title: Case T-322/11: Action brought on 21 June 2011 — Morelli v OHIM — Brambilla (Partito della Libertà)

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/34

         Action brought on 21 June 2011 — Morelli v OHIM — Brambilla (Partito della Libertà)
   (Case T-322/11)
   2011/C 238/58
   Language in which the application was lodged: Italian

      Parties

      Applicant: Raffaello Morelli (Livorno, Italy) (represented by: G.Brenelli, lawyer

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

      Other party to the proceedings before the Board of Appeal: Michela Vittoria Brambilla (Milan, Italy

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the First Board of Appeal’s decision of 17 May 2011 and that of the Opposition Division of 14 May 2010;

               —

               declare that the applicant’s opposition to the application for registration of a trade mark No 6.203.012 is upheld and refuse the application for that mark;

               —

               order Ms Michela Vittoria Brambilli to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Michela Vittoria Brambilla.

      Community trade mark concerned: Figurative mark containing the word element ‘Partito della Libertà’ (application for registration No 5.6203.012), for goods and services in classes 9, 14, 16, 24, 25, 35, 36, 38, 41, 42 and 45.

      Proprietor of the mark or sign cited in the opposition proceedings: Raffaello Morelli

      Mark or sign cited in opposition: Domain name ‘partitodellaliberta.it’, assigned by the Autorità proposta all’assegnazione dei domini ‘it’ to Raffaello Morelli on 9 August 2004, which the opponents claimed was used in the course of trade for goods and services in classes 16, 35, 38, 41 and 45

      Decision of the Opposition Division: Opposition rejected.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: Misapplication of Article 8(4) of Regulation No 207/2009 on the Community trade mark, incorrect appraisal of ‘use in the course of trade’ with reference to a name used in the sphere of politics and incorrect appraisal of the documents proving business use of the earlier sign.


title: Judgment of the Court (Fifth Chamber) of 7 July 2005 in Case C-383/03: Reference for a preliminary ruling from the Verwaltungsgerichtshof in Ergül Dogan v Sicherheitsdirektion für das Bundesland Vorarlberg (EEC-Turkey Association — Free movement of workers — Decision No 1/80 of the Association Council — Article 6(1), third indent, and Article 6(2) — Duly registered as belonging to the labour market of a Member State — Criminal conviction — Prison sentence — Effect on right of residence)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/11

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 7 July 2005
   in Case C-383/03: Reference for a preliminary ruling from the Verwaltungsgerichtshof in Ergül Dogan v Sicherheitsdirektion für das Bundesland Vorarlberg (1)

   (EEC-Turkey Association - Free movement of workers - Decision No 1/80 of the Association Council - Article 6(1), third indent, and Article 6(2) - Duly registered as belonging to the labour market of a Member State - Criminal conviction - Prison sentence - Effect on right of residence)
   (2005/C 217/20)
   Language of the case: German
   In Case C-383/03: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgerichtshof (Austria), made by decision of 4 September 2003, received at the Court on 12 September 2003, in the proceedings between Ergül Dogan and Sicherheitsdirektion für das Bundesland Vorarlberg — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, R. Schintgen (Rapporteur) and P. Kūris, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 7 July 2005, in which it ruled:
   A Turkish worker who enjoys the right of free access to any paid employment of his choice under the third indent of Article 6(1) of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, does not forfeit that right because he is not in employment during his imprisonment, even for several years, if his absence from the labour market of the host Member State is only temporary.
   The employment rights conferred by that provision on the person concerned and the concomitant right of residence may be limited only on grounds of public policy, public security and public health pursuant to Article 14(1) of Decision No 1/80, or on account of the fact that the Turkish national concerned has failed to find new paid employment within a reasonable time after his release.

      (1)  OJ C 35 of 7.2.2004.


title: Case C-200/06: Reference for a preliminary ruling from the Tribunal de Première Instance de Bruxelles lodged on  4 May 2006  — Raffinerie Tirlemontoise SA v Bureau d'Intervention et de Restitution Belge (BIRB)

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/16

         Reference for a preliminary ruling from the Tribunal de Première Instance de Bruxelles lodged on 4 May 2006 — Raffinerie Tirlemontoise SA v Bureau d'Intervention et de Restitution Belge (BIRB)
   (Case C-200/06)
   (2006/C 165/28)
   Language of the case: French
   Referring court
   Tribunal de Première Instance de Bruxelles
   Parties to the main proceedings

      Applicant: Raffinerie Tirlemontoise SA

      Defendant: Bureau d'Intervention et de Restitution Belge (BIRB)
   Questions referred

               1)

               Does Commission Regulation 314/2002 (1) provide, with regard to calculation of the production levy, for exclusion from the financing needs of the quantities of sugar contained in processed products which are exported without export refunds? Is this legislation invalid in the light of Article 15 of Council Regulation (EC) No 1260/2001 on the common organisation of the markets in the sugar sector (2) and in the light of the principles of proportionality and non-discrimination?

               2)

               Do Commission Regulations Nos 1775/2004 (3), 1762/2003 (4), 1837/2002 (5), 1993/2001 (6) and 2267/2000 (7) lay down a production levy for sugar calculated on the basis of the ‘average loss’ per tonne exported, which does not take into account the quantities exported without a refund, although these quantities are included in the total used to evaluate the overall loss to be financed? Are these Regulations invalid in the light of Commission Regulation No 314/2002, Article 15 of Council Regulation No 1260/2001 and the principle of proportionality?

      (1)  Commission Regulation (EC) No 314/2002 of 20 February 2002 laying down detailed rules for the application of the quota system in the sugar sector (OJ 2002 L 50, p. 40)

      (2)  Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1)

      (3)  Commission Regulation (EC) No 1775/2004 of 14 October 2004 setting the production levies in the sugar sector for the 2003/04 marketing year (OJ 2004 L 316, p. 64)

      (4)  Commission Regulation (EC) No 1762/2003 of 7 October 2003 fixing the production levies in the sugar sector for the 2002/03 marketing year (OJ 2003 L 254, p. 4)

      (5)  Commission Regulation (EC) No 1837/2002 of 15 October 2002 fixing the production levies and the coefficient for the additional levy in the sugar sector for the marketing year 2001/02 (OJ 2002 L 278, p. 13)

      (6)  Commission Regulation (EC) No 1993/2001 of 11 October 2001 fixing the production levies in the sugar sector for the 2000/01 marketing year (OJ 2001 L 271, p. 15)

      (7)  Commission Regulation (EC) No 2267/2000 of 12 October 2000 fixing the production levies and the coefficient for calculating the additional levy in the sugar sector for the 1999/2000 marketing year (OJ 2000 L 259, p. 29)


title: Case C-382/11: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 18 July 2011 — M SAT CABLE AD v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/12

         Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 18 July 2011 — M SAT CABLE AD v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna
   (Case C-382/11)
   2011/C 298/24
   Language of the case: Bulgarian

      Referring court

   Administrativen Sad Varna

      Parties to the main proceedings

      Applicant: M SAT CABLE AD

      Defendant: Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

      Questions referred

               1.

               What is to be understood by the term ‘Internet’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), (1) which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

               2.

               What is to be understood by the term ‘modem’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

               3.

               What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300?

               4.

               What is the relevant function (main function) of the set-top box TF6100EMC apparatus, pursuant to which the tariff classification must be carried out: receipt of television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the Internet?

               5.

               If the relevant function (main function) of the set-top box TF6100EMC apparatus is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the Internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the Internet is provided by means of the modem?

               6.

               Is it permissible for the customs authorities to amend the customs duty classification of a specific product without physically checking the imported product, and for the experts’ report to be issued exclusively on the basis of written evidence, namely the user manual, technical characteristics and inspection of a device made by the same manufacturer which has the same number from another imported consignment?

               7.

               Under which subheading and which code should apparatus corresponding to the description of the apparatus TF6100EMC be classified?

               8.

