title: Case T-298/09: Judgment of the General Court (SecondChamber) of 20 September 2011 — Evropaïki Dynamiki v Commission (Public service contracts — Community tendering procedure — Supply of external services for educational programmes — Award of the contract to several tenderers — Tenderer’s ranking — Action for annulment — Obligation to state the reasons on which the decision is based — Grounds for exclusion from the contract award procedure — Article 93(1)(f) of the Financial Regulation — Tender validity period — Non-contractual liability)

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/16

         Judgment of the General Court (SecondChamber) of 20 September 2011 — Evropaïki Dynamiki v Commission
   (Case T-298/09) (1)

   (Public service contracts - Community tendering procedure - Supply of external services for educational programmes - Award of the contract to several tenderers - Tenderer’s ranking - Action for annulment - Obligation to state the reasons on which the decision is based - Grounds for exclusion from the contract award procedure - Article 93(1)(f) of the Financial Regulation - Tender validity period - Non-contractual liability)
   2011/C 319/31
   Language of the case: English

      Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

      Defendant: European Commission (represented by: N. Bambara and E. Manhaeve, Agents, assisted by P. Wytinck, lawyer)

      Re:

   APPLICATION, first, for annulment of two Commission decisions, communicated in two separate letters of 12 May 2009 ranking the applicant, for its tenders in response to the open call for tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) (OJ 2008/S 158-212752), for Lot No 1 (IS (information system) Development and Maintenance) and for Lot No 2 (IS (information system) Studies, Testing, Training and Support), as second contractor for each of those lots and, secondly, for damages

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 233, 26.9.2009.


title: Judgment of the Court of First Instance of 12 December 2002 in Case T-110/01: Vedial SA v Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier word mark SAINT-HUBERT 41 — Application for a figurative Community mark including the word "HUBERT" — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

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


title: Case T-194/13: Action brought on 5 April 2013 — United Parcel Service v Commission

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/30

         Action brought on 5 April 2013 — United Parcel Service v Commission
   (Case T-194/13)
   2013/C 147/54
   Language of the case: English

      Parties

      Applicant: United Parcel Service, Inc. (Atlanta, United States) (represented by: A. Ryan, B. Graham, Solicitors, W. Knibbeler and P. Stamou, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul in its entirety the Decision of the European Commission of 30 January 2013, C(2013) 431 (Comp/M.6570 — UPS/TNT Express), prohibiting the proposed acquisition by UPS of TNT Express N.V., in so far as it prohibits the concentration; and

               —

               Order the defendant to pay the costs of the present proceedings, including those of any potential intervener.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission committed an error of law and a manifest error of assessment when examining the likely price effects of the concentration. Further, the Commission breached its obligation to state reasons and infringed UPS’ rights of defence by substantially modifying the econometric model submitted by UPS without hearing UPS or explaining adequately the modifications made.

               2.

               Second plea in law, alleging that by setting an arbitrary standard for verifiability of efficiencies, the Commission erred in law and diverged from the standard set by the case law. Further, the Commission erred in law and committed a manifest error of assessment in assigning insufficient or zero weight to efficiencies that it accepted in principle. Finally the Commission breached UPS’ rights of defence by basing its rejection of efficiencies on objections that UPS had not been confronted with previously.

               3.

               Third plea in law, alleging that the Commission erred in law and committed a manifest error of assessment by misapplying the concept of closeness of competition. It equally erred in concluding, without substantive evidence, that the merged entity’s potential price increases would be accommodated by the rival to the merged entity.

               4.

               Fourth plea in law, alleging that the Commission breached UPS’ rights of defence by denying it access to relevant and exculpatory evidence. Moreover, the Commission failed to state reasons, erred in law and in fact and committed a manifest error of assessment when it concluded that competitors who are not close competitors could not expand to constrain effectively the merged entity in the foreseeable future.

               5.

