic Republic to pay the costs.
            remuneration which were agreed or were customary
            as between the organisations concerned prior to
            entry into force of the directive in the relevant
            Member State?                                              Pleas in law and main arguments
     (c)    must or may regard be had to the expectations of           The Commission considers that Law No 1521/1950, as
            the persons concerned at the time of enactment of          amended by Law No 2459/1997, which maintains in force the
            the national legislation implementing the directive        advantage of applying a reduced tax rate so far as concerns
            in regard to the amount of remuneration?                   Greek nationals, discriminates on grounds of nationality,
                                                                       contrary to Articles 12, 39 and 43 EC (ex Articles 6, 48 and
     (d) should guidance be sought from the levels of                  52 of the Treaty). While the Commission respects the right of
            remuneration for broadcasts paid under music copy-         the Greek State to choose freely the system applied by it as
            right by broadcasters?                                     regards the tax on the transfer of real property, it also considers
 ---pagebreak--- 26.8.2000              EN                     Official Journal of the European Communities                                           C 247/23
that the particular legislation constitutes discrimination incom-        ‘Does Regulation 2200/96 (1) (and did Regulation 1035/72 (2)
patible with the Treaty in the field of the free movement of             when it was in force) give rise to a legal duty resting upon
capital (Article 56 EC, ex Article 73b).                                 persons who trade in a fruit or a vegetable within the
                                                                         Community to comply with the requirements as regards
                                                                         variety name laid down by a quality standard which is
                                                                         applicable to that fruit or vegetable, which a national court
                                                                         should enforce in civil proceedings brought at the suit of a
                                                                         person who is a substantial grower within the Community of
                                                                         the fruit or vegetable concerned?’
Reference for a preliminary ruling from the Conseil Mixte
d’Appel d’Expression Française de l’Ordre des Médecins
Vétérinaires by a decision of 10 June 2000 in the case of                (1) of the Council of 28 October 1996 on the common organization
                                                                             of the market in fruit and vegetables (OJ L 297, 21.11.1996, p. 1).
                 Dr Jean-Michel Vandeweerd
                                                                         (2) OJ L 118, 20.5.1972, p. 1.
                         (Case C-252/00)
                         (2000/C 247/32)
Reference has been made to the Court of Justice of the
European Communities by a decision of the Conseil Mixte
d’Appel d’Expression Française de l’Ordre des Médecins Vétéri-
naires (French language Joint Appeal Board of the Association
of Veterinary Surgeons, Belgium) of 10 June 2000, which was
received at the Court Registry on 26 June 2000, for a
preliminary ruling in the case of Dr Jean-Michel Vandeweerd.
The Conseil Mixte d’Appel d’Expression Française de l’Ordre
des Médecins Vétérinaires asks the Court of Justice to rule on           Reference for a preliminary ruling by the Tribunale di
the following question:                                                  Trento — Special Section — by order of that court of
                                                                         6 June 2000 in the case of Grundig Italiana SpA against
                                                                                Ministero delle Finanze
On a proper construction, does Article 85 of the EC Treaty
prohibit the ban on advertising laid down by the Upper
Council of the Association of Veterinary Surgeons in the 1983                                       (Case C-255/00)
Code of Conduct, in particular in so far as the Code does not
allow objective information to be given in a professional
context about an artificial insemination centre for horses run                                      (2000/C 247/34)
by a veterinary surgeon?
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Tribunale di Trento
                                                                         (District Court, Trento) of 6 June 2000, received at the Court
                                                                         Registry on 26 June 2000, for a preliminary ruling in the case
                                                                         of Grundig Italiana SpA against Ministero delle Finanze
                                                                         (Ministry of Finance) on the following question:
Reference for a preliminary ruling by the Court of Appeal
(England & Wales) (Civil Division, by order of that court
of 14 June 2000, in the case of 1) Antonio Muñoz y Cia                  ‘Is a national provision, namely the last part of Article 29(1)
SA and 2) Superior Fruiticola SA against 1) Frumar Ltd                   of Law No 428 of 29 December 1990, compatible with
          and 2) Redbridge Produce Marketing Ltd                         Community law and in particular with the often stated
                                                                         principle of effectiveness (inter alia, Case C-343/1996 Dilex-
                                                                         port, Case C-260/1996 Spac, Case C-231/1996 Edis, Case
                         (Case C-253/00)
                                                                         C-228/1996 Aprile, Case C-261/1995 Palmisani) where it lays
                                                                         down a period of grace of 90 days within which, in order to
                         (2000/C 247/33)                                 avoid the three-year time-limit introduced retroactively in
                                                                         place of a previous five-year limitation period, a party enjoying
Reference has been made to the Court of Justice of the                   a right to recover a sum paid but not due resulting from a
European Communities by an order of the Court of Appeal                  payment made prior to the entry into force of the said
(England & Wales) (Civil Division) of 14 June 2000, which was            provision must bring a legal action?’
received at the Court Registry on 26 June 2000, for a
preliminary ruling in the case of 1) Antonio Muñoz y Cia SA
and 2) Superior Fruiticola SA against 1) Frumar Ltd and 2)
Redbridge Produce Marketing Ltd, on the following question:


title: Case C-427/11: Judgment of the Court (Third Chamber) of 28 February 2013 (request for a preliminary ruling from the High Court — Ireland) — Margaret Kenny and Others v Minister for Justice, Equality and Law Reform and Others (Article 141 EC — Directive 75/117/EEC — Equal pay for men and women — Indirect discrimination — Objective justification — Conditions)