               In the event that the set-top box TF6100EMC is to be classified under the subheading 8521 90 00 of the combined nomenclature, is the application of a positive rate of customs duty lawful as a matter of Community law, if such classification would constitute a violation of the Community’s obligations under the Information Technology Agreement and Article II(b) of the General Agreement on Tariffs and Trade 1994, or does classification under heading 8521 entail a conclusion that the set-top box TF6100EMC falls outside the scope of the relevant part of the Information Technology Agreement?

      (1)  OJ 2008 L 291, p. 1.


title: Case T-267/13: Judgment of the General Court of 18 September 2014  — El Corte Inglés, SA v OHIM — Gaffashion (BAUSS) (Community trade mark — Opposition proceedings — Application for Community word mark BAUSS — Earlier Community figurative mark BASS3TRES — Article 8(1)(b) of Regulation (EC) No 207/2009 — No likelihood of confusion)

text:
               3.11.2014

               EN

               Official Journal of the European Union

               C 388/15

         Judgment of the General Court of 18 September 2014 — El Corte Inglés, SA v OHIM — Gaffashion (BAUSS)
   (Case T-267/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark BAUSS - Earlier Community figurative mark BASS3TRES - Article 8(1)(b) of Regulation (EC) No 207/2009 - No likelihood of confusion))
   2014/C 388/18
   Language of the case: Spanish

      Parties

      Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J. L. Rivas Zurdo, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Gaffashion — Comércio de Accessórios de Moda, Lda (Viana do Castelo, Portugal)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 21 February 2013 (Case R 2295/2011-2), concerning opposition proceedings between El Corte Inglés, SA and Gaffashion — Comércio de Accessórios de Moda, Lda.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders El Corte Inglés, SA to pay the costs.

      (1)  OJ C 215, 27.7.2013.


title: Action brought on 29 May 1996 by the Federal Republic of Germany against the Commission of the European Communities (Case C-182/96)

text:
No C 210/8               EN                   Official Journal of the European Communities                                 20 . 7 . 96
      instead of Article 100c of the EC Treaty, has resulted in a        Action brought on 29 May 1996 by the Federal Republic of
      breach of the essential procedural requirements laid               Germany against the Commission of the European
      down by that provision . Thus :                                                                Communities
                                                                                Case C-182/96 )
      — the Act was adopted without the submission of a
           proposal by the Commission ( it was adopted on the                                          96/C 210/ 17 )
           initiative of the French Republic ),
                                                                         An action against the Commission of the European
      — the Act was adopted without the European                         Communities was brought before the Court of Justice of the
           Parliament being consulted ; the European                     European Communities on 29 May 1996 by the Federal
           Parliament     was     not    even   informed   of   the      Republic of Germany, represented by Ernst Roder,
           initiative ,                                                  Ministerialrat in the Federal Ministry of Economic Affairs
                                                                         and Sabine Maass, probationary Regierungsràtin in the
      — since the Council chose to act within the framework              same Ministry.
           of Article K. 3 of the Treaty on European Union, its
           decision should have been unanimous, whereas, on
                                                                         The applicant claims that the Court should :
           the basis of Article 100c of the EC Treaty, the Act
           could ( from 1 January 1996 ) have been adopted by a          — annul Decision (K 96 ) 841 final of the Commission of
           qualified majority, pursuant to Article 100c ( 3 ) of               13 March 1 996 concerning fiscal aid in the field of
           the EC Treaty,                                                      depreciation favouring German undertakings,
      — by adopting the Act of 4 March 1996 in the
                                                                         — order the defendant to pay the costs .
           form of 'joint action', the Council created a
           misunderstanding as to the precise legal nature of the
           instrument .                                                  Pleas in law and main arguments
( ] ) 96/ 197/JHA, OJ No L 63 , 13 . 3 . 1996 , p . 8 .
                                                                         The pleas in law and main arguments are the same as those
( 2 ) OJ No L 164, 14 . 7 . 1995 , p . 1 .                               in Case C-46/96(M .
                                                                         (') OJ No C 108 , 13 . 4 . 1996 , p . 4 .
Reference for a preliminary ruling from the
Bundesverwaltungsgericht by order of that court of
21 March 1996, in the case of Georg Wilkens v.                           Reference for a preliminary ruling from the Tribunale di
                 Landwirtschaftskammer Hannover                          Genova — Sezione prima civile — by an order of 9 May
                           ( Case C-181 /96 )                            1996 in the case of Icat Food SRL and Ministero delle
                                                                                Finanze dello Stato
                             ( 96/C 210/16 )
                                                                                ( Case C-183 /96 )
Reference has been made to the Court of Justice of the                                               ( 96/C 210/ 18 )
European Communities by order of the Third Chamber of
the Bundesverwaltungsgericht ( Federal Administrative                    Reference has been made to the Court of Justice of the
Court ) of 21 March 1996 , which was received at the Court               European Communities by an order of the Tribunale di
Registry on 29 May 1996 , for a preliminary ruling in                    Genova — Sezione prima civile ( District Court, Genoa , First
the case of Georg Wilkens v. Landwirtschaftskammer                       Civil Section ) of 9 May 1996 which was received at the
( Chamber of Agriculture ) Hannover on the following                     Court Registry on 30 May 1996 . The grounds of the order
questions :                                                              and the questions referred for a preliminary ruling are the
                                                                         same as in Case C-47/95 , inter alia (') .
 1 . Does the second subparagraph of Article 3 ( a ) ( 1 ) of
       Regulation ( EEC ) No 857/84, as amended by                       f 1 ) OJ No C 119 , 13 . 5 . 1995 , p . 5 .
       Regulation ( EEC ) No 1639/91 ( 1 ), preclude granting a
       provisional special reference quantity to producers who
       have been asked to repay a non-marketing or conversion
       premium on account of a breach of the undertaking
       given by them ?
                                                                         Action brought on 31 May 1996 by the Commission of the
2 . If so, is that rule compatible with the Community law                      European Communities against the French Republic
       principles of the protection of legitimate expectations
       and proportionality ?                                                                      ( Case C-l 84/96 )
                                                                                ( 96/C 210/ 19 )
 (!) OJ No L 150 , 15 . 6 . 1991 , p . 35 .
                                                                         An action against the French Republic was brought before
                                                                         the Court of Justice on 31 May 1 996 by the Commission of


title: Case T-755/16: Action brought on 31 October 2016 — Alessandro La Rocca v EUIPO (Take your time Pay After)

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/23

         Action brought on 31 October 2016 — Alessandro La Rocca v EUIPO (Take your time Pay After)
   (Case T-755/16)
   (2016/C 475/34)
   Language of the case: Italian

      Parties

      Applicant: Alessandro La Rocca (Anzio, Italy) (represented by: A. Perani, J. Graffer, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: European Union figurative mark containing the word elements ‘Take your time Pay After’ — Application for registration No 14 396 031

      Contested decision: Decision of the First Board of Appeal of EUIPO of 4 August 2016 in Case R 406/2016-1

      Form of order sought

   The applicant claims that the Court should:

               —

               rule that there has been an infringement and incorrect application of Article 7(1)(b) and 7(2) of Regulation No 207/2009;

               —

               rule that there has been an infringement of Article 75 of Regulation No 207/2009 and, accordingly;

               —

               annul the decision of the First Board of Appeal of EUIPO in Case R 406/2016-1, made on 4 August 2016 and notified on 31 August 2016;

               —

               order EUIPO to pay the costs and fees incurred in the present proceedings.