               Fifth plea in law, alleging that the Commission erred in law and committed a manifest error of assessment in analyzing customers’ ability to restrain the merged entity.


title: Case C-27/14: Request for a preliminary ruling from the Landgericht Duisburg (Germany) lodged on 20 January 2014 — Elfriede Stermann, Hans Gerd Stermann v Zurich Deutscher Herold Lebensversicherung AG

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/24

         Request for a preliminary ruling from the Landgericht Duisburg (Germany) lodged on 20 January 2014 — Elfriede Stermann, Hans Gerd Stermann v Zurich Deutscher Herold Lebensversicherung AG
   (Case C-27/14)
   2014/C 112/30
   Language of the case: German

      Referring court

   Landgericht Duisburg

      Parties to the main proceedings

      Applicants: Elfriede Stermann, Hans Gerd Stermann

      Defendant: Zurich Deutscher Herold Lebensversicherung AG
   This Case was removed from the Register of the Court by Order of the Court of 14 February 2014.


title: Case F-25/06: Judgment of the Civil Service Tribunal (Second Chamber) of 5 July 2007 — Ider, Desorbay and Noschese v Commission (Staff cases — Members of the contract staff — Grading and remuneration — Office for Infrastructure and Logistics Brussels (OIB) — Staff entrusted with executive duties — Former salaried employees under Belgian law — Change of applicable regime — Equal treatment)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/47

         Judgment of the Civil Service Tribunal (Second Chamber) of 5 July 2007 — Ider, Desorbay and Noschese v Commission
   (Case F-25/06) (1)

   (Staff cases - Members of the contract staff - Grading and remuneration - Office for Infrastructure and Logistics Brussels (OIB) - Staff entrusted with executive duties - Former salaried employees under Belgian law - Change of applicable regime - Equal treatment)
   (2007/C 199/90)
   Language of the case: French
   Parties

      Applicants: Béatrice Ider (Halle, Belgium), Marie-Claire Desorbay (Meise, Belgium) and Lino Noschese (Braine-le-Château, Belgium) (represented by: L. Vogel, lawyer)

      Defendant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios)
   Re:
   Annulment of the Commission's decision dismissing the complaints brought by the applicants against the decisions fixing their grades and remuneration as members of the contract staff.
   Operative part of the judgment
   The Tribunal:

               1.

               Annuls the decision by which the Commission of the European Communities fixed Ms Ider's remuneration under a contract for a member of the contract staff signed in April 2005;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Commission of the European Communities to bear its own costs and to pay half of Ms Ider's costs;

               4.

               Orders Ms Ider to bear half of her own costs;

               5.

               Orders Ms Desorbay and Mr Noschese to bear their own costs.

      (1)  OJ C 108, 6.5.2006, p. 34.


title: Case T-340/03: Action brought on 2 October 2003 by Wanadoo Interactive S.A. against the Commission of the European Communities