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/13

         Judgment of the Court (Third Chamber) of 28 February 2013 (request for a preliminary ruling from the High Court — Ireland) — Margaret Kenny and Others v Minister for Justice, Equality and Law Reform and Others
   (Case C-427/11) (1)

   (Article 141 EC - Directive 75/117/EEC - Equal pay for men and women - Indirect discrimination - Objective justification - Conditions)
   2013/C 114/18
   Language of the case: English

      Referring court

   High Court (Ireland)

      Parties to the main proceedings

      Appellants: Margaret Kenny, Patricia Quinn, Nuala Condon, Eileen Norton, Ursula Ennis, Loretta Barrett, Joan Healy, Kathleen Coyne, Sharon Fitzpatrick, Breda Fitzpatrick, Sandra Hennelly, Marian Troy, Antoinette Fitzpatrick, Helena Gatley

      Defendants: Minister for Justice, Equality and Law Reform, Minister for Finance, Commissioner of An Garda Síochána

      Re:

   Request for a preliminary ruling — High Court (Ireland) — Interpretation of Article 157 TFEU and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) (replaced by Directive 2006/54/EC) — Concept of objective justification in the context of apparent indirect discrimination between male and female workers within the civil service — Criteria

      Operative part of the judgment

   Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women must be interpreted as follows:

               —

               employees perform the same work or work to which equal value can be attributed if, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation, which it is a matter for the national court to ascertain;

               —

               in relation to indirect pay discrimination, it is for the employer to establish objective justification for the difference in pay between the workers who consider that they have been discriminated against and the comparators;

               —

               the employer’s justification for the difference in pay, which is evidence of a prima facie case of gender discrimination, must relate to the comparators who, on account of the fact that their situation is described by valid statistics which cover enough individuals, do not illustrate purely fortuitous or short-term phenomena, and which, in general, appear to be significant, have been taken into account by the referring court in establishing that difference, and

               —

               the interests of good industrial relations may be taken into consideration by the national court as one factor among others in its assessment of whether differences between the pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex and are compatible with the principle of proportionality.

      (1)  OJ C 311, 22.10.2011.


title: Case T-464/15: Order of the General Court of 14 September 2015 — Othman v Council

text:
               7.11.2016

               EN

               Official Journal of the European Union

               C 410/33

         Order of the General Court of 14 September 2015 — Othman v Council
   (Case T-464/15) (1)

   (2016/C 410/50)
   Language of the case: French
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 337, 12.10.2015.


title: Case C-489/15: Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 17 September 2015 — CTL Logistics GmbH v DB Netz AG

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/17

         Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 17 September 2015 — CTL Logistics GmbH v DB Netz AG
   (Case C-489/15)
   (2015/C 406/18)
   Language of the case: German

      Referring court

   Landgericht Berlin

      Parties to the main proceedings

      Applicant: CTL Logistics GmbH

      Defendant: DB Netz AG

      Questions referred

               1.

               Are the provisions of European law, in particular Article 30(1) (first sentence), (2), (3), (5) (first subparagraph), and (6) of Directive 2001/14/EC, (1) to be interpreted as precluding claims for repayment of charges for the use of railway infrastructure agreed or specified in a framework contract between an infrastructure manager and an applicant in so far as such claims are not made in the proceedings envisaged as taking place before the national regulatory body and the corresponding judicial proceedings in which decisions of that regulatory body are reviewed?

               2.

               Are the provisions of European law, in particular Article 30(1) (first sentence), (2), (3), (5) (first subparagraph), and (6) of Directive 2001/14/EC, to be interpreted as precluding claims for repayment of charges for the use of railway infrastructure agreed or specified in a framework contract between an infrastructure manager and an applicant if the disputed charges have not previously been submitted to the national regulatory body for review?

               3.

               Is it compatible with the requirements of EU law, which requires an infrastructure manager to comply with general requirements for setting charges, such as covering costs (Article 6(1) of Directive 2001/14/EC) or taking into account market sustainability criteria (Article 8(1) of Directive 2001/14/EC), for there to be a review in the civil courts of the equitable nature of charges for the use of railway infrastructure on the basis of a national civil law provision which permits the courts to review the fairness of performance unilaterally specified by one of the parties and, where appropriate, to specify performance themselves in the exercise of their own discretion?

               4.

               If question 3 is answered in the affirmative: in exercising its discretion, must the civil court apply the criteria in Directive 2001/14/EC as regards the setting of charges for the use of railway infrastructure, and, if so, which ones?

               5.

               Is the assessment by the civil courts of the fairness of charges on the basis of the national provision referred to in question 3 compatible with European law in so far as the civil courts set charges which depart from the general charging principles and the amounts of the charges of a railway manager, notwithstanding the fact that that railway manager is obliged by EU law to treat all persons entitled to access equally and in a non-discriminatory manner (Article 4(5) of Directive 2001/14/EC)?

               6.

               Is the review by the civil courts of the equitable nature of charges imposed by an infrastructure manager compatible with EU law taking into account the fact that EU law assumes that it is the regulatory body that is competent to determine differences of opinion between an infrastructure manager and a person entitled to access as regards charges for the use of railway infrastructure, or the amount or structure of such charges, which the person entitled to access is or would be obliged to pay (third subparagraph of Article 30(5) of Directive 2001/14/EC), and the fact that the potentially large number of disputes before different civil courts means that the regulatory body would not be able to ensure the uniform application of railway regulatory law (Article 30(3) of Directive 2001/14/EC)?