      Pleas in law

               —

               Infringement of Article 7(1)(b) and 7(2) of Regulation No 207/2009;

               —

               Infringement of Article 75 of Regulation No 207/2009.


title: Reference for a preliminary ruling from the Tribunal des Affaires de Sécurité Sociale d'Evry, by judgment of that court of 28 May 1996, in the case of Ourdia Djabali v. Caisse d'Allocations Familiales de l'Essonne (Case C-314/96)

text:
7 . 12 . 96             EN |                 Official Journal of the European Communities                                     No C 370/ 3
( Presidents of Chambers ), C. N. Kakouris, P. J. G. Kapteyn,           however, accepted that the power of initiative of the
C. Gulmann, D. A. O. Edward ( Rapporteur ), J. -P.                      Commission can authorize pilot studies and preparatory
Puissochet, G. Hirsch and M. Wathelet, Judges; C. O. Lenz,              action, properly so called .
Advocate-General; D. Louterman-Hubeau, Principal
Administrator, for the Registrar, gave a judgment on
 15 October 1996 , the operative part of which is as follows:           In the present case, the United Kingdom does not accept
                                                                        that the power of initiative justified or would justify the
 1 . The Commission, in exercising its powers under                     Commission in incurring the expenditure in issue . The
      Articles 92 and 93 of the EEC Treaty, could adopt the             funding which has been incurred and the further funding
     guidelines for the examination of State aids in the                which is proposed has resulted or would result in
     fisheries sector (OJ No C 313, 1988, p. 21 ), which                expenditure in pursuit of a policy which has already been
      require compliance, not only with criteria pertaining             ' bench tested' under the Youth for Europe programme .
      exclusively to competition policy, but also with those            Further, it is clear that the Commission does not intend to
      applicable in relation to the common fisheries policy,            conduct any proper appraisal of the results of the 'pilot
      even if the Council had not expressly authorized it to do         action' prior to making their proposal for a multiannual
      so .
                                                                        European voluntary service programme. In reality, the 'pilot
                                                                        action' therefore amounts to the launch of the European
                                                                        voluntary service prior to the adoption of the necessary
2 . A Member State, such as the Netherlands, which is                   basic measure .
      subject to the obligation of cooperation under
      Article 93 (1 ) of the Treaty and which has accepted the
      rules laid down in the guidelines must apply those                Furthermore, the decision or decisions are procedurally
      guidelines when deciding on an application for aid for            defective in that they are not supported by adequate
      the construction of a fishing vessel intended to form             reasoning.
      part of one of the Community fleets, irrespective of the
      area in which it fishes.
                                                                         (') Commission press release of 10 July 1996 ( IP/96/632 )
 (') OJ No C 392 , 31 . 12 . 1994 .
                                                                              announcing grants for European voluntary service projects .
 Action brought on 20 September 1996 by the United                       Reference for a preliminary ruling from the Tribunal des
 Kingdom against the Commission of the European                          Affaires de Securite Sociale d'Evry, by judgment of that
                              Communities                                court of 28 May 1996, in the case of Oufdia Djabali v.
                           ( Case C-305/96 )                                       Caisse d'Allocations Familiales de l'Essonne
                             ( 96/C 370/05 )                                                       Case C-314/96 )
                                                                                96/C 370/06 )
 An action against the Commission of the European
 Communities was brought before the Court of Justice of the
 European Communities on 20 September 1996 by the                        Reference has been made to the Court of Justice of the
 United Kingdom, represented by Mr John E. Collins,                      European Communities by a judgment of the Tribunal des
 Assistant Treasury Solicitor, acting as Agent, assisted by Mr           Affaires de Securite Sociale d'Evry ( Social Security Court,
  Derrick Wyatt, QC, and Ms Helen Davies, Barrister, of the              Evry ) of 28 May 1996 , which was received at the Court
  English Bar, with an address for service in Luxembourg at              Registry on 26 September 1996 , for a preliminary ruling in
  the British Embassy, 14 Boulevard Roosevelt.                           the case of Ourdia Djabali v. Caisse d'Allocations
                                                                         Familiales de l'Essonne on the following question :
  The applicant seeks the annulment of the decision *Or
  decisions referred to in or comprised in the press release of
  the Commission of 10 July 1996 0 ) without prejudice to                Does Article 39 of Council Regulation ( EEC ) No 2210/78
  the competence of the Court of Justice to declare the                   of 26 September 1978 concerning the conclusion of the
  decision or decisions in issue of definitive effect.                    Cooperation Agreement between the EEC and the People's
                                                                         Democratic Republic of Algeria ( ] ) apply to Mrs Djabali in
                                                                          regard to the award of a disabled adults' allowance where
  The applicant asks for costs against the Commission                     she has never been employed but will be entitled, possibly
  pursuant to Article 69 of the Rules of Procedure .                      in December 1997, to a pension in her capacity as a 'non
                                                                          working mother' ( mere au foyer )?
  Pleas in law and main arguments adduced in support:
                                                                          (!) OJNoL263 , 27. 9 . 1978 , p . 1 .
  All Community expenditure must be based on both a
  budgetary appropriation and a basic measure . It is,


title: Case T-271/14: Action brought on 29 April 2014  — Styron Deutschland v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/25

         Action brought on 29 April 2014 — Styron Deutschland v Commission
   (Case T-271/14)
   2014/C 223/30
   Language of the case: German

      Parties

      Applicant: Styron Deutschland GmbH (Schkopau, Germany) (represented by: H. Janssen and S. Kobes, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 in State aid case SA.33995 (2013/C) — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law: Infringement of Article 107(1) TFEU

                           —

                           The applicant claims that the contested decision infringes Article 107(1) TFEU because the EEG-surcharge provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG) and the special compensation regime did not constitute an allocation of State or State-controlled resources. All the facts relevant to the qualification of those measures were determined in the preliminary proceedings between the Commission and the Federal Republic of Germany. There were no longer any doubts, which the Commission should have found in a proceeding pursuant to Article 108(2) TFEU and Article 4(4) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty. (1)

               2.

               Second plea in law: Infringement of Article 108(1) TFEU and the principle of legal certainty

                           —

                           The applicant submits in that regard that the Commission infringed Article 108(1) TFEU and the principle of legal certainty by applying the procedure for new aid pursuant to Article 4(4) of Regulation No 659/1999 instead of the procedure for existing aid pursuant to Article 17 et seq. of Regulation No 659/1999 in order to review its provisional assessment of the EEG as aid. In that regard, the applicant observes in particular that, by decision of 22 May 2002, the Commission did not classify the 2000 EEG as aid within the meaning of Article 107(1) TFEU because there was no transfer of State resources. The changes from the 2000 EEG to the 2012 EEG were not substantial in comparison to the Commission decision of 22 May 2002. The Commission, therefore, could have asserted an amended legal opinion in a proceeding pursuant to Article 108(1) TFEU without impacting on the applicant.

               3.

               Third plea in law: Infringement of Article 41 of the Charter of Fundamental Rights and the principle of audi alteram partem

                           —

                           The applicant also claims that the defendant adopted the contested decision without previously giving the applicant the opportunity to provide comments.

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


title: Case T-378/03: Action brought on 18 November 2003 by Musée Grevin against the Commission of the European Communities

