title: Order of the Court (Fourth Chamber) of 19 September 2002 in Case C-267/01 (reference for a preliminary ruling from the Oberste Gerichtshof): Jaroslav Nyvlt v Flughafen Wien AG (Article 104(3) of the Rules of Procedure — Answer to a question admitting of no reasonable doubt — Article 3 of Regulation (EEC) No 3922/91 — Harmonisation of technical requirements and administrative procedures in the field of civil aviation — Paragraph 35 of Code 145 of the Joint Aviation Requirements)

text:
25.1.2003                EN                      Official Journal of the European Communities                                             C 19/9
                  JUDGMENT OF THE COURT                                                          ORDER OF THE COURT
                                                                                (Fourth Chamber)
                         (Second Chamber)
                                                                                of 19 September 2002
                       of 28 November 2002                                  in Case C-267/01 (reference for a preliminary ruling from
                                                                            the Oberste Gerichtshof): Jaroslav Nyvlt v Flughafen Wien
                                                                                AG ( 1)
in Case C-414/01: Commission of the European Communi-
                    ties v Kingdom of Spain ( 1)                            (Article 104(3) of the Rules of Procedure — Answer to a
                                                                            question admitting of no reasonable doubt — Article 3 of
                                                                            Regulation (EEC) No 3922/91 — Harmonisation of techni-
(Failure by a Member State to fulfil its obligations — Failure              cal requirements and administrative procedures in the field
                 to implement Directive 97/7/EC)                            of civil aviation — Paragraph 35 of Code 145 of the Joint
                                                                                Aviation Requirements)
                            (2003/C 19/16)                                                             (2003/C 19/17)
                                                                                (Language of the case: German)
                    (Language of the case: Spanish)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                            In Case C-267/01: reference to the Court under Article 234
                                                                            EC from the Oberste Gerichtshof (Austria) for a preliminary
                                                                            ruling in the proceedings pending before that court between
                                                                            Jaroslav Nyvlt and Flughafen Wien AG — on the interpretation
In Case C-414/01, Commission of the European Communities                    of Paragraph 35 of Code 145 of the Joint Aviation Require-
(Agent: I. Martínez del Peral) v Kingdom of Spain (Agent:                   ments, applicable to the Community by virtue of Article 3 of
S. Ortiz Vaamonde): Application for a declaration that, by                  Council Regulation (EEC) No 3922/91 of 16 December
failing to adopt the laws, regulations and administrative                   1991 on the harmonisation of technical requirements and
provisions necessary to comply with Directive 97/7/EC of the                administrative procedures in the field of civil aviation (OJ
European Parliament and of the Council of 20 May 1997 on                    1991 L 373, p. 4), as amended by Commission Regulation
the protection of consumers in respect of distance contracts                (EEC) No 2176/96 of 13 November 1996 (OJ 1996 L 291,
(OJ 1997 L 144, p. 19), or, in any event, by failing to inform              p. 15) — the Court (Fourth Chamber), composed of: S. von
the Commission of such provisions, the Kingdom of Spain has                 Bahr, President of the Chamber, D.A.O. Edward and A. La
failed to fulfil its obligations under Article 15(1) of that                Pergola (Rapporteur), Judges; A. Tizzano, Advocate General;
directive, the Court (Second Chamber), composed of:                         R. Grass, Registrar, has made an order on 19 September 2002,
R. Schintgen, President of the Chamber, V. Skouris and                      in which it has ruled:
N. Colneric (Rapporteur), Judges; C. Stix-Hackl, Advocate
General; R. Grass, Registrar, has given a judgment on 28 No-                1.    Where a worker authorised to certify aircraft fit for service is
vember 2002, in which it:                                                         placed by his employer at the disposal of an approved
                                                                                maintenance organisation, the obligations flowing from Para-
                                                                                graph 35 of Code 145 of the Joint Aviation Requirements,
1.    Declares that by failing to adopt within the prescribed period              applicable in the Community by virtue of Article 3 of Directive
      the laws, regulations and administrative provisions necessary to            1999/42/EC of the European Parliament and of the Council
      comply with Directive 97/7/EC of the European Parliament                    of 7 June 1999 establishing a mechanism for the recognition of
      and of the Council of 20 May 1997 on the protection of                      qualifications in respect of the professional Council Regulation
      consumers in respect of distance contracts the Kingdom of Spain             (EEC) No 3922/91 of 16 December 1991 on the harmon-
      has failed to fulfil its obligations under Article 15(1) of that            ization of technical requirements and administrative procedures
      directive;                                                                  in the field of civil aviation, as amended by Commission
                                                                                Regulation No 2176/96 of 13 November 1996, apply to
                                                                                such an approved maintenance organisation.
2.    Orders the Kingdom of Spain to pay the costs.
                                                                            2.    Without prejudice to the fulfilment of the obligations placed
                                                                                upon an approved maintenance organisation by Paragraph 35
                                                                                of Code 145 of the abovementioned Joint Aviation Require-
( 1) OJ C 348 of 8.12.2001.
                                                                                ments, that provision does not preclude that, on the basis of
                                                                                national provisions which are more extensive, the existence is
                                                                                acknowledged of an obligation incumbent on an employer, not
                                                                                being an approved maintenance organisation, to furnish to a
 ---pagebreak--- C 19/10                 EN                      Official Journal of the European Communities                                      25.1.2003
       former employee, at his request, the documents relating to his      Chamber) of 26 October 2002 received at the Court Registry
       qualifications and professional experience gained during his        on 31 October 2002, for a preliminary ruling in the criminal
       employment.                                                         proceedings against Silvio Berlusconi on the following ques-
                                                                           tions:
( 1) OJ C 303, 27.10.2001.
                                                                           1.    Does Article 6 of Directive 68/151/EEC ( 1) on co-ordi-
                                                                                nation of safeguards which, for the protection of the
                                                                                interests of members and others, are required by Member
                                                                                States of companies within the meaning of the second
                                                                                paragraph of Article 58 of the Treaty, with a view
                                                                                to making such safeguards equivalent throughout the
Reference for a preliminary ruling by the Bundespat-                             Community concern not only cases of failure to publish
entgericht by order of that Court of 26 June 2002 in the                         the balance sheet and profit and loss account, but also
complaint proceedings of Deutsche Telekom AG against
                                                                                cases where those documents are published but their
           DKV Deutsche Krankenversicherung AG                                   contents are false, given that the harm to the interests of
                                                                                members and third parties is clearly greater in the latter
                          (Case C-367/02)                                        case? Is the directive intended in that respect to lay down
                                                                                a minimum level of protection at Community level
                           (2003/C 19/18)                                        leaving it to the Member States to put in place means of
                                                                                protection against the submitting of false balance sheets
                                                                                or the publishing of false company accounts?
Reference has been made to the Court of Justice of the
European Communities by order of the (Federal Patent Court)                2.    Do the criteria of effectiveness, proportionality and
of 26 June 2002, received at the Court Registry on 14 October                    dissuasiveness, which the penalties to be adopted by the
2002, for a preliminary ruling in the complaint proceedings                      Member States under Council Directive 68/151 must
of Deutsche Telekom AG against DKV Deutsche Krankenver-                          satisfy in order to be regarded as ‘appropriate’, refer to
sicherung AG on the following question:                                          the nature or type of penalty considered in the abstract,
                                                                                or rather to its application in practice having regard to
Do the words ‘association with the earlier trade mark’ in the                    the structural characteristics of the legal system within
second part of Article 4(1)(b) of the Trademarks Directive (1)                   which it takes effect?
apply to the case where the earlier trade mark is attributed to
the later trade mark, the later trade mark having been formed
by adding a well known company logo, or an element in a                    3.    Are the principles set out in Council Directive 78/660/
trade mark series belonging to the owner of the later trade                      EEC (2) of 25 July 1978 based on Article 54(3)(g) of the
mark, to the earlier trade mark, which is a one-word logo                        Treaty on the annual accounts of certain types of
which is neither the undertaking’s logo nor an element in a                      companies, Council Directive 83/349/EEC (3) of 13 June
trade mark series and is of average distinctiveness?                             1983 based on Article 54(3)(g) of the Treaty on consoli-
                                                                                dated accounts and Council Directive 90/605/EEC (4) of
                                                                                8 November 1990 amending Directive 78/660/EEC on
( 1) First Council Directive 89/104/EEC of 21 December 1988 to                   annual accounts and Directive 83/349/EEC on consoli-
     approximate the laws of the Member States relating to trade                 dated accounts as regards the scope of those directives,
     marks (OJ L 40 of 11.02.1989, p. 1).                                        upon which national measures relating to the drafting
                                                                                and contents of annual accounts and annual reports, in
                                                                                particular, of capital companies, must be based, to be
                                                                                interpreted as precluding a Member State from setting
                                                                                minimum thresholds below which inaccurate statements
                                                                                in annual accounts and annual reports relating to com-
                                                                                panies limited by shares, partnerships limited by shares
Reference for a preliminary ruling by the Tribunale di                           and limited liability companies are not punishable?
Milano, Prima Sezione penale by order of that court of
26 October 2002 in criminal proceedings against Silvio
                             Berlusconi
                                                                           (1 ) OJ, English Special Edition 1968 (I), p. 41.
                          (Case C-387/02)                                  (2 ) OJ 1978 L 222, p. 11.
                                                                           (3 ) OJ 1983 L 193, p. 1.
                           (2003/C 19/19)                                  (4 ) OJ 1990 L 317, p. 60.
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano,
Prima Sezione penale (Milan District Court, First Criminal