               7.

               Is it compatible with EU law, in particular Article 4(1) of Directive 2001/14/EC, for national provisions to require that all charges for the use of railway infrastructure imposed by infrastructure managers be calculated solely on the basis of direct costs?

      (1)  Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29).


title: Case C-269/15: Judgment of the Court (Tenth Chamber) of 26 October 2016 (request for a preliminary ruling from the Hof van Cassatie — Belgium) — Rijksdienst voor Pensioenen v Willem Hoogstad (Reference for a preliminary ruling — Social security — Regulation (EEC) No 1408/71 — Article 4 — Material scope — Deductions from statutory old-age pensions and all other supplementary benefits — Article 13 — Determination of the applicable legislation — Residence in another Member State)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/17

         Judgment of the Court (Tenth Chamber) of 26 October 2016 (request for a preliminary ruling from the Hof van Cassatie — Belgium) — Rijksdienst voor Pensioenen v Willem Hoogstad
   (Case C-269/15) (1)

   ((Reference for a preliminary ruling - Social security - Regulation (EEC) No 1408/71 - Article 4 - Material scope - Deductions from statutory old-age pensions and all other supplementary benefits - Article 13 - Determination of the applicable legislation - Residence in another Member State))
   (2017/C 006/21)
   Language of the case: Dutch

      Referring court

   Hof van Cassatie

      Parties to the main proceedings

      Applicant: Rijksdienst voor Pensioenen

      Defendant: Willem Hoogstad

      Intervener: Rijksinstituut voor ziekte- en invaliditeitsverzekering

      Operative part of the judgment

   Article 13(1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, precludes a national law, such as that at issue in the main proceedings, which imposes levies of contributions that have a direct and sufficiently relevant link with the legislation governing the branches of social security listed in Article 4 of that regulation on payments made under supplementary pension schemes even though the beneficiary of that supplementary pension scheme does not reside in that Member State and is subject, in accordance with Article 13(2)(f) of that regulation, to the social security legislation of the Member State in which he resides.

      (1)  OJ C 311, 21.9.2015.


title: Case C-334/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Hellenic Republic

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/8

         Action brought on 30 July 2004 by the Commission of the European Communities against the Hellenic Republic
   (Case C-334/04)
   (2004/C 239/14)
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 30 July 2004 by the Commission of the European Communities, represented by Maria Patakia and Michel van Beek, of its Legal Service.
   The Commission claims that the Court should declare that:

               by classifying as special protection areas (SPAs) territories the number and overall size of which fall clearly short of the number and overall size of territories fulfilling the preconditions for classification as special protection areas within the meaning of Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds,

               by designating SPAs of a size clearly smaller than the corresponding IBA 2000 territories which fulfil the preconditions for classification as SPAs,

               by failing to designate SPAs for many species of birds included in Annex I to Directive 79/409 or by having classified as SPAs areas where the species in question are insufficiently represented,

               by failing to designate SPAs for many migratory species or by having classified as SPAs areas where the species at issue are insufficiently represented,

         the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409.
   Pleas in law and main arguments
   In accordance with settled case-law of the Court of Justice, Article 4(1) and (2) of Directive 79/409 requires the Member States to lay down a special regime for SPAs that ensures, principally, the survival and reproduction of the species mentioned in Annex I to that directive.
   In accordance with the case-law, but also in the Commission's submission, the IBA (Important Bird Areas) inventory is considered to be an authoritative scientific basis of reference.
   In accordance with that inventory, 186 areas in Greece must be classified as SPAs.
   By the date on which the application was lodged Greece had designated only 151 SPAs, and they are smaller in extent than envisaged by the IBA 2000 inventory.
   The Commission concludes therefrom that those SPAs have not been designated on the basis of ornithological criteria as required by Article 4 of the directive.
   Greek national territory is of great ornithological importance for many of the species of wild birds mentioned in Annex I to the directive, including species under threat worldwide. Those species are not sufficiently covered by the existing SPAs in Greece.


title: Case C-213/10: Judgment of the Court (First Chamber) of 19 April 2012 (reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania)) — F-Tex SIA v Lietuvos-Anglijos UAB ‘Jadecloud-Vilma’ (Judicial cooperation in civil matters — Regulation (EC) No 1346/2000 — Article 3(1) — Concept of an action related to insolvency proceedings and closely connected with those proceedings — Regulation (EC) No 44/2001 — Article 1(1) and (2)(b) — Concepts of civil and commercial matters and of bankruptcy or winding-up — Action brought on the basis of an assignment, by a liquidator, of his right to have a transaction set aside)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/3

         Judgment of the Court (First Chamber) of 19 April 2012 (reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania)) — F-Tex SIA v Lietuvos-Anglijos UAB ‘Jadecloud-Vilma’
   (Case C-213/10) (1)

   (Judicial cooperation in civil matters - Regulation (EC) No 1346/2000 - Article 3(1) - Concept of an action related to insolvency proceedings and closely connected with those proceedings - Regulation (EC) No 44/2001 - Article 1(1) and (2)(b) - Concepts of civil and commercial matters and of bankruptcy or winding-up - Action brought on the basis of an assignment, by a liquidator, of his right to have a transaction set aside)
   2012/C 165/04
   Language of the case: Lithuanian