text:
C 21/40               EN                         Official Journal of the European Union                                         24.1.2004
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     annul the decision given by the Fourth Board of Appeal             —     join this action to Case T-314/03 for the purposes of the
      of the defendant on 16 July 2003 in Case R 339/2002-4;                   written procedure and the oral procedure;
—     order the defendant to pay the costs.
                                                                         —     annul the decision of the European Commission of
                                                                               30 September 2003 requiring Musée Grevin to reimburse
                                                                               the sums allegedly wrongly paid to it;
Pleas in law and main arguments
                                                                         —     order the European Commission to pay all of the costs.
Applicant for Com-           ATI Technologies Inc.
munity trade mark:
Community trade mark         Word mark ‘ATI’ — Application
sought:                      No 362 863 lodged in respect of             Pleas in law and main arguments
                             goods and services in Class 9
                             (electronic components etc.).
Proprietor of mark or        Asociación de Técnicos            de        The applicant received grants from the Commission within the
sign cited in the oppo-      Informatica — ATI.                          framework of a project to create a joint venture with a Polish
sition proceedings:                                                      undertaking. By decision of 8 July 2003, the Commission
                                                                         sought repayment of the sums paid to the applicant.
Mark or sign cited in        Graphic mark ‘ati’ registered in
opposition:                  respect of services in Class 42.
                                                                         The applicant brought proceedings challenging that decision
Decision of the Oppo-        Refusal of the application for              (Case T-314/03, OJ 2003 C 275, p. 49). At the same time, the
sition Division:             registration.                               applicant submitted documents to the Commission fully
                                                                         substantiating the proper use of the Community funds, and
Decision of the Board of     Dismissal of the appeal.                    asked it to reconsider its decision. In the decision contested in
Appeal:                                                                  this case, the Commission confirmed its decision of 8 July
                                                                         2003.
Pleas in law:                Misapplication of Article 8(1)(b)
                             of Regulation (EC) No 40/94 (like-
                             lihood of confusion).
                                                                         In support of its application, the applicant alleges, first, a
                                                                         breach of Regulation No 1 (1), in that the contested decision
                                                                         was written in English and not in French. It also alleges a
                                                                         failure to respect the limitation period of four years laid down
                                                                         in Article 3 of Council Regulation No 2988/95 (2). The
                                                                         applicant alleges moreover a breach of the principle of
                                                                         collegiate responsibility and that the person who signed the
                                                                         contested decision lacked competence.
Action brought on 18 November 2003 by Musée Grevin
  against the Commission of the European Communities
                                                                         The applicant also alleges that the decision lacks any legal
                        (Case T-378/03)                                  basis, contains a manifest error of assessment, fails to satisfy
                                                                         the obligation to state reasons and, lastly, is in breach of the
                                                                         principle of proportionality.
                         (2004/C 21/83)
                  (Language of the case: French)                         (1) Council Regulation No 1 determining the languages to be used by
                                                                             the European Economic Community (OJ, English Special Edition
                                                                             1952-1958, p. 59).
                                                                         (2) Council Regulation (EC, Euratom) No 2988/95 of 18 December
                                                                             1995 on the protection of the European Communities’ financial
An action against the Commission of the European Communi-                    interests (OJ 1995 L 312, pp. 1-4).
ties was brought before the Court of First Instance of the
European Communities on 18 November 2003 by Musée
Grevin, having its registered office in Paris, represented by
Bernard Geneste and Olivia Davidson, lawyers.


title: Case T-456/15: Judgment of the General Court of 5 October 2016 — Foodcare v EUIPO — Michalczewski (T.G.R. ENERGY DRINK) (EU trade mark — Invalidity proceedings — EU word mark T.G.R. ENERGY DRINK — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/42

         Judgment of the General Court of 5 October 2016 — Foodcare v EUIPO — Michalczewski (T.G.R. ENERGY DRINK)
   (Case T-456/15) (1)

   ((EU trade mark - Invalidity proceedings - EU word mark T.G.R. ENERGY DRINK - Bad faith - Article 52(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 419/55)
   Language of the case: English

      Parties

      Applicant: Foodcare sp. z o.o. (Zabierzów, Poland) (represented by: A. Matusik, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas, Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Dariusz Michalczewski (Gdańsk, Poland) (represented by: B. Matusiewicz-Kulig, M. Czerwińska and M. Marek, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 12 May 2015 (Case R 265/2014-2), relating to invalidity proceedings between Mr Michalczewski and Foodcare.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Foodcare sp. z o.o. to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Mr Dariusz Michalczewski.

      (1)  OJ C 328, 5.10.2015.


title: Case C-451/04: Order of the President of the Court of 30 January 2006 — Commission of the European Communities v French Republic

text:
               14.10.2006

               EN

               Official Journal of the European Union

               C 249/8

         Order of the President of the Court of 30 January 2006 — Commission of the European Communities v French Republic
   (Case C-451/04) (1)

   (2006/C 249/19)

      Language of the case: French

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 314, 18.12.2004.


title: Case C-420/99: Action brought on 29 October 1999 by the Commission of the European Communities against the Italian Republic

text:
C 20/12                EN                    Official Journal of the European Communities                                   22.1.2000
Pleas in law and main arguments                                         time-limit expired on 30 September 1997, but the Italian
                                                                        Republic had not adopted the measures necessary to comply
Article 249 EC (formerly Article 189 of the EC Treaty),                 with the directive mentioned in the forms of order sought by
according to which a directive is to be binding, as to the result       the Commission.
to be achieved, upon each Member State to which it is
addressed, requires Member States to observe the time-limits
laid down in directives for their transposition. The time-limit         (1) OJ L 48 of 19 February 1997, p. 20.
in the present case expired on 30 June 1998 without the
Italian Republic having adopted the necessary provisions in
order to comply with the directive referred to in the Com-
mission’s application. Failure by a State to comply with its
obligations — Failure to transpose, within the period pre-
scribed for that purpose, Directive 97/68/EC of the European
Parliament and of the Council of 16 December 1997 on the
approximation of the laws of the Member States relating to
measures against the emission of gaseous and particulate                Action brought on 29 October 1999 by the Commission
pollutants from internal combustion engines to be installed in          of the European Communities against the Italian Republic
non-road mobile machinery.
                                                                                (Case C-420/99)
(1) OJ L 59 of 27.2.1998, p. 1.
                                                                                (2000/C 20/25)
                                                                        An action against the Italian Republic was brought before
                                                                        the Court of Justice of the European Communities by the
                                                                        Commission of the European Communities, represented by
Action brought on 29 October 1999 by the Commission                     Richard Wainwright, of its Legal Service, and Giacinto Bisogni,
of the European Communities against the Italian Republic                a judge of the Court of Appeal, seconded to that Legal Service,
                                                                        acting as Agents, with an address for service at the office of
                                                                        Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
                         (Case C-419/99)
                          (2000/C 20/24)                                The applicant claims that the Court should:
An action against the Italian Republic was brought before               — declare that, by failing to adopt or, in any event, by failing
the Court of Justice of the European Communities by the                     to communicate to the Commission, the laws, regulations
Commission of the European Communities, represented by                      and administrative provisions necessary to comply with
Richard Wainwright, of its Legal Service, and Giacinto Bisogni,             Directive 96/70/EC (1) of the European Parliament and of
a judge of the Court of Appeal, seconded to that Legal Service,             the Council of 28 October 1996 relating to the exploi-
acting as Agents, with an address for service at the office of              tation and marketing of natural mineral waters, the Italian
Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                         Republic has failed to fulfil its obligations under that
                                                                            directive,
The applicant claims that the Court should:
                                                                        — order the Italian Republic to pay the costs.
— declare that, by failing to adopt or, in any event, by failing
     to communicate to the Commission, the laws, regulations
     and administrative provisions necessary to comply with             Pleas in law and main arguments
     Directive 96/84/EC (1) of the European Parliament and of
     the Council of 19 December 1996 amending Directive
     89/398/EEC on the approximation of the laws of the                 Article 249 EC (formerly Article 189 of the EC Treaty), in
     Member States relating to foodstuffs intended for particular       accordance with which a directive is binding, as to the result
     nutritional uses, the Italian Republic has failed to fulfil its    to be achieved, upon each Member State to which it is
     obligations under that directive,                                  addressed, requires those Member States to comply with the
                                                                        time-limits for implementation laid down in the directive.
— order the Italian Republic to pay the costs.                          The time-limit expired on 28 October 1997, but the Italian
                                                                        Republic had not adopted the measures necessary to comply
                                                                        with the directive mentioned in the forms of order sought by
Pleas in law and main arguments                                         the Commission.
Article 249 EC (formerly Article 189 of the EC Treaty), in
accordance with which a directive is binding, as to the result          (1) OJ L 299 of 23 November 1996, p. 26.
to be achieved, upon each Member State to which it is
addressed, requires those Member States to comply with the
time-limits for implementation laid down in the directive. The


title: Judgment of the Court of First Instance of 14 February 2001 in Case T-26/99: Trabisco SA v Commission of the European Communities (Competition — Distribution of motor vehicles — Rejection of a complaint — Action for annulment)