title: Action brought on 26 January 1996 by TEAM Srl and Centralne Biuro Projektowo-Badawcze Budownictwa Kolejowego (CBBBK KOLPROJECT) against the Commission of the European Communities (Case T-13/96)

text:
 13 . 4 . 96           EN                 Official Journal of the European Communities                               No C 108/11
on 27 February 1996 , the operative part of which is as              invitation to tender. The reasons given for this are
 follows :                                                           inadequate and entirely baseless. The applicants observe in
                                                                     this respect that the only change in practice to the new
 1 . the application for interim measures is dismissed;              procedure consisted in the exclusion of Kolprojekt from the
                                                                     short list. At the same time, however, the successful
                                                                     undertaking was recommended to allocate to Kolprojekt the
2,    costs are reserved.                                            role of subcontractor for up to 25 % of the amount of the
                                                                     offer .
                                                                     It follows that the contested acts — the decision to annul the
                                                                     procedure published on 13 June 1995 and the decision to
                                                                     put in motion a new procedure — do not achieve any of the
Action brought on 26 January 1996 by TEAM Sri and                    objective aims of general interest. On the contrary, they lead
Centralne Biuro Projektowo-Badawcze Budownictwa                      to an unjustified delay in awarding the contract as well as to
Kolejowego ( CBBBK KOLPROJECT) against the                           serious harm for the applicant undertakings .
          Commission of the European Communities
                        ( Case T-13/96 )                            The acts in question must therefore be annulled on the
                          ( 96/C 108/24                             grounds of misuse of powers and manifest breach of the
                                                                    principle of sound administration by the Commission .
                 (Language of the case: Italian)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 26 January 1996
by TEAM Sri and Centralne Biuro Projektowo-Badawcze
Budownictwa Kolejowego ( CBBBK Kolprojekt), whose                   Action brought on 1 February 1996 by Cityflyer Express
registered office is at Warsaw (Poland ), represented by                  Limited against the Commission of the European
                                                                                Communities
Antonio Tizzano and Gian Michele Roberti, of the Naples
Bar, with an address for service at 36 Place du Grand Sablon,                                Case T- 1 6/96 )
Brussels .                                                                                ( 96/C 108/25 )
The applicant claims that the Court should :
                                                                                (Language of the case: English)
— uphold the application for annulment of the decision of
     the Commission, contained in a letter of 16 November           An action against the Commission of the European
     1995 from the Head of Unit of the Directorate-General,         Communities was brought before the Court of First
     External Relations, Directorate B, annulling the award         Instance of the European Communities on 1 February 1996
     procedure concerning the 'Feasibility study for the            by Cityflyer Express Limited, represented by Charles Price,
     modernization of railway junction in Warsaw on the             with an address for service in Luxembourg at the Chambers
     E-20 TEN line ', and the subsequent tender notice of           of Lucy Dupong, 14a, rue des Bains .
     4 December 1995 , which also concerned the 'Feasibility
     study for the modernization of railway junction in
     Warsaw on the E-20 TEN line ',                                 The applicant claims that the Court should :
— uphold the application for compensation for the harm              — annul the Commission decision of 26 July 1995
     suffered by the applicants, and                                     concerning aid granted by the Flemish Region to the
                                                                         Belgian airline Vlaamse Luchttransportmaatschappij
— order the Commission to pay the costs .                                NV,
Pleas in law and main arguments adduced in support:                 — order the Commission to pay the costs .
The applicants, a design company, active in Italy and
abroad, which operates in the construction, management              Pleas in law and main arguments adduced in support:
and engineering maintenance sector, is a Polish share capital
company whose object is the provision of design services in         The applicant, an airline company registered in England,
the railway sector, complain that the defendant, instead of         which operates scheduled flights out of London Gatwick
proceeding to award the contract, notified in the context of        to Antwerp, Dublin, Diisseldorf, Guernsey, Jersey, Leeds/
the Phare programme, concerning the 'Feasibility Study for          Bradford , Newcastle and Rotterdam, challenges the
the Modernization of railway junction in Warsaw on the              Commission Decision of 26 July 1995 , concerning aid
E-20 TEN line', decided to annul the procedure and open a           granted by the Flemish Region to the Belgian airline
new procedure . The companies invited to tender in the first        Vlaamse Luchttransportmaatschappij NV (VLM), in the
procedure were included in a short list attached to the             form of an interest-free loan of Bfrs 20 million . In its


title: Case T-28/06: Action brought on  24 January 2006  — RheinfelsQuellen H. Hövelmann v OHIM

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/33

         Action brought on 24 January 2006 — RheinfelsQuellen H. Hövelmann v OHIM
   (Case T-28/06)
   (2006/C 86/67)
   Language in which the application was lodged: German
   Parties

      Applicant: RheinfelsQuellen H. Hövelmann GmbH & Co. KG (Duisburg, Germany) (represented by W. Kellenter and A. Lambrecht, Rechtsanwälte)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought
   The applicant claims that the Court should:

               —

               annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 November 2005 in Appeal No R 1179/2004-2;

               —

               order the defendant to pay the costs incurred by the applicant.

         Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘VOM URSPRUNG HER VOLLKOMMEN’ for goods in Classes 32 and 33 — Application No 2 806 875
   Decision of the Examiner: registration rejected
   Decision of the Board of Appeal: appeal rejected

      Pleas in law: breach of Article 7(1)(b) and (c) of Council Regulation No 40/94, since the trade mark does not consist of exclusively descriptive elements and is also not devoid of any distinctive character.


title: Case T-94/01: Action brought on 27 April 2001 by Astrid Hirsch against the European Central Bank.