      Referring court

   Lietuvos Aukščiausiasis Teismas

      Parties to the main proceedings

      Applicant: F-Tex SIA

      Defendant: Lietuvos-Anglijos UAB ‘Jadecloud-Vilma’

      Re:

   Reference for a preliminary ruling — Lietuvos Aukščiausiasis Teismas — Interpretation of Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1) and of Articles 1(2)(b) and 2(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — International jurisdiction to decide an actio Pauliana directly and closely connected with insolvency proceedings — Conflict of jurisdiction between the court in which the insolvency proceedings are taking place and the court of the defendant’s domicile — Actio Pauliana brought after the opening of insolvency proceedings, by the sole creditor of the company in liquidation, in a Member State other than that in which the insolvency proceedings are taking place, following the assignment by the liquidator to the creditor of the company’s claims against third parties

      Operative part of the judgment

   Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action brought against a third party by an applicant acting on the basis of an assignment of claims which has been granted by a liquidator appointed in insolvency proceedings and the subject-matter of which is the right to have a transaction set aside that the liquidator derives from the national law applicable to those proceedings is covered by the concept of civil and commercial matters within the meaning of that provision.

      (1)  OJ C 195, 17.7.2010.


C 20/28               EN                     Official Journal of the European Communities                                 22.1.2000
       Removal from the register of Case T-11/96 (1)                           Removal from the register of Case T-306/97 (1)
                        (2000/C 20/58)                                                          (2000/C 20/61)
                  (Language of the case: English)                                         (Language of the case: English)
By order of 10 November 1999, the President of the Fourth               By order of 10 November 1999, the President of the Fourth
Chamber of the Court of First Instance of the European                  Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of                Communities has ordered the removal from the register of
Case T-11/96: Donald George Gage and David John Gage v                  Case T-306/97: M.C. Lewis, M.A. Lewis and D.C. Lewis v
Council of the European Union and Commission of the                     Council of the European Union and Commission of the
European Communities.                                                   European Communities.
(1) OJ C 133 of 4.5.1996.                                               (1) OJ C 94 of 28.3.1998.
       Removal from the register of Case T-304/97 (1)                          Removal from the register of Case T-90/98 (1)
                        (2000/C 20/59)                                                          (2000/C 20/62)
                                                                                (Language of the case: English)
                  (Language of the case: English)
                                                                        By order of 25 October 1999, the President of the First
By order of 10 November 1999, the President of the Fourth               Chamber, of the Court of First Instance of the European
Chamber of the Court of First Instance of the European
                                                                        Communities has ordered the removal from the register of
Communities has ordered the removal from the register of
                                                                        Case T-90/98: Assidomän Kraft Products AB, AB Iggesund
Case T-304/97: W.J.C. Hilsdon v Council of the European                 Bruk, Korsnäs AB, Modo Paper AB, Södra Cell AB, Stora
Union and Commission of the European Communities.
                                                                        Kopparbergs Bergslags AB, Svenska Cellulosa AB (SCA) v
                                                                        Commission of the European Communities.
(1) OJ C 94 of 28.3.1998.
                                                                        (1) OJ C 234 of 25.7.1998.
       Removal from the register of Case T-305/97 (1)
                                                                               Removal from the register of Case T-135/98 (1)
                        (2000/C 20/60)
                                                                                (2000/C 20/63)
                  (Language of the case: English)
                                                                                (Language of the case: French)
By order of 10 November 1999, the President of the Fourth
Chamber of the Court of First Instance of the European                  By order of 22 October 1999, the Court of First Instance of
Communities has ordered the removal from the register of                the European Communities (single judge) has ordered the
Case T-305/97: Jimmy Hull v Council of the European Union               removal from the register of Case T-135/98: Elaine Spence v
and Commission of the European Communities.                             Commission of the European Communities.
(1) OJ C 94 of 28.3.1998.                                               (1) OJ C 327 of 24.10.1998.


title: Case C-273/07: Judgment of the Court (Sixth Chamber) of 26 February 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 2005/51/EC — Public procurement — Procedures for the award of contracts)

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/9

         Judgment of the Court (Sixth Chamber) of 26 February 2008 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-273/07) (1)

   (Failure of a Member State to fulfil its obligations - Directive 2005/51/EC - Public procurement - Procedures for the award of contracts)
   (2008/C 92/14)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: B. Stromsky and D. Kukovec, acting as Agent)

      Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Commission Directive 2005/51/EC of 7 September 2005, amending Annex XX to Directive 2004/17/EC and Annex VIII to Directive 2004/18/EC of the European Parliament and the Council on public procurement (OJ 2005 L 257, p. 127)
   Operative part of the judgment
   The Court

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/51/EC of 7 September 2005, amending Annex XX to Directive 2004/17/EC and Annex VIII to Directive 2004/18/EC of the European Parliament and the Council on public procurement, the Grand Duchy of Luxembourg failed to fulfil its obligations under that directive;

               2.

               Orders the Grand Duchy of Luxembourg to pay the costs.