text:
C 150/22               EN                    Official Journal of the European Communities                                     19.5.2001
against Commission of the European Communities (Agents:                 and certain general principles of Community law — the Court
K.-D. Borchardt and H. van Vliet) — application for compen-             of First Instance (Fifth Chamber), composed of P. Lindh,
sation for the loss allegedly suffered by the applicant as a            President, R. Garcı́a-Valdecasas and J.D. Cooke, Judges; J. Pala-
result of the introduction of the export licence system by              cio González, Administrator, for the Registrar, has given a
Commission Regulation (EC) No 478/95 of 1 March 1995 on                 judgment on 20 March 2001, in which it:
additional rules for the application of Council Regulation (EEC)
No 404/93 as regards the tariff quota arrangements for                  1.    Dismisses the action;
imports of bananas into the Community and amending
Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13) — the
Court of First Instance (Fifth Chamber), composed of: R. Garcı́a-       2.    Orders the applicant to pay its own costs and those of the
Valdecasas, President, P. Lindh and J.D. Cooke, Judges; B. Pas-               Commission.
tor, Principal Administrator, for the Registrar, has given a
judgment on 1 February 2001, in which it:
                                                                        (1) OJ C 86 of 27.3.99.
1.    Dismisses the application;
2.    Orders the applicant to pay the costs.
(1) OJ C 71 of 13.3.99.
                                                                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 14 February 2001
                                                                        in Case T-26/99: Trabisco SA v Commission of the
                                                                                European Communities (1)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                        (Competition — Distribution of motor vehicles — Rejection
                                                                                of a complaint — Action for annulment)
                        of 20 March 2001
                                                                                (2001/C 150/42)
in Case T-18/99 Cordis Obst und Gemüse Großhandel
  GmbH v Commission of the European Communities (1)
                                                                                (Language of the case: French)
(Bananas — Imports from ACP States and third countries
— Calculation of annual quantity allocated — Action for                 In Case T-26/99, Trabisco SA, established in Cognac (France),
damages — Admissibility — Possibility of relying on                     represented by J.-C. Fourgoux, avocat, with an address for
WTO rules — Misuse of powers — General principles of                    service in Luxembourg, against Commission of the European
                         Community law)                                 Communities (Agents: initially G. Marenco and L. Guérin
                                                                        and, subsequently, Mr Marenco and F. Siredey-Garnier) —
                                                                        application for annulment of the Commission decision of
                         (2001/C 150/41)                                17 November 1998 rejecting a complaint by the applicant
                                                                        based on Article 85 of the EC Treaty (now Article 81 EC) —
                                                                        the Court of First Instance (Second Chamber), composed of
                                                                        J. Pirrung, President, and A. Potocki and A.W.H. Meij, Judges;
                  (Language of the case: German)                        J. Palacio González, Administrator, for the Registrar, has given
                                                                        a judgment on 14 February 2001, in which it:
In Case T-18/99 Cordis Obst und Gemüse Großhandel GmbH,
established in Ostrau (Germany), represented by G. Meier,               1.    Dismisses the application.
avocat, against Commission of the European Communities
(Agents: K.-D. Borchardt and H. van Vliet) — application for            2.    Orders the applicant to pay the costs.
compensation for the loss which the applicant has allegedly
suffered as a result of the Commission introducing, under
Regulation (EC) No 2362/98 of 28 October 1998 laying down               (1) OJ C 100 of 10.4.1999.
detailed rules for the implementation of Council Regulation
(EEC) No 404/93 regarding imports of bananas into the
Community (OJ 1998 L 293, p. 32), provisions which are
alleged to conflict with World Trade Organisation (WTO) rules


title: Case T-63/00: Action brought on 20 March 2000 by Lars Bo Rasmussen against the Commission of the European Communities

text:
C 135/28               EN                     Official Journal of the European Communities                                       13.5.2000
Pleas in law and main arguments                                          Action brought on 20 March 2000 by Lars Bo Rasmussen
                                                                           against the Commission of the European Communities
                                                                                (Case T-63/00)
The present application has been brought against Commission
Decision C(1999) 4559 withdrawing the financial contribution
granted to the applicant, a national union of producers’                                          (2000/C 135/49)
associations in the sector, by Decision C(84) 500/213 of
29 June 1984. The financial contribution had been requested
pursuant to Council Regulation (EEC) No 355/77 of 15 Februa-
ry 1977 on common measures to improve the conditions                                        (Language of the case: French)
under which agricultural products are processed and market-
ed (1), for the purpose of building three facilities for the storage,    An action against the Commission of the European Communi-
processing and marketing of olive oil in the communes of                 ties was brought before the Court of First Instance of the
Castri (Lecce), Eboli (Salerno) and S. Lorenzo (Regio Calabria).         European Communities on 20 March 2000 by Lars Bo Ras-
                                                                         mussen, residing at Dalheim, Grand Duchy of Luxembourg,
                                                                         represented by Michel Karp, of the Luxembourg Bar.
The contested decision is based on three main heads of
complaint: the funded establishments failed to operate, the              The applicant claims that the Court should:
facilities were not built as planned, incorrect information was
provided concerning the existence, in the regions in question,
                                                                         — annul the decision of the Commission of 22 July 1999 not
of facilities for processing and storing olive oil of the same
                                                                              to grant to the applicant special leave of two and a half
type as those funded with the aid of the contribution.
                                                                              days from 11 March (afternoon) to 13 March 1998;
                                                                         — order the defendant to pay to the applicant token damages
The pleas and principal arguments are the same as those made                  of one franc as compensation for the non-material damage
in Case T-61/00 APOL v Commission. In particular, it is                       suffered;
alleged that:
                                                                         — order the defendant to pay the costs.
— the Commission misunderstood the information provided
     by the applicant concerning the existence, in the regions
     in question, of facilities of the same type as those planned        Pleas in law and main arguments
     by the applicant;
                                                                         The applicant contests the refusal of the appointing authority
                                                                         to grant him two and a half days’ special leave in order to
— the Commission was wrong to conclude that certain plant                enable him to vote in the general elections which took place
     and works failed to conform to the applicant’s plans as             in Denmark in 1998.
     approved;
                                                                         It is stated in that respect that he was not able to submit
— the fact that operations fell behind schedule is directly              documentary evidence of his participation in the elections,
     attributable to the financial difficulties which beset the          since Danish legislation does not allow the polling station to
     applicant from 1989 onwards following a loss of more                certify the voter’s participation in the ballot. Consequently, he
     than LIT 3 500 000 000 it incurred when it was required             provided proof of his participation by means of a declaration
     to reimburse the value of produce it was storing which              on his honour.
     was stolen;
                                                                         In support of his claims, the applicant pleads:
— the irregularities in the present case are only partial.
                                                                         — defective and inadequate statement of reasons on which
                                                                              the contested decision is based;
(1) OJ 1977 L 51, p. 1.                                                  — breach of Article 57 of the Staff Regulations;
                                                                         — breach of the principle of equal treatment, in so far as,
                                                                              according to the solution adopted by the defendant, only
                                                                              officials who are nationals of a Member State which
                                                                              provides in its legislation for the issue of a certificate of
                                                                              voting can be entitled to the special leave at issue;
 ---pagebreak--- 13.5.2000              EN                     Official Journal of the European Communities                                      C 135/29
— breach of the principle of subsidiarity, in so far as the              Action brought on 20 March 2000 by ‘B’ against the
    possibility for the applicant to be entitled to such leave                    Commission of the European Communities
    requires an amendment to the Danish legislation on the
    matter.                                                                                (Case T-66/00)
                                                                                (2000/C 135/51)
                                                                                (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 20 March 2000 by ‘B’, of Tervue-
Action brought on 20 March 2000 by Angeliki Ioannou                      ren, Belgium, represented by Jean-Noël Louis, Greta-Françoise
          against the Council of the European Union                      Parmentier and Véronique Peere, of the Brussels Bar.
                         (Case T-65/00)                                  The applicant claims that the Court should:
                                                                         — rule that the purported decision of 4 March 1999 is not in
                        (2000/C 135/50)                                      fact a decision, and consequently restore the applicant’s
                                                                             rights;
                                                                         — in the alternative, annul the decision to withdraw the
                   (Language of the case: French)
                                                                             dependent child allowance awarded to the applicant for
                                                                             her son, and the decision to reduce her expatriation
An action against the Council of the European Union was                      allowance with effect from 1 September 1997; and
brought before the Court of First Instance of the European
Communities on 20 March 2000 by Angeliki Ioannou, resid-                 — in the alternative, annul the decision to withdraw the
ing in Brussels, represented by Jean van Rossum, of the Brussels             education allowance awarded to the applicant for her son
Bar.                                                                         with effect from 1 September 1997;
                                                                         — order the Commission to pay the costs.
The applicant claims that the Court should:
                                                                         Pleas in law and main arguments
— annul the Council’s decision of 21 May 1999 refusing
    to appoint the applicant a probationary official of the              The applicant challenges the decision to withdraw her depen-
    institution;                                                         dent child allowance and education allowance, and the
                                                                         appointing authority’s decision to recover part of the allow-
— order the defendant to pay the costs.                                  ances paid. The withdrawal of the allowances arose from the
                                                                         Opinion of the Heads of Administration No 188/89, of
                                                                         30 January 1990, of which the applicant was only able to take
                                                                         cognizance in February 1999, and which fixes an upper
Pleas in law and main arguments                                          income limit beyond which a child of a servant of the
                                                                         Communities may no longer be deemed to be a dependent
                                                                         child.
The applicant, a former employee of the Benelux Economic
Union assigned to the Secretariat responsible for implementing           In support of her claims, the applicants alleges:
the Schengen agreement, contests the appointing authority’s
refusal to appoint her a probationary official upon the                  — Infringement of the decision of 21 January 1998 concern-
integration of the Schengen Secretariat into the General                     ing the exercise of authority granted under the Staff
Secretariat of the Council.                                                  Regulations to the appointing authority, in so far as
                                                                             decisions to grant and withdraw the awards at issue were
                                                                             not taken by the same authority as that which applies
In support of her claims, the applicant pleads:                              Article 85 of the Staff Regulations;
— infringement of Article 25(2) of the Staff Regulations and             — Infringement of Article 2 of Annex VII to the Staff
    of the rights of the defence;                                            Regulations;
                                                                         — The inapplicability, or alternatively the illegality of the
— in the present case, a manifest error of assessment.                       Opinion of the Heads of Administration No 188/89;
                                                                         — Infringement of Article 85 of the Staff Regulations;
                                                                         — Failure to fulfil the obligation to state reasons, and