text:
C 186/16              EN                     Official Journal of the European Communities                                     30.6.2001
In support of her claim the applicant alleges:                          Pleas in law and main arguments
—    Infringement of the selection notice, of essential pro-            The applicant seeks the annulment of the decision of the
     cedural requirements, and of the rules governing the               ECB of 25 September 2000 refusing her the benefit of an
     operation of selection boards (principle of independence);         educational allowance, and the decisions of the ECB of
                                                                        21 December 2000, rejecting the appellant’s administrative
—    The existence, in casu, of a manifest error of assessment;         review, and of 20 February 2000, rejecting the appellant’s
                                                                        grievance.
—    Breach of the obligation to provide reasons;
—    Infringement of the principle of transparency;                     The educational allowance was refused to the applicant on the
                                                                        basis of Article 19 of the Conditions of Employment of the
                                                                        staff of the ECB. According to that article, members of the staff
—    Infringement of the principle of equal treatment.
                                                                        of the ECB who are entitled to an expatriation allowance of
                                                                        16 % are also entitled to an educational allowance for each
                                                                        dependent child until the establishment of a European school
                                                                        in the Frankfurt area. The applicant has the German nationality
                                                                        and is therefore not entitled to an expatriation allowance.
                                                                        According to the ECB she is for this reason also not entitled to
                                                                        an educational allowance for her oldest child.
                                                                        The applicant claims:
                                                                        —     that this difference in treatment between staff members
Action brought on 27 April 2001 by Astrid Hirsch against                      entitled to an expatriation allowance and those who are
                 the European Central Bank.                                   not entitled to an expatriation allowance, is unjustified
                                                                              and therefore constitutes a breach of the principle of non-
                                                                              discrimination.
                         (Case T-94/01)
                                                                        —     that the administration has failed in its obligation of
                                                                              due care since it has not taken into consideration the
                        (2001/C 186/24)                                       applicant’s situation.
                  (Language of the case: English)
An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 27 April 2001 by Astrid Hirsch, resident in Germany,                 Action brought on 4 May 2001 by Gérard Goget, Pierre
represented by Georges Vandersanden and Laure Levi, of                  Huge and Emmanuel Gabolde v Court of Auditors of the
DeBacker Association, Brussels (Belgium).                                                   European Communities
The applicant claims that the Court should:                                                       (Case T-95/01)
—    annul the decision of the European Central Bank of                                          (2001/C 186/25)
     25 September 2000 refusing the applicant the benefit of
     the education allowance and therefore the reimbursement
     of the tuition fees that the applicant has to pay for                                 (Language of the case: French)
     the attendance of her son at the Internationale Schule
     Frankfurt and, if necessary, annul the decisions of the
     European Central Bank of 21 December 2000 rejecting                An action against the Court of Auditors of the European
     the applicant’s administrative review and of 20 February           Communities was brought before the Court of First Instance
     2000 rejecting the applicant’s grievance;                          on 4 May 2001 by Gérard Goget, residing in Hettange-Grande,
                                                                        France, Pierre Huge, residing in Bonnevoie, Grand Duchy of
—    order the ECB to reimburse the tuition fees amounting to           Luxembourg, and Emmanuel Gabolde, residing in Metz,
     EUR 11 370,00 for the school year 2000-2001 and of                 France, represented by the lawyer André Soulier, with an
     future tuition fees for the future school years, with an           address for service in Luxembourg.
     interest of 8 % per year from 1 of September of each year
     until the due payment, and order the ECB to reimburse              The applicants claim that the Court of First Instance should:
     the installation fees amounting to EUR 5 922 with an               —     Annul the decision of 22 February 2001 with all the
     interest of 8 % per year from 1 of September 2001;                       consequences in law;
—    order the ECB to pay the costs.                                    —     Order the defendant to pay the costs.


title: Case C-60/15 P: Judgment of the Court (Fifth Chamber) of 13 July 2017 — Saint-Gobain Glass Deutschland GmbH v European Commission (Appeal — Right of access to documents held by European Union institutions — Regulation (EC) No 1049/2001 — Exceptions to the right of access — Article 4(3), first subparagraph — Protection of the decision-making process of those institutions — Environment — Aarhus Convention — Regulation (EC) No 1367/2006 — Article 6(1) — Public interest in the disclosure of environmental information — Information communicated by the German authorities to the European Commission pertaining to installations situated on German territory and concerned by the Union legislation on the scheme for greenhouse gas emission allowance trading — Partial refusal of access)

text:
               4.9.2017

               EN

               Official Journal of the European Union

               C 293/2

         Judgment of the Court (Fifth Chamber) of 13 July 2017 — Saint-Gobain Glass Deutschland GmbH v European Commission
   (Case C-60/15 P) (1)

   ((Appeal - Right of access to documents held by European Union institutions - Regulation (EC) No 1049/2001 - Exceptions to the right of access - Article 4(3), first subparagraph - Protection of the decision-making process of those institutions - Environment - Aarhus Convention - Regulation (EC) No 1367/2006 - Article 6(1) - Public interest in the disclosure of environmental information - Information communicated by the German authorities to the European Commission pertaining to installations situated on German territory and concerned by the Union legislation on the scheme for greenhouse gas emission allowance trading - Partial refusal of access))
   (2017/C 293/02)
   Language of the case: German

      Parties

      Appellant: Saint-Gobain Glass Deutschland GmbH (represented by: S. Altenschmidt and P.-A. Schütter, Rechtsanwälte)

      Other party to the proceedings: European Commission (represented by: H. Krämer and by F. Clotuche-Duvieusart and P. Mihaylova, acting as Agents)

      Operative part of the judgment

   The Court:

               1)

               Sets aside the judgment of the General Court of the European Union of 11 December 2014, Saint-Gobain Glass Deutschland v Commission (T-476/12, not published, EU:T:2014:1059);

               2)

               Annuls the Commission’s decision of 17 January 2013 refusing full access to the list communicated by the Federal Republic of Germany to the Commission, under the procedure provided for in Article 15(1) of Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council, to the extent that that document contains information relating to certain installations of Saint-Gobain Glass Deutschland GmbH, situated on German territory, relating to provisional allocations and activities and capacity levels in relation to carbon dioxide (CO2) emissions between 2005 and 2010, the efficiency of the installations and the annual emission quotas provisionally allocated for the period between 2013 and 2020;

               3)

               Orders the European Commission to pay the costs incurred by Saint-Gobain Glass Deutschland GmbH at first instance and in the present appeal proceedings.

      (1)  OJ C 138, 27.4.2015.


title: Case T-373/04: Action brought on 12 September 2004 by Eric Mathias Fries Guggenheim against European Centre for the Development of Vocational Training (CEDEFOP)

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/25

         Action brought on 12 September 2004 by Eric Mathias Fries Guggenheim against European Centre for the Development of Vocational Training (CEDEFOP)
   (Case T-373/04)
   (2004/C 284/49)
   Language of the case: French
   An action against the European Centre for the Development of Vocational Training (CEDEFOP) was brought before the Court of First Instance of the European Communities on 12 September 2004 by Eric Mathias fries Guggenheim, residing in Thessaloniki (Greece), represented by Marc-Albert Lucas, lawyer.
   The applicant claims that the Court should:

               —

               declare unlawful the decision of 17 December 2003 of the Director of the Centre on the improvement of Coordination and the Efficiency in Cedefop (A4), in so far as it makes no provision for a call for candidatures for posts as ‘Head of Area’ or for a selection procedure for candidates for those posts;

               —

               annul the decisions of 28 January 2004 of the Director of Cedefop to appoint certain persons as ‘Head of Area’ or ‘Acting Head of Area’;

               —

               in so far as necessary, annul the decision of 1 June of the Appeal Committee of Cedefop (A17) rejecting his administrative complaint of 6 May 2004 against the earlier contested decisions;

               —

               order Cedefop to pay the costs.

         Pleas in law and main arguments
   The applicant, a member of the temporary staff of Cedefop, objects to the decisions of the Director of Cedefop of 28 January 2004 appointing certain persons as ‘Head of Area’ or ‘Acting Head of Area’.
   The applicant relies on a breach of Article 7(1) and (2) of the Staff Regulations and of the first paragraph of Article 10 of the Conditions of Employment of other servants of the European Communities, in that the servants of the Centre appointed as ‘Head of Area’ were assigned to new posts at a high level requiring specific qualifications without a comparative examination of their qualifications and those of the other officials or servants of the Centre.
   In support of this plea, the applicant claims that a call for candidatures and the selection of candidates for certain posts may be required not only under Articles 4, 29 and 45 of the Staff Regulations, when vacant posts are to be filled by transfer, promotion or competition, but also by virtue of the interest of the service, to which all reassignment measures are subject, pursuant to Article 7 of the Staff Regulations.


title: Case C-354/12 P: Appeal brought on 25 July 2012 by Asa Sp. z o.o. against the judgment of the General Court (Third Chamber) delivered on 22 May 2012 in Case T-110/11 Asa v OHIM — Merck (FEMIFERAL)

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/22

         Appeal brought on 25 July 2012 by Asa Sp. z o.o. against the judgment of the General Court (Third Chamber) delivered on 22 May 2012 in Case T-110/11 Asa v OHIM — Merck (FEMIFERAL)
   (Case C-354/12 P)
   2012/C 295/40
   Language of the case: Polish

      Parties

      Appellant: Asa Sp. z o.o. (represented by: M. Chimiak, adwokat)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

               —

               set aside the contested judgment of the General Court of the European Union delivered on 22 May 2012 in Case T-110/11;

               —

               refer the case back to the General Court for re-examination;

               —

               order the Office to pay the costs of the proceedings before the Court of Justice.