      (1)  OJ C 211, 8.9.2007.


title: Action brought on 2 October 1997 by 'D' against Council of the European Union (Case T-264/97)

text:
22 . 11 . 97           EN                  Official Journal of the European Communities                                    C 357/35
  7 . The Disciplinary Board lacked independence as a                       refusal to take into account, in calculating Category B
       result of deferential fear and fear of reprisals against             licences, its normal reference quantity (which is that of
       the careers of its members. The applicant claims that                the three years immediately prior to the outbreak of
       there was an attempt to interfere with a witness's                   the war in Somalia ),
       deposition.
                                                                      — in the alternative, order the Council, pursuant to
  8 . Breach of the freedom of trade union activity and of                  Article 178 and the second paragraph of Article 215
       the privileges of the staff committee and of the                     of the EC Treaty, to pay compensation to Camar in
       general assembly of the staff.                                       the event that the Court should decide that that
                                                                            institution is liable for not having adopted a specific
  9 . Misuse of powers.                                                     provision in Regulation ( EEC ) No 404/93 H allowing
                                                                            situations such as that of Camar to be resolved,
10. Breach of the principle of proportionality inasmuch
       as there were no grounds for making the disciplinary           — order the Commission and/or the Council to pay the
       measure more severe. In this regard, the applicant                   costs incurred by the applicant in these proceedings.
       points out that the disciplinary measure annulled in
       Case T-500/93 was deferment of advancement to a
                                                                      Pleas in law and main arguments adduced in support:
       higher step for two years, that the Disciplinary Board
       had proposed that the official be reprimanded and
       that one of the charges constituted actual                     The applicant company is the same as that in Case T-172/
       misconduct. In the present case, despite the fact that         97 Camar v. Commission (2), which involved proceedings,
       the misconduct relied on is manifestly non-existent            alleging failure to fulfil obligations, seeking that the non
       and that the Disciplinary Board delivered the                  member country licences normally allocated to it as a
       unanimous opinion that the official should be                  Category B operator should be quantified, not on the basis
       acquitted, the disciplinary measure was even more              of imports over the three-year period provided for under
       severe .                                                       Article 4 of Regulation No 1442/93 , but rather on the
                                                                      basis of imports over the years 1988 , 1989 and 1990 . The
                                                                      present application is directed against the express decision
                                                                      rejecting the applicant's request.
                                                                      The pleas in law and main arguments are similar to those
Action brought on 25 September 1997 by Societa Camar                  already relied on in Case T- 172/97. Reference is made in
s.r.l. against Commission of the European Communities                 particular to breach of Article 30 of the basic regulation in
                and Council of the European Union                     the banana sector ( Council Regulation No 404/93 ), breach
                         ( Case T-260/97)                             of the principle of non-discrimination and of the
                                                                      fundamental rights of traders, as well as to the existence
                           ( 97/C 357/65 )                            of abuse of power by reason of an erroneous assessment
                                                                      of assumptions of fact.
                  (Language of the case: Italian)
                                                                      (') OJ L 49 , 25 . 2 . 1993 , p. 1 .
                                                                      (2 ) OJ C 271 , 6 . 9 . 1997, p. 16 .
An action against the Commission of the European
Communities and the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 25 September 1997 by Societa Camar
s.r.l., represented by Wilma Viscardini Dona, assisted by
Mariano Paolin and Simonetta Dona, of the Padua Bar,
with an address for service in Luxembourg at the                      Action brought on 2 October 1997 by 'D' against Council
Chambers of Ernst Arendt, Rue Mathias Hardt.                                                  of the European Union
                                                                                (Case T-264/97)
The applicant claims that the Court should:
                                                                                ( 97/C 357/66 )
— annul, pursuant to Articles 173 and 174 of the EC
      Treaty, the Commission decision of 17 July 1997                                    (Language of the case: French)
      rejecting an application for transitional measures in
      favour of Camar under the tariff quota system for
      imports of bananas,                                             An action against the Council of the European Union was
                                                                      brought before the Court of First Instance of the European
                                                                      Communities on 2 October 1997 by 'D', represented by
— order the Commission, pursuant to Article 178 and                   Jean-Noel Louis, Thierry Demaseure, Ariane Tornel and
      the second paragraph of Article 215 of the EC Treaty,           Fran^oise Parmentier, of the Brussels Bar, with an address
      to pay compensation for the damage which Camar has              for service in Luxembourg at the offices of Fiduciaire
      suffered and will suffer as a result of the Commission's        Myson Sari, 30 Rue de Cessange.
 ---pagebreak--- C 357/36             EN                   Official Journal of the European Communities                                  22 . 11 . 97
The applicant claims that the Court should :                         In support of his claims, the applicant first alleges
                                                                     infringement of Article 8 of the European Convention on
— annul the decision refusing to recognize the applicant's           Human Rights and of the principles of equal treatment
    legal 'partnership' and to grant him, and his partner,           and non-discrimination, together with failure to take full
    the remuneration to which he is entitled under the               account of the unique nature of the applicant's personal
    Staff Regulations and the rules and other general                status . He also claims there was a manifest error of
    provisions applicable to officials of the European               assessment in the present case, in so far as no direct or
    Communities, including allowances, privileges and                indirect discrimination may lawfully be based on a
    immunities,                                                      person's sexual orientation and the defendant is obliged to
                                                                     recognize the applicant's personal status under the
— annul the subsequent decision refusing to pay him the
                                                                     partnership contract which was lawfully entered into in
    remuneration to which he is entitled by virtue of his            Sweden .
    status, plus interest at the rate of 8 % per annum from
    the date of his application ( 16 September 1996 ),               In that respect, the applicant points out that the protection
— order the defendant to pay the costs .                             to which individuals are entitled is intended, inter alia, to
                                                                     avoid discrimination, irrespective of a person's sexual
Pleas in law and main arguments adduced in support:                  orientation, except in cases strictly provided for by . law
                                                                     and justified on duly specified grounds of public policy
The applicant challenges the appointing authority's refusal          and security. In his view, sexual orientation is currently
to recognize his partner, registered as such in accordance           undergoing a social evolution, the reality of which cannot
with the Swedish Law of 23 June 1994, as a ' spouse' for             be ignored since to do otherwise would breach the
the purposes of the benefits and advantages granted by the           fundamental principles of equal treatment, non
Staff Regulations to a married official or agent. That               discrimination and respect for private and family life .
refusal is based in particular on the view that the
provisions of the Staff Regulations which refer to the               Second, the applicant alleges infringement of Article 7 of
concept of marriage cannot be interpreted in such a way              the Staff Regulations, Articles 1 , 5 , 7 and 8 of Annex VII
as to treat a registered partnership as equivalent to                to the Staff Regulations, the provisions relating to
marriage.                                                            survivor's pensions and Article 119 of the EC Treaty.