title: Appeal by the Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e Procuratori against the Order of the Court of First Instance of the European Communities of 11 January 1995 in Case T-116/94, Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e Procuratori against the Council of the European Union (Case C-87/95 P)

text:
No C 159/14           | EN                    Official Journal of the European Communities                                   24 . 6 . 95
Appeal by the Cassa Nazionale di Previdenza ed Assistenza a              aware of the factual situation affecting the appellant and
favore degli Avvocati e Procuratori against the Order of the             other Italian provident organizations, adopted a provision
Court of First Instance of the European Communities of                   intended specifically, given its effect, to exclude the
11 January 1995 in Case T-116/94 , Cassa Nazionale di                    appellant and similar Italian provident organizations from
Previdenza ed Assistenza a favore degli Avvocati e                       the benefit of the prohibition contained in Article 104a ( 1 )
  Procuratori against the Council of the European Union                  of the EC Treaty, contrary to the purpose of that provision.
                         ( Case C-87/95 P)                               Whilst it may be true in the abstract that the inadequacy of
                                                                         the alternative remedies available before the national courts
                            ( 95/C 159/27 )                              cannot give rise to an action for annulment under
                                                                         Article 173 of the EC Treaty, the fact that in this case an
An appeal was brought before the Court of Justice of the                 effective action before the courts is lacking, given the
European Communities on 20 March 1995 by the Cassa                       slowness of proceedings — especially civil proceedings — in
Nazionale di Previdenza ed Assistenza a favore degli                     Italy, gives rise to serious doubts as to the adequacy of the
Avvocati e Procuratori , with its registered office in Rome,             procedure for judicial review of the acts of Community
represented by Pietro Adonnino, Mario Sanino, Maurizio de                institutions and thus as to the effectiveness of the rights of
Stefano and Alberto Colabianchi, with an address for                     the defence .
service in Luxembourg at the Chambers of Marianne
Goebel, 1 Rue François Faber, against the order of the Court
                                                                         (M OJ No L 332 , 31 . 12 . 1993 , p . 4 .
of First Instance of the European Communities of
11 January 1 995 in Case T- 1 1 6/94 between the appellant
and the Council of the European Union.
The appellant claims that the Court should :
( a ) annul the order of the Court of First Instance of
      11 January 1994 in Case T- 1 1 6/94, in so far as it
      declared inadmissible the appellant's alternative claim            Appeal brought on 24 March 1995 by D against the
      for the annulment of the last indent of Article 4 ( 2 ) of         judgment delivered on 26 January 1995 by the Fourth
      Council Regulation ( EC ) No 3604/93 of 13 December                Chamber of the Court of First Instance of the European
                                                                         Communities in Case T-549/93 between D and the
      1993 specifying definitions for the application of the
      prohibition of privileged access referred to in                             Commission of the European Communities
      Article 1 04a of the Treaty ( 1 ) in so far as it provides that                           ( Case C-89/95 P)
      institutions forming part of the 'general government                                         ( 95/C 159/28 )
      sector ' defined in accordance with the ESA are excluded
      from the definition of ' financial institutions';
                                                                         An appeal against the judgment delivered on 26 January
( b ) if the state of the pleadings permits, grant the relief            1995 by the Fourth Chamber of the Court of First Instance
      sought by the appellant at first instance in its alternative       of the European Communities in Case T-549/93 between D
      claim    for the annulment         of the     last indent of       and the Commission of the European Communities was
      Article 4 ( 2 ) of the Regulation, in so far as it provides        brought before the Court of Justice of the European
      that institutions forming part of the 'general                     Communities on 24 March 1995 by D , represented by Eric
      government sector' defined in accordance with the ESA              Boigelot, with an address for service in Luxembourg at the
      are   excluded      from    the   definition     of  ' financial   Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim .
      institutions '; or
      refer the matter to the Court of First Instance for the            The appellant claims that the Court should :
      examination and determination of the merits;
                                                                         — annul the contested judgment ( l ) in its entirety,
(c ) order the Council to pay the costs of the proceedings
      and of the proceedings before the Court of First
      Instance .                                                         — itself rule on the dispute and, allowing the appellant's
                                                                             original application, annul the respondent's decision
                                                                             imposing on him the disciplinary measure referred to in
Pleas in law and main arguments adduced in support:                          Article 86 ( 2 ) ( f) of the Staff Regulations, namely,
                                                                             removal from post without withdrawal of entitlement to
The appellant maintains that its alternative claim against the               retirement pension, adopted on 30 September 1993 with
Council for the annulment of the last indent of Article 4 ( 2 )              effect from 1 December 1993 and prohibiting the
of Regulation ( EC ) No 3604/93 , in so far as it provides that              appellant from performing his duties until 30 November
institutions forming part of the 'general government sector'                 1993 , and, in so far as may be necessary, annul the
defined in accordance with the ESA are excluded from                         express decision rejecting the complaint against the said
the definition of ' financial institutions ' satisfies the                   disciplinary measure lodged by the appellant pursuant to
requirements for admissibility laid down by Article 173 of                   Article 90 ( 2 ) of the Staff Regulations on 23 February
the EC Treaty. The appellant argues essentially that, when                   1994 and notified on 24 February 1994, and,
adopting the contested Regulation, the Council, being                        consequently, rule that the respondent should reinstate


title: Case T-66/11: Action brought on 28 January 2011 — Present Service Ullrich v OHIM — Punt-Nou (babilu)

text:
               19.3.2011

               EN

               Official Journal of the European Union

               C 89/26

         Action brought on 28 January 2011 — Present Service Ullrich v OHIM — Punt-Nou (babilu)
   (Case T-66/11)
   2011/C 89/50
   Language in which the application was lodged: English

      Parties

      Applicant: Present Service Ullrich Verwaltungs-GmbH (Erlangen, Germany) (represented by: A. Graf von Kalckreuth, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Punt-Nou, SL (Ontynient, Spain)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in case R 773/2010-2;

               —

               Dismiss the opposition against the applicant’s trade mark ‘babilu’ and declare that the trade mark ‘babilu’ should be registered for all the goods and services applied for;

               —

               Order the defendant to bear the costs of the proceedings

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘babilu’, for goods and services in classes 16, 18, 35, 36, 38 and 41 — Community trade mark application No 7205305

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

      Mark or sign cited in opposition: Community trade mark registration No 3363645 of the word mark ‘BABIDU’, for amongst others, services in class 35

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

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was likelihood of confusion on the part of the relevant public.


title: Case C-115/08: Reference for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 17 March 2008 — Land Oberösterreich v ČEZ, a.s.