text:
C 289/34              EN                          Official Journal of the European Union                                       29.11.2003
In the event that the Court does not make the declaration                 —     annul the decision of the Commission of 1 October 2003
primarily sought against the contested regulation, the appli-                   fixing the new organigram of DG ESTAT in so far as it
cants seek in the alternative a declaration from the Court that                 does not thereby constitute a reassignment of the appli-
Article 2 of Regulation No 1260/2001 is unlawful and                            cant where another individual reassignment measure is
inapplicable in so far as it enables the Commission when                        ordered in addition;
setting the derived intervention price on the basis of market
trends to disregard the effect of unrestricted imports free of            —     order the Commission to pay her EUR 25 000 by way of
duty.                                                                           compensation for the non-material damage suffered as a
                                                                                result of irregular conduct;
Second, the applicants assert that the statement of reasons for           —     order the Commission to pay the costs in their entirety.
the contested regulation appears inadequate and contradictory
given that, by that measure, the Commission has altered its
own practice of preceding years — inasmuch as Italy was not
included in the States covered by regionalisation — without
                                                                          Pleas in law and main arguments
any objective justification for that change and without taking
account of the specific situation arising from the abovemen-
tioned imports free of duty of white sugar from the Balkans.
                                                                          The applicant, a Commission official, was transferred on
                                                                          16 January 2003 to Eurostat as Director of the Social Statistics
                                                                          Directorate. On 9 July 2003, in view of the serious irregularities
Third, and in the alternative, the applicants submit that even            which allegedly took place in Eurostat, the Commission
without taking account of the imports free of duty of white
                                                                          decided to move all Eurostat’s directors, including the appli-
sugar from the Balkans in assessing domestic supply, the                  cant, to posts as Principal Advisers. On 1 October 2003, the
Commission should not deemed Italy to be a ‘deficit area’.                Commission decided on a new structure for the reformed DG
                                                                          ESTAT departments and decided that, in principle, it would
                                                                          open applications for the posts in the new directorates to both
(1) OJ L 162 of 1.7.2003, p. 24.
                                                                          external and internal applicants, without taking account of the
(2) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the
    common organisation of the markets in the sugar sector (OJ            applicant. The applicant contests both those decisions claiming
    L 178 of 30.6.2001, p. 1).                                            that the alleged irregularities within Eurostat took place until
                                                                          2001 at the latest, while she was not posted there until 2003
                                                                          and was thus not involved in them. In support of her
                                                                          application, she alleges infringement of Articles 4, 7, 24, 25
                                                                          and 47 of the Staff Regulations, breach of the principle of
                                                                          equal treatment and of prohibition of discrimination, the
                                                                          principle of sound administration, the principles ‘audi alteram
                                                                          partem’ and ‘patere legem’, manifest error of assessment, abuse
                                                                          of process and misuse of powers.
Action brought on 6 October 2003 by Gabrielle Clotuche
  against the Commission of the European Communities
                         (Case T-339/03)
                         (2003/C 289/69)
                                                                          Action brought on 2 October 2003 by Wanadoo Inter-
                   (Language of the case: French)                         active S.A. against the Commission of the European
                                                                                Communities
                                                                                (Case T-340/03)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                                (2003/C 289/70)
European Communities on 6 October 2003 by Gabrielle
Clotuche, residing in Brussels, represented by Pierre-Paul Van
Gehuchten, Gilbert Demez Jacques Sambon, lawyers.                                             (Language of the case: French)
The applicant claims that the Court should:
                                                                          An action against the Commission of the European Communi-
—     annul the decision of the Commission of 9 July 2003 to              ties was brought before the Court of First Instance of the
      reassign the applicant by transfer in the interest of the           European Communities on 2 October 2003 by Wanadoo
      service from her post as Director of the Social Statistics          Interactive S.A., whose registered office is in Issy-les-Mou-
      Directorate at Eurostat to a post as Principal Adviser at           lineaux (France), represented by O.W. Brouwer, H. Calvet,
      Eurostat;                                                           M. Pittie and J. Philippe, lawyers.
 ---pagebreak--- 29.11.2003              EN                         Official Journal of the European Union                                         C 289/35
The applicant claims that the Court should:                                     —     applied an erroneous test on the coverage of costs
                                                                                in place of the only relevant test, which showed that
                                                                                the full costs connected with the services concerned
—     annul the Commission’s decision of 16 July 2003,                                were covered for the whole of the period referred to
      imposing a fine of 10,35 million euros on the applicant;                        in the decision;
—     in the alternative, withdraw the fine or reduce its amount;               —     refused the applicant the right to align its prices on
                                                                                those charged by its competitors;
—     order the Commission to pay the costs.
                                                                                —     committed a serious error of law, exacerbated by
                                                                                obvious errors of assessment, in implementing the
                                                                                test for predatory pricing that it used, particularly
                                                                                by failing to take account of the highly competitive
Pleas in law and main arguments                                                       market context;
                                                                                —     concluded that a predatory pricing plan existed
The applicant, a French limited liability company 99 %-owned                          without adducing the necessary evidence.
by Wanadoo S.A., which is in turn owned as to 70,6 %
by France Telecom, challenges the Commission’s decision
accusing it of infringing Article 82 of the Treaty by charging             In the alternative, the applicant claims that the fine should be
predatory prices for its Pack eXtense and Wanadoo ADSL                     annulled, or very substantially reduced.
services which did not allow it to cover its variable costs from
March to August 2001 or its full costs from August 2001 until
15 October 2002, as part of plan aimed at pre-empting the
market for high-output internet access services. On that
basis, the Commission imposed a fine on the applicant of
10,35 million euros.
In support of its claims, the applicant argues:                            Action brought on 3 October 2003 by El Corte Inglés S.A.
                                                                           against the Office for Harmonisation in the Internal
—     Infringement of essential procedural requirements, and in                                     Market (OHIM)
      particular of its defence rights, in that the Commission:
                                                                                (Case T-341/03)
      —     infringed the principle that violations are to be
            attributed to the offender only, in that it held against
            the applicant matters which it imputes to the ‘France                                   (2003/C 289/71)
            Telecom Group’ and on which neither the applicant
            nor France Telecom were in a position to submit
            observations. In that respect, the applicant insists                             (Language of the case: Spanish)
            that France Telecom and the applicant itself are two
            distinct legal persons;
      —     failed to communicate its final test on the coverage           An action against the Office for Harmonisation in the Internal
            of costs in a statement of objections, and, in its             Market (OHIM) was brought before the Court of First Instance
            decision, determined a duration of the infringement            of the European Communities on 3 October 2003 by El Corte
            longer than that mentioned in the statement of                 Inglés S.A, having its registered office in Madrid, represented
            objections;                                                    by Juan Luis Rivas Zurdo and Emilio López Leiva, lawyers.
      —     gave no reason for abandoning the principle of
            alignment of prices laid down by the Community                 The applicant claims that the Court should:
            case-law.
                                                                           —    set aside the decision of the First Board of Appeal of
—     Infringement of Article 82 of the EC Treaty, in that the                  OHMI of 9 July 2003 in Case R 0565/2002-1;
      Commission:
                                                                           —    refuse to register as a Comunity mark No 488.999
      —     gave an incorrect definition of the market, on which                DAVID LLOYD in Class 25, and
            the applicant had in any case never held a dominant
            position;                                                      —    order the other party or parties to pay the costs.