      Pleas in law and main arguments

   The appellant alleges that the General Court of the European Union infringed Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (1) by failing to have regard to the legal criteria of essential importance for the application of that provision, and by committing manifest errors in the assessment of those criteria in the circumstances of the present case.
   Thus, the appellant alleges that the General Court did not apply correctly the interpretation relating to the criterion of the average consumer, a test which is relevant on the facts of the present case. The appellant further alleges that the General Court misappraised the inherent distinctive character of the earlier marks FEMINATAL, although the appellant submitted in its application to the General Court that the Board of Appeal of OHIM did not examine that question diligently and exhaustively. The appellant also takes the view that the General Court misappraised the trade marks’ visual and conceptual similarity. Finally, the appellant alleges that the General Court misappraised the likelihood of deceiving the average consumer.
   Furthermore, the appellant alleges that the General Court infringed Article 9 of the Treaty on European Union through the application of other legal criteria in similar cases.

      (1)  OJ 2009 L 78, p. 1.


title: Case C-511/12: Order of the Court (Tenth Chamber) of 10 April 2014 (request for a preliminary ruling from the Tribunal Central Administraivo Norte — Portugal) — Joaquim Fernando Macedo Maia and Others v Fundo de Garantia Salarial, IP (Article 99 of the Rules of Procedure of the Court of Justice — Request for a preliminary ruling — Directive 80/987/EEC — Directive 2002/74/EC — Protection of employees in the event of the insolvency of their employer — Guarantee institutions — Limitation on the payment obligation of the guarantee institution — Salary claims falling due more than six months before the commencement of legal proceedings seeking a declaration of the employer’s insolvency)

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/2

         Order of the Court (Tenth Chamber) of 10 April 2014 (request for a preliminary ruling from the Tribunal Central Administraivo Norte — Portugal) — Joaquim Fernando Macedo Maia and Others v Fundo de Garantia Salarial, IP
   (Case C-511/12) (1)

   ((Article 99 of the Rules of Procedure of the Court of Justice - Request for a preliminary ruling - Directive 80/987/EEC - Directive 2002/74/EC - Protection of employees in the event of the insolvency of their employer - Guarantee institutions - Limitation on the payment obligation of the guarantee institution - Salary claims falling due more than six months before the commencement of legal proceedings seeking a declaration of the employer’s insolvency))
   2014/C 261/02
   Language of the case: Portuguese

      Referring court

   Tribunal Central Administraivo Norte

      Parties to the main proceedings

      Applicants: Joaquim Fernando Macedo Maia, António Pereira Teixeira, António Joaquim Moreira David, Joaquim Albino Moreira David

      Defendant: Fundo de Garantia Salarial, IP

      Operative part of the order

   Council Directive 80/987/EEC of 20 October 1980 relating to the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC of the European Parliament and the Council of 23 September 2002, must be interpreted as not precluding national legislation which does not guarantee salary claims falling due more than six months preceding the initiation of insolvency proceedings against the employer, even though the employees brought, before the beginning of that period, legal proceedings against their employer with a view to obtaining a judicial determination of the amount outstanding and an enforcement order to recover those sums.

      (1)  OJ C 26, 26.1.2013.


title: Case T-193/12: Action brought on 8 May 2012 — MIP Metro v OHIM — Holsten-Brauerei (H)

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/26

         Action brought on 8 May 2012 — MIP Metro v OHIM — Holsten-Brauerei (H)
   (Case T-193/12)
   2012/C 194/44
   Language in which the application was lodged: German

      Parties

      Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Holsten-Brauerei AG (Hamburg, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2012 in Case R 2340/2010-1 on the basis of incompatibility with Article 8(1)(b) of Regulation (EC) No 40/94 on the Community Trade Mark, in so far as it upheld the opposition against the extension of protection of international registration No 984 017;

               —

               order the defendant to pay the costs, including the costs of the appeal procedure.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the international registration which has effect in the European Union of a figurative mark representing an escutcheon with the letter ‘H’ for goods in Class 32 — No 984 017

      Proprietor of the mark or sign cited in the opposition proceedings: Holsten-Brauerei AG

      Mark or sign cited in opposition: the German figurative mark representing a knight on horseback with a shield bearing the letter ‘H’ for goods in Class 32

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: infringement of Article 8(1)(b) of Regulation No 207/2009


title: Case T-509/11: Action brought on 28 September 2011 — Makhlouf v Council

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/31

         Action brought on 28 September 2011 — Makhlouf v Council
   (Case T-509/11)
   2011/C 340/61
   Language of the case: French

      Parties

      Applicant: Mohammad Makhlouf (Damascus, Syria) (represented by: C. Rygaert and G. Karouni, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul Council Implementing Decision 2011/488/CFSP of 1 August 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria, in so far as it applies to Mr Mohammad (Mohammed) Makhlouf;

               —

               order the Council of the European Union to pay the costs, pursuant to Articles 87 and 91 of the Rules of Procedure of the General Court.

      Pleas in law and main arguments

   In support of the action, the applicant relies on seven pleas in law, essentially identical or similar to those relied on in Case T-383/11 Makhlouf v Council. (1)

      (1)  OJ C 282, 24.9.2011, p. 30.


title: Case T-4/10: Action brought on 7 January 2010 — Al Saadi v Commission

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/46

         Action brought on 7 January 2010 — Al Saadi v Commission
   (Case T-4/10)
   2010/C 51/84
   Language of the case: English

      Parties

      Applicant: Faraj Faraj Hassan Al Saadi (Leicester, United Kingdom) (represented by: J. Jones, Barrister, Mudassar Arani, Solicitor)

      Defendant: European Commission

      Form of order sought

               —

               to annul Commission Regulation (EC) No 954/2009 of 13 October 2009 insofar as it concerns the applicant;

               —

               to order the European Commission to pay the applicant’s costs.

      Pleas in law and main arguments

   By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Commission Regulation (EC) No 954/2009 of 13 October 2009 (1) amending for the 114th time Council Regulation (EC) No 881/2002 (2) imposing certain specific restrictive measures directed against persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, by virtue of which the applicant was placed on the list of persons and entities whose funds and economic resources are frozen.
   The applicant’s name was initially added to Annex I of Council Regulation (EC) No 881/2002 by Commission Regulation (EC) No 2049/2003 of 20 November 2003 (3), which was later replaced by Commission Regulation (EC) No 46/2008 of 18 January 2008 (4). By its judgement of 3 December 2009 in Joint Cases Hassan v Council and the Commission (C-399/06 P) and Ayadi v Council (C-403/06 P) (5), the Court of Justice of the European Union annulled Council Regulation (EC) No 881/2002, as amended by Regulation (EC) No 46/2008, insofar as it concerns the applicant.
   In support of its action, the applicant relies on the following pleas in law:

               First, the applicant claims that the contested regulation infringes the applicant’s rights of defence, including the right to be heard and the right to effective judicial protection, and that it fails to remedy the infringements of those rights. Moreover, it is submitted that the Commission failed to provide evidence justifying the freeze of the applicant’s assets thereby preventing the applicant from defending himself with regard to this evidence.

               Second, the applicant contends that the Commission failed to provide convincing reasons for maintaining the asset freeze against the applicant, in violation of its obligation under Article 296 TFEU.

               Third, the applicant claims that the Commission failed to undertake an assessment of all relevant facts and evidence in deciding whether to enact the contested regulation and therefore manifestly erred in its assessment. The applicant further claims that he has never engaged in any form of terrorism related activity, or that any form of financial sanctions or preventive measures against him is necessary.

               Fourth, the applicant submits that the indefinite restrictions of the applicant’s right to property imposed by the contested regulation amount to a disproportionate and intolerable interference with the applicant’s right to respect for property which is not justified by compelling evidence.