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/14

         Reference for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 17 March 2008 — Land Oberösterreich v ČEZ, a.s.
   (Case C-115/08)
   (2008/C 142/22)
   Language of the case: German
   Referring court
   Landesgericht Linz
   Parties to the main proceedings

      Applicant: Land Oberösterreich

      Defendant: ČEZ, a.s.
   Questions referred

               1.

                           (a)

                           Does it constitute a measure having equivalent effect within the meaning of Article 28 EC for an undertaking operating a power plant in a Member State, in compliance with the laws of that State and the relevant provisions of Community law, by means of which it produces electricity that it delivers to various Member States, to be forced, pursuant to an injunction in respect of a potential nuisance emanating from that power plant granted by a judgment of a court in a neighbouring Member State — which is enforceable in all Member States pursuant to Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — to make changes to that installation in order to bring it in line with the technical rules of another Member State or even — if, because of the complexity of the plant as a whole, those changes are impossible to make — to stop operations at the installation, in a situation in which that court, as a result of an interpretation of national legal provisions given by the highest court of that country, is not allowed to take into account the existing operating authorisation for the power plant granted by the authorities of the Member State in which the plant is located, even though it would take into account, in the context of such an action for an injunction, an authorisation for an installation granted by the domestic authorities, with the effect that no judgment granting an injunction would be delivered in relation to an installation operating under an authorisation granted by the domestic authorities?

                           (b)

                           Are the grounds for justification laid down in the EC Treaty to be interpreted as meaning that it is unlawful, in any event, to make a distinction under the laws of a Member State between authorisations for installations granted by the domestic authorities and those granted by the authorities of another Member State, in so far as that distinction is motivated by the desire to protect only the national economy but not the economy of another Member State, since this is a purely economical motive which is not recognised as worthy of protection in the context of the fundamental freedoms?

                           (c)

                           Are the grounds of justification laid down in the EC Treaty and the corresponding principle of proportionality to be interpreted as meaning that a global distinction made under the laws of a Member State between authorisations for installations granted by the domestic authorities and authorisations for installations granted by the authorities of another Member State is per se unlawful, because the operation of an installation authorised by the authorities of the Member State in which it is located has to be assessed by the national court of another Member State in each individual case on the basis of the actual danger posed by operation of the installation to public policy, public security or public health or on the basis of other recognised overriding requirements of public interest?

                           (d)

                           Having regard to the principle of proportionality that must be considered in the context of the grounds of justification, are the courts of a Member State under an obligation, in any event, to treat the operating authorisation for an installation granted in the Member State in which it is located like an authorisation for an installation granted by the domestic authorities if the authorisation granted in the Member State in which the installation is located is essentially equivalent, in legal terms, to that of an authorisation granted by the domestic authorities?

                           (e)

                           For the purposes of considering the above questions, is it relevant that the installation authorised in the Member State in which it is located is a nuclear power plant, if, in another Member State in which an action for an injunction to prevent a nuisance which it is feared will emanate from a nuclear power plant is pending, operation of that type of installation is not permitted per se, even though other nuclear facilities are operated there?

                           (f)

                           If the interpretation of the national provisions which is described in Question 1(a) infringes Article 28 EC, are the courts of the Member State in which such an action for an injunction is pending under an obligation to interpret domestic law in a way conforming with Community law, so that the term ‘officially authorised installation’ can cover both operating authorisations granted by the domestic authorities and those granted by the authorities of another Member State?

               2.

                           (a)

                           Is it compatible with the prohibition of restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State laid down in Article 43 EC for an undertaking which operates a power plant in a Member State in compliance with the laws of that State and the relevant provisions of Community law to be forced, pursuant to an injunction in respect of a potential nuisance emanating from that power plant granted by a judgment of a court in a neighbouring Member State — which is enforceable in all Member States pursuant to Regulation (EC) No 44/2001 — to make changes to that installation in order to bring it in line with the technical rules of another Member State or even — if, because of the complexity of the plant as a whole, those changes are impossible to make — to stop operations at the installation, in a situation in which that court, as a result of an interpretation of national legal provisions given by the highest court in that country, is not allowed to take into account the existing operating authorisation for the power plant granted by the authorities of the Member State in which the plant is located, even though it would take into account, in the context of such an action for an injunction, an authorisation for an installation granted by the domestic authorities, with the effect that no judgment granting an injunction would be delivered in relation to an installation operating under an authorisation granted by the domestic authorities?

                           (b)

                           Are the grounds on which freedom of establishment can be restricted to be interpreted as meaning that it is unlawful, in any event, to make a distinction under the laws of a Member State between authorisations for installations granted by the domestic authorities and those granted by the authorities of another Member State, in so far as that distinction is motivated by the desire to protect only the national economy but not the economy of another Member State, since this is a purely economical motive which is not recognised as worthy of protection in the context of the fundamental freedoms?

                           (c)

                           Are the grounds justifying a restriction of the freedom of establishment which are laid down in the EC Treaty and, in particular, the principle of proportionality to be interpreted as meaning that a global distinction made under the laws of a Member State between authorisations for installations granted by the domestic authorities and authorisations for installations granted by the authorities of another Member State is per unlawful, because the operation of an installation authorised by the authorities of the Member State in which it is located has to be assessed by the national court of another Member State in each individual case on the basis of the actual danger posed by operation of the installation to public policy, public security or public health or on the basis of other recognised overriding requirements of public interest?

                           (d)

                           Having regard to the principle of proportionality that must be considered in the context of justifying interference with the freedom of establishment, are the courts of a Member State under an obligation, in any event, to treat the operating authorisation for an installation granted in the Member State in which it is located like an authorisation for an installation granted by the domestic authorities if the authorisation granted in the Member State in which the installation is located is essentially equivalent, in legal terms, to that of an authorisation granted by the domestic authorities?

                           (e)

                           For the purposes of considering the above questions, is it also relevant in the context of the freedom of establishment that the installation authorised in the Member State in which it is located is a nuclear power plant, if, in another Member State in which an action for an injunction against that nuclear power plant is pending, operation of that type of installation is not permitted per se, even though other nuclear facilities are operated there?

                           (f)

                           If the interpretation of the national provisions which is described in Question 2(a) infringes Article 43 EC, are the courts of the Member State before which such an action for an injunction is pending under an obligation to interpret domestic law in a way conforming with Community law, so that the term ‘officially authorised installation’ can cover both operating authorisations granted by the domestic authorities and those granted by the authorities of another Member State?

               3.

                           (a)

                           Does it constitute prohibited indirect discrimination on grounds of nationality within the meaning of Article 12 EC for the courts of a Member State to take into account authorisations for installations granted by the domestic authorities in the context of a private action for an injunction brought against those installations, with the result that claims for cessation of operation of the installation or its modification are excluded, but not to take into account in the context of such actions for an injunction authorisations of installations located in other Member States granted by the authorities of those Member States?