title: Case C-97/16: Judgment of the Court (Tenth Chamber) of 2 March 2017 (Request for a preliminary ruling from the Juzgado de lo Social No 3 de Barcelona — Spain) — José María Pérez Retamero v TNT Express Worldwide Spain S.L., Last Mile Courier S.L., formerly Transportes Sapirod S.L., Fondo de Garantía Salarial (Fogasa) (Reference for a preliminary ruling — Social policy — Directive 2002/15/EC — Protection of the safety and health of workers — Organisation of working time — Road transport — Mobile worker — Self-employed driver — Concept — Inadmissibility)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/8

         Judgment of the Court (Tenth Chamber) of 2 March 2017 (Request for a preliminary ruling from the Juzgado de lo Social No 3 de Barcelona — Spain) — José María Pérez Retamero v TNT Express Worldwide Spain S.L., Last Mile Courier S.L., formerly Transportes Sapirod S.L., Fondo de Garantía Salarial (Fogasa)
   (Case C-97/16) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 2002/15/EC - Protection of the safety and health of workers - Organisation of working time - Road transport - Mobile worker - Self-employed driver - Concept - Inadmissibility))
   (2017/C 121/10)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social No 3 de Barcelona

      Parties to the main proceedings

      Applicant: José María Pérez Retamero

      Defendants: TNT Express Worldwide Spain S.L., Last Mile Courier S.L., formerly Transportes Sapirod S.L., Fondo de Garantía Salarial (Fogasa)

      Operative part of the judgment

   The request for a preliminary ruling made by the Juzgado de lo Social No 3 de Barcelona (Labour Court, Barcelona, Spain) is inadmissible.

      (1)  OJ C 156, 2.5.2016.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 21 January 1999 in Joined Cases T-185/96, T-189/96 and T-190/96: Riviera Auto Service Établissements Dalmasso SA and Others v. Commission of the European Communities (Competition - Article 85 of the EC Treaty - Standard-form exclusive distributorship agreements for motor vehicles - Category exemption - Rejection of complaints lodged by former dealers - Error of law - Manifestly erroneous assessment - Action for annulment - Action for damages)