      (1)  Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2009 L 269, p. 20)

      (2)  Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9)

      (3)  Commission Regulation (EC) No 2049/2003 of 20 November 2003 amending for the 25th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 (OJ 2003 L 303, p. 20)

      (4)  Commission Regulation (EC) No 46/2008 of 18 January 2008 amending for the 90th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2008 L 16, p. 11)

      (5)  Judgment of the Court of Justice of 3 December 2009, Hassan v Council and the Commission (C-399/06 P) and Ayadi v Council (C-403/06 P), not yet published in the ECR


title: Order of the Court of Justice (Fourth Chamber) of 5 December 2002 in Case C-461/01 P: Polyxeni Tessa and Andreas Tessas v Council of the European Union (Appeal — State aid — Decision adopted on the basis of the third subparagraph of Article 93(2) of the EC Treaty (now the third subparagraph of Article 88(2) EC — Application for annulment — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
C 101/12                 EN                           Official Journal of the European Union                                             26.4.2003
5.    Having regard to Article 8(2)(b) of Council Directive 75/439/           The reference for a preliminary ruling made by the Tribunale di Biella
      EEC of 16 June 1975 on the disposal of waste oils, as amended           by order of 18 October 2001 is inadmissible.
      by Council Directive 87/101/EEC of 22 December 1986, the
      shipment of waste oils containing more than 50 ppm of PCB
      for use as a fuel constitutes illegal traffic in waste within the       (1 ) OJ C 84 of 6 April 2002.
      meaning of Article 26(1)(e) of Regulation No 259/93, to
      which the competent authority is required to object on the
      ground solely of that illegality, without reference to any of the
      specific provisions of that regulation setting out the objections
      which Member States may raise to waste shipments.
                                                                                ORDER OF THE COURT OF JUSTICE
( 1) OJ C 335 of 25.11.2000.
                                                                                (Fourth Chamber)
                                                                                of 5 December 2002
                                                                              in Case C-461/01 P: Polyxeni Tessa and Andreas Tessas v
                                                                                Council of the European Union ( 1)
                     ORDER OF THE COURT                                       (Appeal — State aid — Decision adopted on the basis of the
                                                                              third subparagraph of Article 93(2) of the EC Treaty (now
                                                                              the third subparagraph of Article 88(2) EC — Application
                         (Fourth Chamber)                                     for annulment — Appeal in part manifestly inadmissible
                                                                                and in part manifestly unfounded)
                        of 25 February 2003                                                             (2003/C 101/21)
in Case C-445/01 (reference for a preliminary ruling from                                          (Language of the case: Greek)
the Tribunale di Biella): Roberto Simoncello, Piera Boerio
              v Direzione Provinciale di Lavoro (1)                           (Provisional translation; the final translation will be published in the
                                                                                European Court Reports)
(Freedom of establishment — Freedom of movement for
workers — Public undertaking — Requirements concerning
               hiring of workers — Inadmissibility)                           In Case C-461/01 P, Polyxeni Tessa and Andreas Tessas,
                                                                              residing in Larissa (Greece), (lawyer: A. Tessas) — appeal
                                                                              against the order of the Court of First Instance of the European
                           (2003/C 101/20)                                    Communities (Fourth Chamber Extended Composition) of
                                                                              11 September 2001 in Case T-270/99 Tessa and Tessas v
                                                                              Council [2001] ECR II-2401, and seeking the annulment of
                     (Language of the case: Italian)                          that order, the other parties to the proceedings being: the
                                                                              Council of the European Union, (Agents: J. Carbery and
                                                                              D. Zahariou), and the Hellenic Republic, (Agents: I. Chalkias
(Provisional translation; the definitive translation will be published        and P. Mylonopoulos), — the Court of Justice (Fourth Chamb-
                    in the European Court Reports)                            er), composed of M. Timmermans, (Judge-Rapporteur), Presi-
                                                                              dent of the Chamber, D.A.O. Edward and S. von Bahr, Judges;
                                                                              Advocate General F.G. Jacobs; Registrar: R. Grass, made an
                                                                              order on 5 December 2002, the operative part of which is as
                                                                              follows:
In Case C-445/01: reference to the Court under Article 234
EC from the Tribunale di Biella (Italy) for a preliminary ruling
in the proceedings pending before that court between Roberto                  1.    The appeal is dismissed.
Simoncello, Piera Boerio and Direzione Provinciale di Lavoro
— on the interpretation of Articles 48 and 52 of the EC Treaty                2.    Ms Tessa and Mr Tessas will bear their own costs and pay
(now, after amendment, Articles 39 EC and 43 EC), and                               those of the Council. The Hellenic Republic will bear its own
Article 90 of the EC Treaty (now Article 86 EC) — the                               costs.
Court (Fourth Chamber), composed of: C.W.A. Timmermans
(Rapporteur), President of the Chamber, A. La Pergola and
S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate                         (1 ) OJ C 17 of 19.1.2002.
General; R. Grass, Registrar, has made an order on 25 February
2003, in which it has ruled:


title: Action brought on 4 November 1996 by Georges Berthu against the Commission of the European Communities (Case T-175/96)

text:
 11.1.97              I EN                 Official Journal of the European Communities                                  No C 9/ 19
 Action brought on 4 November 1996 by Georges Berthu                  Action brought on 8 November 1996 by Mario
    against the Commission of the European Communities                Costacurta against the Commission of the European
                                                                                Communities
                         ( Case T-175/96 )
                                                                                ( Case T- 177/96 )
                            ( 97/C 9/34
                                                                                ( 97/C 9/35 )
                 (Language of the case: French)
                                                                                (Language of the case: French)
 An action against the Commission of the European
                                                                      An action against the Commission of the European
 Communities was brought before the Court of First
                                                                      Communities was brought before the Court of First
 Instance of the European Communities on 4 November
                                                                      Instance of the European Communities on 8 November
 1996 by Georges Berthu, residing at Chelles ( France ),
                                                                      1996 by Mario Costacurta, residing in Luxembourg,
 represented by Alexandre Varaut, of the Paris Bar.
                                                                      represented by Nicolas Decker, of the Luxembourg Bar,
                                                                      with an address for service in Luxemburg at the latter's
The applicant claims that the Court should:                           Chambers, 16 avenue Marie-Therese.
— declare unlawful the decision of the Commission of                  The applicant claims that the Court should :
      16 October 1996 proposing to the Council a
      Regulation laying down a number of provisions                   — annul the decision of the Commission 's administration
      relating to the introduction of the European currency.              of 14 November 1995 , confirmed by express decision
                                                                          of the Commission of 22 July 1996, refusing the
Pleas in law and main arguments adduced in support:                       applicant's requests for transfers of Bfrs 60 000 per
                                                                          month, with application of the weightings for Zaire,
                                                                          for the period from March 1993 to December 1995 ,
The applicant, a Member of the European Parliament, is                    and for transfers of Bfrs 1 00 000 for the period from
opposed to the change of name of the future European                      January to August 1996,
currency from ecu to Euro, as mentioned in a proposal for
a Council Regulation laying down a number of provisions
relating to the introduction of the Euro, Article 2 of which          — consequently, order the Commission to pay the
provides that 'from 1 January 1999, all references to the                 applicant the balance due when those weightings are
ecu, within the meaning of Article 109g of the EC Treaty                  applied, amounting in total to Bfrs 4 075 352, together
. . . shall be replaced by a reference to the Euro at the rate            with interest at the legal rate with effect from
of Euro 1 for ecu 1 '.                                                    16 February 1996 , the date of the complaint which he
                                                                          submitted     under      Article  90   (2) of  the   Staff
                                                                          Regulations,
The applicant claims that the change of name of the
European currency constitutes, in legal terms, a review of            — order the Commission to pay all expenses and costs
the Treaty which cannot be carried out according to the                   incurred in relation to the proceedings.
procedure chosen by the Commission's proposal for a
Regulation, namely, that of Article 235 of the Treaty.                Pleas in law and main arguments adduced in support:
Furthermore, in the French version of the Treaty, the
European currency is referred to as the 'Ecu' and that
word is not a series of initials since, in such a case, it            Following his assignment as of 16 February 1993 to the
                                                                      Commission's delegation to Kinshasa ( Zaire ), the
should have been written in upper case. Moreover, if it did
stand for 'European currency unit', there could not be an             applicant took up his duties as administrative and
accent over the letter ' E' in French .                               financial assistant on 26 March 1993 . His assignment to
                                                                      Zaire ended on 31 August 1996 .
The applicant claims, as an additional ancillary point, that          By letter of 22 July 1996 from the Director-General of
the change of name in question conceals more serious                 Personnel and Administration, the applicant's request for
breaches of the letter or spirit of the Treaty. According to         application of the weightings over that period was
the applicant, the name 'ecu' was linked, in the wording             expressly refused.
of Article 105 et seq. of the Treaty, to a relatively uniform
monetary system in which all the Member States                       The applicant contests the decision refusing application of
participated, subject to derogations enabling them to                the weightings to the transfer of part of his salary to
remain outside it .
                                                                     Kinshasa, alleging that it infringed Articles 12 and 13 of
                                                                     Annex X to the Staff Regulations .
On the other hand, the name 'Euro' runs the risk of being
associated with a different system, as yet not totally               The applicant maintains that the Commission impaired his
defined, but of which it is known that the technical                 fundamental and legitimate pecuniary rights, since he
provisions will not coincide with that of its predecessor. In        personally suffered a very considerable loss of purchasing
particular, the future 'Euro' would bring together                   power. Furthermore, he argues that in his regard the
Members who are radically different from those whose                 Commission failed to fulfil its duty to have regard for the
currencies constitute the ecu basket.                                welfare of officials : first, by publishing the weightings for
                                                                     the period from March 1993 to June 1993 30 months late