                           (b)

                           Does such discrimination fall within the scope of the Treaty, since it affects the legal conditions under which undertakings operating such installations may establish themselves in an EU Member State as well as the legal conditions under which such undertakings produce the good ‘electricity’ and deliver it to other EU Member States, so that it is at least indirectly connected to the realisation of the fundamental freedoms?

                           (c)

                           Can such discrimination be justified on objective grounds, given that the relevant courts of the Member State do not conduct an individual assessment taking into consideration the facts underlying the authorisation of the installation in the Member State in which it is located? Would it not be consistent with the principle of proportionality — at least if the condition is fulfilled that the authorisation is essentially equivalent, from a legal point of view, to an authorisation for an installation granted by the domestic authorities — for the courts of the other Member State to take into account the authorisation granted by the authorities in the Member State in which the installation is located?

                           (d)

                           If the interpretation of the national provisions which is described in Question 3(a) infringes Article 12 EC, are the courts of the Member State before which such an action for an injunction is pending under an obligation to interpret domestic law in a way conforming with Community law, so that the term ‘officially authorised installation’ can cover both operation authorisations granted by the domestic authorities and those granted by the authorities of another Member State?

               4.

                           (a)

                           Does the principle of loyal cooperation laid down in Article 10 EC with respect to the application of Community law also apply in respect of relationships among Member States?

                           (b)

                           Is it to be inferred from the principle of loyal cooperation that the Member States must not render other Member States' exercise of public authority more onerous or even impossible and does this apply, in particular, to decisions by Member States to concerning the planning, construction and operation of nuclear installations within their territory?

                           (c)

                           If the interpretation of the national provisions which is described in Question 4(a) infringes Article 10 EC, are the courts of the Member State before which such an action for an injunction is pending under an obligation to interpret domestic law in a way conforming with Community law, so that the term ‘officially authorised installation’ can cover both operation authorisations granted by the domestic authorities and those granted by the authorities of another Member State?


title: Case T-16/10 R: Order of the President of the General Court of 26 March 2010 — Alisei v Commission (Interim measures — Programme establishing a ‘food facility’ intended for developing countries — Call for proposals for the grant of funding — Refusal of funding — Application for suspension of operation — Lack of interest in bringing proceedings — Disregard of formal requirements — Inadmissibility)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/37

         Order of the President of the General Court of 26 March 2010 — Alisei v Commission
   (Case T-16/10 R)
   (Interim measures - Programme establishing a ‘food facility’ intended for developing countries - Call for proposals for the grant of funding - Refusal of funding - Application for suspension of operation - Lack of interest in bringing proceedings - Disregard of formal requirements - Inadmissibility)
   2010/C 134/64
   Language of the case: Italian

      Parties

      Applicant: Alisei (Rome, Italy) (represented by: F. Sciaudone, R. Sciaudone and A. Neri, lawyers)

      Defendant: European Commission (represented by: L. Prete and P. van Nuffel, Agents)

      Re:

   Application for interim measures relating to the selection of applications for funding submitted under the ‘Facility for rapid response to soaring food prices in developing countries’ (EuropeAid/128608/C/ACT/Multi).

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


20150731052617052015/C 270/483242015TC27020150817EN01ENINFO_JUDICIAL20150623383921Case T-324/15: Action brought on 23 June 2015 — Volkswagen v OHIM — Bagpax Cargo Systems (BAG PAX)
 ---documentbreak--- C2702015EN3810120150623EN0048381392Action brought on 23 June 2015 — Volkswagen v OHIM — Bagpax Cargo Systems (BAG PAX)
   (Case T-324/15)2015/C 270/48Language in which the application was lodged: German
      Parties

      Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: U. Sander, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Bagpax Cargo Systems e.K. (Saarlouis, Germany)

      Details of the proceedings before OHIM

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

      Trade mark at issue: Community word mark ‘BAG PAX’

      Procedure before OHIM: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 23 April 2015 in Case R 1971/2014-4

      Form of order sought

   The applicant claims that the Court should:

            —

            annul the contested decision;

            —

            order OHIM to pay the costs.

      Plea in law

            —

            Infringement of Article 15(1)(a) of Regulation No 207/2009.


title: Case C-223/03: Judgment of the Court (Grand Chamber) of  21 February 2006  (reference for a preliminary ruling of VAT and Duties Tribunal, Manchester (United Kingdom)) — University of Huddersfield Higher Education Corporation v Commissioners of Customs & Excise (Sixth VAT Directive — Article 2(1), Article 4(1) and (2), Article 5(1) and Article 6(1) — Economic activity — Supplies of goods — Supplies of services — Transaction designed solely to obtain a tax advantage)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/3

         Judgment of the Court (Grand Chamber) of 21 February 2006 (reference for a preliminary ruling of VAT and Duties Tribunal, Manchester (United Kingdom)) — University of Huddersfield Higher Education Corporation v Commissioners of Customs & Excise
   (Case C-223/03) (1)

   (Sixth VAT Directive - Article 2(1), Article 4(1) and (2), Article 5(1) and Article 6(1) - Economic activity - Supplies of goods - Supplies of services - Transaction designed solely to obtain a tax advantage)
   (2006/C 131/04)
   Language of the case: English
   Referring court
   VAT and Duties Tribunal, Manchester (United Kingdom)
   Parties to the main proceedings

      Applicant: University of Huddersfield Higher Education Corporation

      Defendant: Commissioners of Customs & Excise
   Re:
   Reference for a preliminary ruling — VAT and Duties Tribunal, Manchester — Interpretation of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes –Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Concept of supplies of goods and services subject to value added tax — Concept of economic activities — Contracts for lease and lease back having the sole aim of obtaining a tax advantage
   Operative part of the judgment
   Transactions of the kind at issue in the main proceedings constitute supplies of goods or services and an economic activity within the meaning of Article 2(1), Article 4(1) and (2), Article 5(1) and Article 6(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, provided that they satisfy the objective criteria on which those concepts are based, even if they are carried out with the sole aim of obtaining a tax advantage, without any other economic objective.

      (1)  OJ C 213, 06.09.2003


title: Case T-80/13: Action brought on 13 February 2013 — Syrian Lebanese Commercial Bank v Council

text:
               23.3.2013

               EN

               Official Journal of the European Union

               C 86/28

         Action brought on 13 February 2013 — Syrian Lebanese Commercial Bank v Council
   (Case T-80/13)
   2013/C 86/48
   Language of the case: French

      Parties

      Applicant: Syrian Lebanese Commercial Bank S.A.L. (Beirut, Lebanon) (represented by: P. Vanderveeren, L. Defalque and T. Bontinck, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Article 25 of Council Decision 2012/739/CFSP of 29 November 2012 and Annex I.b thereto in so far as the applicant appears at No 34 of that annex;

               —

               Annul Article 1 of Council Implementing Regulation (EU) No 1117/2012 of 29 November 2012 in so far as it has the consequence of maintaining the applicant’s listing in Annex II to Council Regulation (EU) No 36/2012 by application of Article 1 of Council Implementing Regulation No 55/2012 of 23 January 2012 and paragraph 27 of the annex to that regulation;

               —

               Annul, in so far as necessary, the Council’s decision letter of 30 November 2012;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a lack of sufficient and precise reasons, since the Council merely set out vague and general considerations without indicating the specific and concrete reasons for its belief that the applicant must be made subject to restrictive measures.

               2.

               Second plea in law, alleging infringement of the rights of the defence, the right to a fair hearing and to effective judicial protection, since the applicant was not heard during the procedure of adoption of the contested acts and because of the Council’s implied refusal to produce the evidence justifying the nature and scope of the penalty.

               3.

               Third plea in law, alleging a manifest error of assessment as regards the implication of the applicant in the financing of the Syrian regime, since the Council has shown no proof, either before or after adoption of the contested acts, of the applicant’s participation in the financing of that regime.

               4.

               Fourth plea in law, alleging defects in the examination carried out by the Council, tainting by illegality the restrictive measures applied by the Council since the Council failed to examine the relevance and basis of the information and evidence on which restrictive measures may be based before adopting them.