text:
C 86/16               EN                Official Journal of the European Communities                                  27.3.1999
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                     of 28 January 1999                                                 of 21 January 1999
in Case T-14/96: Bretagne Angleterre Irlande (BAI) v.              in Joined Cases T-185/96, T-189/96 and T-190/96:
        Commission of the European Communities (1)                 Riviera Auto Service EÂtablissements Dalmasso SA and
(State aid Ð Action for annulment Ð Decision                         Others v. Commission of the European Communities (1)
terminating an examination procedure initiated under
Article 93(2) of the EC Treaty Ð Definition of State aid           (Competition Ð Article 85 of the EC Treaty Ð
    within the meaning of Article 92(1) of the EC Treaty)          Standard-form exclusive distributorship agreements for
                                                                   motor vehicles Ð Category exemption Ð Rejection of
                        (1999/C 86/32)                             complaints lodged by former dealers Ð Error of law Ð
                                                                   Manifestly erroneous assessment Ð Action for annulment
                                                                                Ð Action for damages)
                (Language of the case: French)
                                                                                (1999/C 86/33)
In Case T-14/96: Bretagne Angleterre Irlande (BAI),
established at Roscoff (France), represented by                                   (Language of the case: French)
Jean-Michel Payre, of the Paris Bar, with an address for
service in Luxembourg at the Chambers of Aloyse May,
31 Grand-Rue, v. Commission of the European
Communities (Agents: GeÂrard Rozet and Anders Christian
Jessen), supported by Kingdom of Spain (Agents: in the             In Joined Cases T-185/96, T-189/96 and T-190/96: Riviera
written procedure, Luis PeÂrez de Ayala Becerril and, in the       Auto Service EÂtablissements Dalmasso SA, established in
oral procedure, Santiago Ortíz Vaamonde) and Ferries               Nice (France), represented by Christian Bourgeon, of the
Golfo de Vizcaya SA, established at Bilbao (Spain),                Paris Bar, with an address for service in Luxembourg at
represented, in the written procedure, by Julian Ellison           the Office of FrancËois Brouxel, 6 Rue Zithe, Garage des
and, in the oral procedure, by Mr Ellison and Mark                 Quatre ValleÂes SA, established in Albertville (France),
Clough, Solicitors, with an address for service in                 Pierre Joseph Tosi, residing in Albertville, Palma SA (CIA
Luxembourg at the Chambers of Messrs Bonn and                      Ð Groupe Palma), established in Salon-de-Provence
Schmidt, 61 Avenue Guillaume Ð application for                     (France), Christophe and GeÂrard Palma, residing in
annulment of the decision of the Commission of 7 June              Salon-de-Provence, represented by Jean-Louis and GiseÁle
1995 terminating the examination procedure initiated               Portolano, of the Aix-en-Provence Bar (France), with an
under Article 93(2) of the EC Treaty (aid in favour of             address for service in Luxembourg at the Office of Nathan
Ferries Golfo de Vizcaya SA), notified to the Spanish              Roy, 18 Rue des Glacis, against Commission of the
Government on 11 Juli 1995 and published in the Official           European Communities (Agents: Giuliano Marenco, Guy
Journal of the European Communities (OJ C 321,                     Charrier and Loic Guerin), supported by Groupe
1.12.1995, p. 4) Ð the Court of First Instance (First              Volkswagen France SA, established in Villers-Cotterets
Chamber, Extended Composition), composed of: B.                    (France), represented by Joseph Vogel, of the Paris Bar,
Vesterdorf, President, and C. W. Bellamy, R. M. Moura              with an address for service in Luxembourg at the Office of
Ramos, J. Pirrung and P. Mengozzi, Judges; B. Pastor,              Arendt et Medernach, 8Ð10 Rue Mathias Hardt Ð
Principal Administrator, for the Registrar, has given a            application, first, for annulment of decisions to reject
judgment on 28 January 1999, in which it:                          complaints alleging infringements of Article 85(1) of the
                                                                   EC Treaty (Cases T-185/96, T-189/96 and T-190/96) and,
                                                                   secondly, for damages for loss allegedly suffered as a result
                                                                   of those decisions (Cases T-189/96 and T-190/96) Ð the
1. Annuls the decision of the Commission of 7 June 1995            Court of First Instance (Third Chamber), composed of:
     terminating the examination procedure initiated under         Tiili, President, A. Potocki and J. D. Cooke, Judges; B.
     Article 93(2) of the EC Treaty (aid in favour of Ferries      Pastor, Principal Administrator, for the Registrar, has given
     Golfo de Vizcaya SA), notified to the Spanish                 a judgment on 21 January 1999, in which it:
     Government on 11 July 1995 and published in the
     Official Journal of the European Communities.
                                                                   1. Dismisses the application in Case T-185/96.
2. Orders the Commission to pay the costs.
3. Orders the Kingdom of Spain and Ferries Golfo de                2. Dismisses as inadmissible the second head of claim in