title: Case C-50/12 P: Appeal brought on 1 February 2012 by Kendrion NV against the judgment of the General Court (Fourth Chamber) delivered on 16 November 2011 in Case T-54/06 Kendrion v Commission

text:
               17.3.2012

               EN

               Official Journal of the European Union

               C 80/14

         Appeal brought on 1 February 2012 by Kendrion NV against the judgment of the General Court (Fourth Chamber) delivered on 16 November 2011 in Case T-54/06 Kendrion v Commission

   (Case C-50/12 P)
   2012/C 80/20
   Language of the case: Dutch

      Parties

      Appellant: Kendrion NV (represented by: P. Glazener and T. Ottervanger, advocaten)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside the judgment, in whole or in part, in accordance with the pleas in law put forward in this appeal;

               —

               annul the decision, in whole or in part, in so far as it concerns the appellant;

               —

               annul or reduce the fine imposed on the appellant;

               —

               in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

               —

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

      Pleas in law and main arguments

               1.

               According to the
                     first plea in law
                  , the General Court misconstrued Union law and provided contradictory and insufficient grounds for its judgment in ruling that the Commission had explained to the requisite legal standard why it had imposed a fine on Kendrion that is higher than the fine imposed on Fardem.

               2.

               According to the
                     second plea in law
                  , the General Court made an error of assessment in its determination of the question whether the Commission was entitled to deem Kendrion jointly and severally liable for the fine to be imposed on its former subsidiary Fardem, and made mistakes in its specific examination of the evidence, thereby committing procedural errors. In its judgment, the General Court erred in its allocation of the burden of proof, manifestly misconstrued the facts and clearly erred in its assessment of the evidence. Moreover, the General Court failed to provide sufficient grounds for its findings and did not sufficiently address the arguments put forward by Kendrion.

               3.

               By the
                     third plea in law
                   Kendrion challenges the considerations in the judgment under appeal in which the General Court addresses and dismisses the second, fourth and fifth pleas in law put forward by Kendrion at first instance. In Kendrion’s view, the General Court proceeded on the basis of a misconstruction of Union law in assuming that the parent company Kendrion, which did not participate in the infringement, could itself be subject to a fine higher than the fine imposed on the subsidiary undertaking Fardem, which carried out the infringement. Furthermore, the General Court infringed the principle of equal treatment, and gave reasons for its findings that were contradictory and inadequate.

               4.

               By the
                     fourth plea in law
                   Kendrion submits that the General Court was wrong to reject as irrelevant Kendrion’s argument regarding the excessive duration of the proceedings in the General Court. The General Court thus appears to take the view that it has no jurisdiction to adjudicate on procedural irregularities in General Court proceedings. Even if it were the case that the General Court does not itself have the power to reduce fines on account of the excessive duration of its own proceedings, the Court of Justice is in any event obliged to rule on this point, which is one that is essential for legal certainty, and to draw the appropriate conclusions from it.


title: Case F-131/11: Action brought on 2 December 2011 — ZZ v Commission

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/23

         Action brought on 2 December 2011 — ZZ v Commission
   (Case F-131/11)
   2012/C 65/42
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers,)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision to transfer pension rights acquired before entry into service with the Commission on the basis of the recalculated proposal of the PMO

      Form of order sought

               —

               Annul the decision of 15 June 2011 annulling and replacing the proposal for transfer of the applicant’s pension rights in the context of his request under Article 11(2) of Annex VIII to the Staff Regulations, which comprises a new proposal calculated on the basis of the GIP adopted on 3 March 2011;

               —

               order the Commission to pay the costs.


title: Case C-659/16: Action brought on 20 December 2016 — European Commission v Council of the European Union

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/20

         Action brought on 20 December 2016 — European Commission v Council of the European Union
   (Case C-659/16)
   (2017/C 038/26)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: A. Bouquet, E. Paasivirta and Ch. Hermes, acting as Agents)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul in part the Council’s Decision of 10 October 2016, adopted by Note point ‘I/A’, concerning the establishment of the European Union’s position for the 35th annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) (Hobart, Australia, from 17 to 28 October 2016), in so far as concerns the creation of three marine protected areas and the creation of special study areas (Documents 12523/16 and 12445/16);

               —

               order Council of the European Union to pay the costs.