title: Judgment of the Court (Sixth Chamber) of 17 October 2002 in Case C-138/00 (Reference for a preliminary ruling from the Verwaltungsgerichtshof): Solida Raiffeisen Immobilien Leasing GmbH, Tech Gate Vienna Wissenschafts- und Technologiepark GmbH v Finanzlandesdirektion für Wien, Niederösterreich und Burgenland (Directive 69/335/EEC — Indirect taxes on the raising of capital — Capital duty — Contribution of assets of any kind — Meaning — Acquisition by a non-member of dividend certificates issued by a capital company)

text:
C 305/4                   EN                         Official Journal of the European Communities                                           7.12.2002
      —      detailed explanations showing that the Commission                                    JUDGMENT OF THE COURT
             possesses solid factual information and evidence providing
             grounds for suspecting such infringement on the part of                                       (Sixth Chamber)
             the undertaking concerned;
                                                                                of 17 October 2002
      —      as precise as possible an indication of the evidence sought,
             of the matters to which the investigation must relate and          in Case C-138/00 (Reference for a preliminary ruling from
             of the powers conferred on the Community investigators             the Verwaltungsgerichtshof): Solida Raiffeisen Immobili-
             and                                                                en Leasing GmbH, Tech Gate Vienna Wissenschafts-
                                                                                und Technologiepark GmbH v Finanzlandesdirektion für
                                                                                Wien, Niederösterreich und Burgenland ( 1)
      —      in the event that the assistance of the national authorities
             is requested by the Commission as a precautionary                  (Directive 69/335/EEC — Indirect taxes on the raising of
             measure, in order to overcome any opposition on the part           capital — Capital duty — Contribution of assets of any kind
             of the undertaking concerned, explanations enabling the            — Meaning — Acquisition by a non-member of dividend
             national court to satisfy itself that, if authorisation for the                 certificates issued by a capital company)
             coercive measures were not granted on precautionary
             grounds, it would be impossible, or very difficult, to                                         (2002/C 305/05)
             establish the facts amounting to the infringement.
                                                                                (Language of the case: German)
3.    On the other hand, the national court may not demand that it
                                                                                (Provisional translation; the definitive translation will be published
      be provided with the evidence in the Commission’s file on which
                                                                                in the European Court Reports)
      the latter’s suspicions are based.
4.    Where the national court considers that the information                   In Case C-138/00: Reference to the Court under Article 234
      communicated by the Commission does not fulfil the require-               EC by the Verwaltungsgerichtshof (Austria) for a preliminary
      ments referred to in point 2 of this operative part, it cannot,           ruling in the proceedings pending before that court between
      without violating Article 14(6) of Regulation No 17 and                   Solida Raiffeisen Immobilien Leasing GmbH, Tech Gate Vienna
      Article 5 of the EC Treaty (now Article 10 EC), simply dismiss            Wissenschafts- und Technologiepark GmbH and Finanzlandes-
      the application brought before it. In such circumstances, it is           direktion für Wien, Niederösterreich und Burgenland, on the
      required as rapidly as possible to inform the Commission, or              interpretation of Article 5(1)(a) of Council Directive 69/335/
      the national authority which has brought the latter’s request             EEC of 17 July 1969 concerning indirect taxes on the raising
      before it, of the difficulties encountered, where necessary by            of capital (OJ, English Special Edition 1969 (II), p. 412), as
      asking for any clarification which it may need in order to carry          amended by the Act concerning the conditions of accession of
      out the review which it is to undertake. Not until any such               the Republic of Austria, the Republic of Finland and the
      clarification is forthcoming, or the Commission fails to take any         Kingdom of Sweden and the adjustments to the Treaties on
      practical steps in response to its request, may the national court        which the European Union is founded (OJ 1994 C 241, p. 21,
      in question refuse to grant the assistance sought on the ground           and OJ 1995 L 1, p. 1), the Court (Sixth Chamber), composed
      that, in the light of the information available to it, it is unable       of: J.-P. Puissochet, President of the Chamber, R. Schintgen
      to hold that the coercive measures envisaged are not arbitrary            (Rapporteur), V. Skouris, F. Macken and J.N. Cunha Rodrigues,
      or disproportionate to the subject-matter of those measures.              Judges; A. Tizzano, Advocate General; D. Louterman-Hubeau,
                                                                                Head of Division, for the Registrar, has given a judgment on
                                                                                17 October 2002, in which it has ruled:
5.    The information to be provided by the Commission to the
      national court may be contained either in the investigation               Article 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969
      decision itself or in the request made to the national authorities        concerning indirect taxes on the raising of capital, as amended by the
      under Article 14(6) of Regulation No 17, or indeed in an                  Act concerning the conditions of accession of the Republic of Austria,
      answer — even one given orally — to a question put by that                the Republic of Finland and the Kingdom of Sweden and the
      court.                                                                    adjustments to the Treaties on which the European Union is founded,
                                                                                is to be interpreted as meaning that the expression ‘assets of any kind
                                                                                contributed or to be contributed by the members’ used therein covers
                                                                                payments made to a capital company, which is increasing its assets
                                                                                by the issue of dividend certificates, by a non-member of that company
( 1) OJ C 149 of 27.5.2000.                                                     which wishes to acquire such certificates.
                                                                                (1 ) OJ C 176 of 24.6.2000.


No C 131 /24             EN                    Official Journal of the European Communities                                 26 . 4 . 97
Pleas in law and main arguments adduced in support:                       Partial removal from the register in Joined Cases T-366/94
                                                                                and Others (M
The applicants are all engaged in business as opticians                                              ( 97/C 131/56 )
and are, as required by law, members of the
Hoofdbedrijfsschap Ambachten (Trades and Crafts                           By order of 4 February 1997, the President of the First
Council ). That body, a public corporation, has imposed a                 Chamber of the Court of First Instance of the European
levy on the applicants pursuant to rules laid down in that                Communities has ordered the removal of Case T-20/95
regard, the proceeds from which are used for collective                   from the list of cases in Joined Cases T-366/94 and
advertising on behalf of the opticians' trade. In their                   Others : Hilde Diekmeier and Others v. Council of the
complaint to the Commission, the applicants maintain                      European Union and Commission of the European
that those ( non-notified ) rules are contrary to Article 92 of           Communities .
the EC Treaty.
                                                                          H OJ No C 74, 25 . 3 . 1995 .
They assert, in opposition to the contested decision, not
only that it infringes procedural requirements but also that
it is not open to the Commission to exempt aid measures
from the obligation to give prior notification, let alone to
do so with retroactive force ('). In addition, the
Commission has failed to take action in respect of an                            Removal from the register of Case T-199/95 (')
infringement of Article 54 ( 3 ) (h ) of the EC Treaty.                                              ( 97/C 131/57)
(') The provision in issue is the de minimis rule contained in the        By order of 22 January 1997 the President of the Third
    Community guidelines on State aid for small and medium               Chamber, Extended Composition, of the Court of First
    sized enterprises ( SMEs ) ( OJ No C 213 , 19 . 8 . 1992 , p. 2 ).
                                                                          Instance of the European Communities has ordered the
                                                                          removal from the register of Case T-199/95 : Nouveau
                                                                          Garage SA and Others v. Commission of the European
                                                                          Communities .
                                                                          (') OJ No C 351 , 30 . 12 . 1995 .
Partial removal from the register in Joined Cases T-77/93
                           and Others (')
                           ( 97/C 131/55 )
By order of 4 February 1997, the President of the First
Chamber, Extended Composition, of the Court of First                            Removal from the register of Case T-137/96 (')
Instance of the European Communities has ordered the                                                 ( 97/C 131/58 )
removal of Case T-77/93 from the list of Joined Cases
T-77/93 and Others : Werner Hiilseberg and Others v.                      By order of 23 January 1997 the President of the Fifth
Council of the European Union and Commission of the                       Chamber of the Court of First Instance of the European
European Communities.                                                     Communities has ordered the removal from the register of
                                                                          Case T-137/96 : Valio Oy v. Commission of the European
(') OJ No C 178 , 18 . 7. 1990.                                           Communities .
                                                                          (') OJ No C 318 , 26 . 10 . 1996 .