      Pleas in law and main arguments

   The Commission requests the Court to annul the Council’s decision of 10 October 2016 in so far as the Council required that proposals to the Commission for the conservation of Antarctic marine living resources with a view to the creation of three marine protected areas in the Weddell Sea, the Ross Sea and the East Antarctic and a system of special study areas be submitted or supported on behalf of the European Union and its Member States, rather than being submitted or supported on behalf of the European Union alone.
   The Commission maintains that, by taking the view that competence in the matter is shared and that, as a result, the discussion document should be decided by consensus and submitted on behalf of the European Union and its Member States, the contested decision is unlawful, in so far as it thus precludes the Commission from submitting that document on behalf of the European Union alone, in breach of the European Union’s exclusive competence in the matter (and of the Commission’s prerogatives to represent the European Union).
   The Commission relies on two pleas in law in support of its action for annulment of the contested decision.
   In the first place, the Commission submits that by adopting the contested act, the Council acted in breach of the European Union’s exclusive competence in the matter of the conservation of marine biological resources, as laid down in Article 3(1)(d) TFEU (first plea in law). First, the Commission argues that the Council disregarded the legal context of the measure concerned by the contested act, both in connection with the Convention for the Conservation of Antarctic Marine Living Resources and with the European Union. Second, the Commission maintains that the Council disregarded the purpose and the content of that measure.
   In the second place (in the alternative), the Commission submits that even if the measure did not have to be regarded as a measure for the conservation of marine biological resources within the meaning of Article 3(1)(d) TFEU, by adopting the contested act the Council infringed, in any event, the European Union’s exclusive competence inasmuch as the European Union has exclusive external competence in the matter because the measure envisaged may affect rules of the European Union or alter their scope for the purpose of Article 3(2) TFEU (second plea in law). First, the Commission argues that the Council disregarded the fact that the measure envisaged may affect or alter two regulations of secondary law (Regulation (EC) No 600/2004 and Regulation (EC) No 601/2004). Second, the Commission maintains that the Council did not take account of the effect on, or alteration of, the framework position of the European Union of June 2014.


title: Action brought on 21 January 1998 by the Scottish Soft Fruit Growers Limited against the Commission of the European Communities (Case T-22/98)