title: Judgment of the Court of First Instance of 15 January 2003 in Case T-171/01: Institut de l'audiovisuel et des télécommunications en Europe (IDATE) v Commission of the European Communities (Arbitration clause — Community Trans-European Telecommunications Networks Programme — Contract relating to the organisation of seminars on using Euro-ISDN — Allowable costs)

text:
22.3.2003                 EN                         Official Journal of the European Union                                                C 70/21
States of America, the Court of First Instance (Second Chamber,                   JUDGMENT OF THE COURT OF FIRST INSTANCE
Extended Composition), composed of: R. M. Moura Ramos,
President, V. Tiili, J. Pirrung, P. Mengozzi and A. W. H. Meij,
Judges, Registrar: J. Plingers, Administrator, has given a
judgment on 15 January 2003, in which it:                                                             of 15 January 2003
1.     Dismisses the applications as inadmissible;
                                                                             in Case T-171/01: Institut de l’audiovisuel et des télécom-
2.     Orders the applicants to bear their own costs and, jointly and        munications en Europe (IDATE) v Commission of the
       severally, the costs incurred by the Commission;                                           European Communities (1)
3.     Orders the interveners to bear their own costs.
                                                                             (Arbitration clause — Community Trans-European Telecom-
( 1) OJ C 79 of 10.3.2001 and C 3 of 5.1.2002.                               munications Networks Programme — Contract relating
                                                                             to the organisation of seminars on using Euro-ISDN —
                                                                                Allowable costs)
                                                                                (2003/C 70/34)
     JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 12 December 2002                                                       (Language of the case: French)
in Case T-110/01: Vedial SA v Office for Harmonisation in
the Internal Market (trade marks and designs) (OHIM) (1)
(Community trade mark — Opposition proceedings —
Earlier word mark SAINT-HUBERT 41 — Application for                          In Case T-171/01, Institut de l’audiovisuel et des télécommuni-
a figurative Community mark including the word ‘HUBERT’                      cations en Europe (IDATE), established in Montpellier (France),
— Relative grounds for refusal — Likelihood of confusion                     represented by H. Calvet, lawyer, with an address for service in
        — Article 8(1)(b) of Regulation (EC) No 40/94)                       Luxembourg, v Commission of the European Communities
                                                                             (Agents: M. Wolfcarius and M. Shotter and J.-L. Fagnart):
                                                                             Application for a declaration by the Court of First Instance
                             (2003/C 70/33)                                  that ‘allowable costs’ payable by the Commission, for the
                                                                             purposes of the contract concluded between the Commission
                      (Language of the case: French)                         and the applicant in the context of the Trans-European
                                                                             Telecommunications Networks Programme, covers the whole
                                                                             of the costs invoiced by the applicant’s subcontractors under
                                                                             that contract and, in the alternative, for compensation for the
In Case T-110/01: Vedial SA, a company established in Ludres,                loss allegedly suffered by the applicant as a consequence of the
France, represented by T. van Innis and G. Glas, Lawyers, with
                                                                             breaches committed by the Commission in the performance
an address for service in Luxembourg, against Office for
                                                                             of that contract, the Court of First Instance (Second Chamber),
Hamonisation in the Internal Market (trade marks and designs)                composed of: R. M. Moura Ramos, President, J. Pirrung and
(OHIM) (Agent: E. Joly), the other party to the proceedings
                                                                             A. W. H. Meij, Judges; H. Jung, Registrar, has given a judgment
before the board of appeal of the Office for Hamonisation in                 on 15 January 2003, in which it:
the Internal Market (trade marks and designs) being France
Distribution, a company established in Emerainville, France —
appeal against the decision of the first board of appeal of the
Office for Harmonisation in the Internal Market (trade marks                 1.     Declares that ‘allowable costs’ payable by the Commission, for
and designs) of 9 March 2001 (Case R 127/2000-1) — the                              the purposes of the contract at issue, covers the whole of the
Court of First Instance (Fourth Chamber), composed of                               costs invoiced to the applicant by its subcontractors under that
M. Vilaras, President, and V. Tiili and P. Mengozzi, Judges;                        contract.
D. Christensen, Administrator, for the Registrar, gave a judg-
ment on 12 December 2002, in which it:
                                                                             2.     Orders the Commission to pay the costs.
1.     Dismissed the action;
2.     Ordered each party to bear its costs.
                                                                             (1 ) OJ C 303 of 27.10.2001.
( 1) OJ C 227 of 11.8.01.


title: Action brought on 24 April 1996 by the Commission of the European Communities against the Kingdom of Spain (Case C-134/96)

text:
22 . 6 . 96           EN                 Official Journal of the European Communities                               No C 180/23
Action brought on 24 April 1996 by the Commission of the            implemented system of declaration can perform that
   European Communities against the Kingdom of Spain                function perfectly well .
                       ( Case C-134/96 )
                                                                    (') OJ No L 178 , 8 . 7. 1988 , p . 5 .
                         ( 96/C 180/49 )
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on
                                                                    Action brought on 24 April 1996 by the Commission of the
24 April 1996 by the Commission of the European                      European Communities against the Kingdom of Belgium
Communities, represented by Antonio Caeiro and Miguel
Diaz-Llanos La Roche, Legal Advisers, with an address for                                     Case C-135/96 )
service in Luxembourg at the office of Carlos Gomez de la                                      (96/C 180/50 )
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                    An action against the Kingdom of Belgium was brought
                                                                    before the Court of Justice of the European Communities on
The applicant claims that the Court should :                        24 April 1996 by the Commission of the European
                                                                    Communities , represented by Hendrik van Lier and
1 , declare that, by making subject to an administrative            Jean-Francis Pasquier, acting as Agents, with an address for
     authorization the physical exportation of money in             service in Luxembourg at the office of Carlos Gômez de la
     cash, notes or bearer cheques in pesetas for foreign           Cruz, Wagner Centre, Kirchberg.
     currency in an amount exceeding Pta 5 million, the
     Kingdom of Spain has failed to fulfil its obligations          The Commission of the European Communities claims that
     under Council Directive 88/361 /EEC ( 1 ) and, as from         the Court should :
     1 January 1994 , Articles 73b and 73d of the EC
     Treaty;                                                        — declare that, by failing within the prescribed period to
                                                                        adopt the laws , regulations and administrative measures
                                                                        necessary in order to comply with Commission Directive
2 , order the Kingdom of Spain to pay the costs .                       91 /659/EEC adapting to technical progress Annex I to
                                                                        Council Directive 76/769/EEC on the approximation of
Fleas in law and main arguments                                         the laws, regulations and administrative provisions of
                                                                        the Member States relating to restrictions on the
                                                                        marketing and use of certain dangerous substances and
Since Directive 88/361 /EEC does not set any specific limits,
                                                                        preparations ( asbestos ) ('), the Kingdom of Belgium has
the free movement of capital must be interpreted in the
                                                                        failed to fulfil its obligations under the Treaty,
broadest sense possible and not otherwise . That
interpretation may be extracted from the wording of the             — order the Kingdom of Belgium to pay the costs .
introduction to the nomenclature in Annex I to the
Directive . That conclusion is corroborated by the wording          Pleas in law and main arguments
of the new Article 73b of the EC Treaty which prohibits all
restrictions on the movement of capital between Member              The mandatory nature of the provisions of the third
States and between Member States and third countries .              paragraph of Article 189 of the EC Treaty is such as to
Article 73d 1 ( b ) nonetheless explains that Article 73b is to     oblige Member States to whom directives are addressed to
be without prejudice to the right of Member States to apply         adopt the measures necessary for the implementation of
the requisite measures to prevent infringement of national          such directives within the time limit prescribed therein. The
law and regulations, in particular in the field of taxation and     time limit in question expired, on 1 January 1993 but the
prudential supervision of financial institutions, or to lay         Kingdom of Belgium has not adopted the necessary
down procedures for the declaration of capital movements            measures .
for purposes of administrative or statistical information, or
to take measures which are justified on grounds of public           (') OJ No L 363 , 31 . 12 . 1991 , p . 36 .
policy or public security. The concept of 'requisite measure'
meets the requirement of proportionality which must
characterize any measure which involves an exception to a
freedom recognized by the Treaty .
                                                                    Reference for a preliminary ruling from the Tribunal de
                                                                    Grande Instance, Paris, by judgment of that court of
The Spanish authorities allege tax fraud, terrorism and             23 February 1996 in the case of The Scotch Whisky
money laundering, which is often linked to drugs                    Association v. La Martiniquaise LM, now called
trafficking, that is to say, problems which affect all the          Compagnie Financière Européenne de Prises de
Member States and which constitute a real public order              Participation ( Cofepp ), Prisunic SA, Centrale d'Achats et de
threat in those States . Once it is acknowledged that the                        Services Alimentaires SARL ( Casai )
objective is lawful, in order to ascertain whether the
requirement of authorization is proportional , methods of                                    ( Case C- 1 3 6/96 )
supervision which allow the objective itself of preventing                                     ( 96/C 180/51 )
infringement of national law and regulations, but which
hinder to a lesser extent movements of capital should be            Reference has been made to the Court of Justice of the
considered . The Commission is of the view that a properly          European Communities by a judgment of the Tribunal de


title: Case T-102/10: Order of the General Court of 9 April 2013 — Südzucker and Others v Commission (Agriculture — Sugar — Production levies — Partial annulment and declaration of nullity of Regulation (EC) No 1193/2009 after the action was brought — No need to adjudicate)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/43

         Order of the General Court of 9 April 2013 — Südzucker and Others v Commission
   (Case T-102/10) (1)

   (Agriculture - Sugar - Production levies - Partial annulment and declaration of nullity of Regulation (EC) No 1193/2009 after the action was brought - No need to adjudicate)
   2013/C 156/80
   Language of the case: German

      Parties

      Applicants: Südzucker AG Mannheim/Ochsenfurt (Mannheim, Germany); Agrana Zucker GmbH (Vienna, Austria); Südzucker Polska S.A. (Wroclaw, Poland); Raffinerie tirlemontoise (Brussels, Belgium) and Saint Louis Sucre SA (Paris, France) (represented by: H.-J. Prieß and B. Sachs, lawyers)

      Defendant: European Commission (represented by: P. Rossi and B. Schima, acting as Agents)

      Interveners in support of the applicant: Kingdom of Spain (represented initially by: F. Diez Moreno and subsequently by: A. Rubio Gonzâlez, abogados del Estado), and Republic of Lithuania (represented initially by: R. Janeckaitè and R. Krasuckaitè, and subseqeuntly by: R. Krasuckaitè and R. Makevičienè, acting as Agents)

      Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by: S. Behzadi-Spencer and S. Hathaway and subsequently by S. Behzadi-Spencer and A. Robinson, acting as Agents)

      Re:

   Annulment of Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 (OJ 2009 L 321, p. 1)

      Operative part of the order

               1.

               There is no longer any need to adjudicate in the present action.

               2.

               The European Commission shall bear its own costs and pay those of Südzucker AG Mannheim/Ochsenfurt, Agrana Zucker GmbH, Südzucker Polska S.A., Raffinerie tirlemontoise and Saint Louis Sucre SA.

               3.

               The Kingdom of Spain, the United Kingdom of Great Britain and Northern Ireland and the Republic of Lithuania shall bear their own costs.

      (1)  OJ C 113, 1.5.2010.


title: Case T-138/03: Action brought on 24 April 2003 by "U" and Others against the Council of the European Union and the Commission of the European Communities

text:
C 158/26               EN                         Official Journal of the European Union                                          5.7.2003
According to the applicant, the appointing authority commit-              The applicants submit that the defendants made a manifest
ted a manifest error of assessment in selecting a candidate who           error of assessment, misused their powers and violated the
did not satisfy the conditions set out in the notice of vacancy.          legitimate expectations of European consumers.
The appointment of that candidate should for that reason be
set aside. The applicant also asserts that there has been an
infringement of the principle of equal treatment and of the               The applicants maintain that the defendants made a manifest
rules governing the deliberations of the selection board. She             error of assessment in their management of the risks associated
claims that certain members of the selection board were                   with the BSE epidemic by not recommending a forward
not adequately qualified and/or lacked the impartiality and               scientific evaluation of the risk of BSE developing BSE in the
objectivity necessary for sitting on such a board. Furthermore,           various geographical areas of the Union at the time of
the staff reports of the applicant and of the candidate appointed         identification of the causes of the epidemic and of adoption of
evaluate their respective activities and profiles according to            the first protective measures in the United Kingdom. That
different criteria and provisions of the Staff Regulations. In            manifest error of assessment is also evidenced by the failure of
conclusion, the applicant submits that the appointing authority           the defendants to call for a retrospective study to shed light on
infringed the principle of equality as between men and women.             the cause of the infections subsequently recorded in France.
She argues that she was more meritorious than the candidate
who was appointed. Moreover, in the event that her merits
should be deemed to have been no more than equivalent to                  In support of their claims, the applicants submit that the
those of that candidate, priority ought to have been given to             defendants’ conduct in this case constitutes a misuse of powers
the applicant by reason of the fact that she is a woman.                  inasmuch as it was aimed only at protecting in an ill-considered
                                                                          manner the interests of the market and of the beef sector.
                                                                          According to the applicants, the defendants’ action consisted
                                                                          in dissuading the Member States from adopting unilateral
                                                                          protective measures.
Action brought on 24 April 2003 by ‘U’ and Others
                                                                          The applicants further maintain that the defendants’ internal
against the Council of the European Union and the
                                                                          disorganisation led their staff to underestimate the risks of BSE
         Commission of the European Communities
                                                                          developing and by that very fact constitutes a serious breach
                                                                          of the legitimate expectations of European consumers.
                          (Case T-138/03)
                         (2003/C 158/47)                                  The applicants draw attention to the abnormal and special
                                                                          nature of the damage suffered by them as a result of the non-
                   (Language of the case: French)                         natural cause of BSE and of the inapplicability of the European
                                                                          system of producers’ liability for defective products to the case
                                                                          in point.
An action against the Council of the European Union and the
Commission of the European Communities was brought
before the Court of First Instance of the European Communities
on 24 April 2003 by ‘U’ and Others, represented by François
Honnorat, lawyer.
The applicants claim that the Court should:
                                                                          Action brought on 28 April 2003 by Forum 187 against
                                                                                the Commission of the European Communities
—     order compensation for the non-material or material
      damage suffered by them as a consequence of the
      infection of their close relatives with BSE;                                                 (Case T-140/03)
—     order the defendants to pay the costs.
                                                                                (2003/C 158/48)
Pleas in law and main arguments                                                               (Language of the case: English)
The applicants all live in France and are victims, either
indirectly or as persons entitled under or through persons who
have died in France, of a ‘variant’ form of Creutzfeldt-Jakob             An action against the Commission of the European Communi-
disease. By this action, the applicants are lodging a claim for           ties was brought before the Court of First Instance of the
damages to compensate for the material or non-material                    European Communities on 28 April 2003 by Forum 187,
damage allegedly suffered as a consequence of the death of                Brussels, Belgium, represented by Mr A. Sutton and Mr
persons infected with BSE.                                                J. Killick, Barristers.