text:
C 94/36               EN                   Official Journal of the European Communities                                       28.3.98
Court of Justice, must not be borne by an official assigned           In contesting that rejection, the applicant pleads, first,
to a non-member State. The result of the contested                    infringement of Article 25(2) of the Staff Regulations,
decisions is to unjustly enrich the institutions whereas the          stating that the defendant did not provide him with the
applicant actually incurred costs for accommodation for               means to enable him to assess whether the contested
which she was reimbursed. The fact that she owns the                  decision was well-founded.
building which she occupies is of no effect on the
genuineness of the cost of accommodation incurred.
                                                                      The applicant also alleges infringement of Article 12 of
                                                                      the Conditions of employment of other servants and that
Moreover, there is no provision of the Staff Regulations or
                                                                      the vacancy notice is unlawful inasmuch as the exclusion
of Annex X to the Staff Regulations which authorises an
                                                                      criterion relied on by the APCC to justify rejecting his
institution to refuse to reimburse the cost of
                                                                      candidature, which in any event is not expressly stated in
accommodation of an official assigned to a non-member
                                                                      the vacancy notice, does not constitute a proper means for
State who owns the accommodation which he or she
                                                                      achieving the objective pursued by the abovementioned
occupies in the place where the institution has sent him or
                                                                      provisions, namely, securing for the institution the services
her solely in the interest of the service.
                                                                      of officials of the highest standard of ability, efficiency and
Finally, the contested decisions breach the general                   integrity.
principle that all officials must be treated equally
inasmuch as they are based on internal directives which               Finally, the applicant argues that the APCC committed a
do not taken into consideration the accommodation factor              manifest error of assessment when it considered that his
when determining the weighting where an official becomes              candidature could not be taken into consideration for the
the owner of the flat or building which he occupies.                  post for which he had applied, whereas his qualifications,
                                                                      training and experience perfectly match the job profile for
                                                                      the post.
Action brought on 19 January 1998 by Carlos Alberto
Leite Mateus against the Commission of the European
                         Communities
                        (Case T-21/98)                                Action brought on 21 January 1998 by the Scottish Soft
                                                                      Fruit Growers Limited against the Commission of the
                         (98/C 94/84)                                                     European Communities
               (Language of the case: French)                                                 (Case T-22/98)
                                                                                (98/C 94/85)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 19 January                                    (Language of the case: English)
1998 by Carlos Alberto Leite Mateus, residing at
Zaventem (Belgium), represented by Jean-NoeÈl Louis,                  An action against the Commission of the European
Ariane Tornel and FrancËoise Parmentier, of the Brussels              Communities was brought before the Court of First
Bar, with an address for service in Luxembourg at Fidu-               Instance of the European Communities on 21 January
ciaire Myson SARL, 30 Rue de Cessange.                                1998 by the Scottish Soft Fruit Growers Limited,
                                                                      represented by Fergus Randolph, with an address for
The applicant claims that the Court should:                           service in Luxembourg at the offices of Arendt &
                                                                      Medernach, 8Ð10, rue Matthias Hardt.
Ð annul the decision of the Commission of 11 March
    1997 to reject the applicant's candidature for post
    NPPR/2002/96,                                                     The applicant claims that the Court should:
Ð order the defendant to pay the costs.                               Ð annul the decision of the Commission, received by the
                                                                          applicant on 12 November 1997, refusing to accede to
Pleas in law and main arguments adduced in support:
                                                                          a request made by the Scottish Office concerning the
                                                                          repayment of start-up grant by the applicant, and
The applicant, an official in Grade B at the Commission
since 1988, put forward his candidature in response to a
call for expressions of interest published on 14 October              Ð order the Commission to pay the costs.
1996 with a view to employing temporary staff in
Research' budgetary posts. By memorandum of 11 March
                                                                      Pleas in law and main arguments adduced in support:
1997 he was informed that his candidature had been
rejected. Following the complaint lodged against that
decision, the authority with the power to conclude                    The applicant explains that it was formed in 1992 to carry
contracts (APCC) stated that the rejection of the                     on business as the producers' organisation for raspberries
applicant's candidature was based on the fact that he                 in the United Kingdom. As such, under Article 2(2) of
could not participate in a selection procedure for                    Council Regulation (EEC) 1991/92, establishing a special
temporary staff members since he was already an official.             scheme for raspberries intended for processing (OJ L 199,
 ---pagebreak--- 28.3.98               EN                  Official Journal of the European Communities                                      C 94/37
18.7.1992, p. 1), it was entitled to receive a start-up grant        achieved so demands and where the legitimate
from the competent national authorities on submitting to             expectations of those concerned are duly respected. It
them a programme to improve the competitiveness of                   considers that the relevant criteria had in fact been
raspberry production for processing. Pursuant to                     fulfilled and that therefore the retroactive legislation could
Article 2(3), the said grant is fixed at ECU 50 per tonne of         have been adopted. In the applicant's view, the
raspberries as marketed for processing by the producers'             Commission's reliance on the principle of non-retroactivity
organisations, normally during the first marketing year              in order to refuse to accede to the request in question was
following special recognition. As the applicant was                  wholly wrong and unlawful in all circumstances.
recognised in April 1993, the relevant marketing year for
the purpose of determining the amount of the grant was
from 1 June 1993 to 31 May 1994.
Pursuant to Commission Regulation (EEC) No 2252/92,
laying down special rules for the raspberry market (OJ               Action brought on 26 January 1998 by Antonio Pernice
L 219, 4.8.1992, p. 19), 70 % of the start-up grant was                against the Commission of the European Communities
paid by the Intervention Board, the competent national                                      (Case T-24/98)
authority, on 2 July 1993. Because it was based on a
                                                                                (98/C 94/86)
marketing period which had only just started, the
applicant's grant was provisionally calculated on the basis
of the quantity marketed in the marketing year 1 June                               (Language of the case: French)
1993 to 31 May 1994.
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
The weather conditions were very unusual during the                  Instance of the European Communities on 26 January
marketing year 1993/94, so that instead of marketing                 1998 by Antonio Pernice, residing at Brussels, represented
approximately 7 000 tonnes of raspberries, it only                   by Jean-NoeÈl Louis, Ariane Tornel and FrancËoise
marketed just over 4 000 tonnes. However, Article 6 of               Parmentier, of the Brussels Bar, with an address for service
Regulation (EEC) No 2252/92 specifically allowed                     in Luxembourg at Fiduciaire Myson SARL, 30 Rue de
marketing organisations, which had been adversely                    Cessange.
affected by bad weather, to use the second marketing year
following recognition as the basis for the calculation of
the grant. Unfortunately, the relevant year (1994/95) was            The applicant claims that the Court should:
even less clement and the applicant's sales tonnage
dropped to just over 3 500 tonnes. The Intervention Board            Ð annul the decision of 12 November 1997 to continue
then sought the repayment of GBP 83 745 from the                          to suspend the applicant of his duties and to prohibit
applicant.                                                                him from attending as chairman, contributor or mere
                                                                          participant in conferences, colloquia, seminars and
                                                                          other events or similar training programmes,
On 25 October 1995 the Scottish Office, Agriculture,
Environment and Fisheries Department, taking an interest
in the matter, wrote to the Commission. In that letter, it           Ð order the defendant to pay to the applicant ECU 1 as
set out the background to the problem and requested the                   symbolic damages for non-material and professional
                                                                          damage suffered as a result of successive wrongful
Commission to amend Regulation (EEC) No 1991/92
slightly so as to take into account the exceptionally                     conduct,
adverse weather conditions in Scotland during the relevant
period and thereby not to force the national authorities to          Ð order the defendant to pay the costs.
order the repayment of the start-up grant on the restricted
wording presently in force.                                          Pleas in law and main arguments adduced in support:
By letter of 16 October 1997 (the contested decision), the           The applicant, a member of the temporary staff, contests
Commission answered that it could not accede to that                 the suspension measure imposed on him by the appointing
request. This decision was based on two points: first, the           authority, pending a definitive disciplinary measure, on the
decision sought on behalf of the applicant would have the            ground of complaints based on failure to observe the third
effect of cancelling a national recovery order and secondly          paragraph of Article 12 and the first paragraph of
such a decision would have to be applied retroactively.              Article 17 of the Staff Regulations. The applicant points
                                                                     out in this regard that the suspension measure was
                                                                     adopted despite the Disciplinary Board's recommendation
As to the first point, the applicant states that there is no         that he be only reprimanded.
reason, legal or otherwise, why the relevant national
authority should not cancel a recovery order where such
                                                                     In support of his claim, the applicant puts forward the
action is warranted.
                                                                     following:
As to the second point, it maintains that Community law              Ð infringement of Article 88 of the Staff Regulations,
permits retroactive legislation where the purpose to be                   unlawfulness of the suspension decision, abuse of