     Vizcaya SA to bear their own costs.                                Cases T-189/96 and T-190/96.
(1) OJ C 77, 16.3.1996.
                                                                   3. Dismisses the remaining heads of claim in Cases
                                                                        T-189/96 and T-190/96.
 ---pagebreak--- 27.3.1999             EN                  Official Journal of the European Communities                                  C 86/17
4. Orders the parties, including the intervener, to bear               JUDGMENT OF THE COURT OF FIRST INSTANCE
     their own costs.                                                                     of 28 January 1999
                                                                      in Case T-264/97: D v. Council of the European Union (1)
(1) OJ C 54, 22.2.1997.
                                                                     (Officials Ð Refusal to grant the applicant the household
                                                                                allowance in respect of his partner)
                                                                                (1999/C 86/35)
                                                                                (Language of the case: French)
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                     of 11 February 1999
                                                                     In Case T-264/97: D, an official of the Council of the
in Case T-200/97: Carmen JimeÂnez v. Office for                      European Union, residing in Brussels, represented by
Harmonisation in the Intenal Market (trade marks and                 Jean-NoeÈl Louis, Thierry Demaseure and FrancËoise
                     designs) (OHIM) (1)                             Parmentier, of the Brussels Bar, with an address for service
                                                                     in Luxembourg at the Offices of Fiduciaire Myson SARL,
(Officials Ð Competitions Ð Inclusion on the list of                 30 Rue de Cessange, supported by the Kingdom of
suitable candidates Ð Procedural irregularity Ð Principle            Sweden (Agent: Lotti Nordling), v. Council of the
   of non-discrimination Ð Manifest error of assessment)             European Union (Agents: TheÂreÁse Blanchet and Eva
                        (1999/C 86/34)                               Karlsson) Ð application for annulment of the Council's
                                                                     decision refusing to grant the applicant the household
                                                                     allowance in respect of his partner Ð the Court of First
                (Language of the case: French)                       Instance (Second Chamber), composed of: A. Potocki,
                                                                     President, and C. W. Bellamy and A. W. H. Meij, Judges;
                                                                     B. Pastor, Principal Administrator, for the Registrar, has
In Case T-200/97: Carmen JimeÂnez, an official of the                given a judgment on 28 January 1999, in which it:
Commission of the European Communities, residing at
Alicante (Spain), represented by Georges Vandersanden, of
                                                                     1. Dismisses the action.
the Brussels Bar, with an address for service in
Luxembourg at the Offices of Fiduciaire Myson SARL, 30
Rue de Cessange, v. Office for Harmonisation in the                  2. Orders the parties, including the intervener, to bear
Internal Market (trade marks and designs) (OHIM)                         their own costs.
(Agents: Fernando López de Rego and Antonio Grilli) Ð
application for annulment of the decision of the selection
board of the Office for Harmonisation in the Internal                (1) OJ C 357, 22.11.1997.
Market (trade marks and designs) of 30 October 1996 not
to include the applicant's name on the list drawn up in the
context of the Competition for the drawing-up of a list of
suitable candidates of either sex to fill category C posts as
members of the temporary staff (reference AT/C)' Ð the
Court of First Instance (Third Chamber), composed of: M.
                                                                       JUDGMENT OF THE COURT OF FIRST INSTANCE
Jaeger, President, and K. Lenaerts and J. Azizi, Judges; A.
Mair, Administrator, for the Registrar, has given a                                       of 10 February 1999
judgment on 11 February 1999, in which it:
                                                                     in Case T-35/98: AndreÂ Hecq and Syndicat des Fonction-
                                                                     naires Internationaux et EuropeÂens (SFIE) v. Commission
                                                                                of the European Communities (1)
1. Annuls the decision of the selection board of the
     Office for Harmonisation in the Internal Market                 (Officials Ð Bureau of the local Staff Committee Ð
     (trade marks and designs) of 30 October 1996 not to                Elections Ð Duties of the institution Ð Admissibility)
     include the applicant's name on the list drawn up in
     the context of the Compettion for the drawing-up of                                    (1999/C 86/36)
     a list of suitable candidates of either sex to fill
     category C posts as members of the temporary staff                              (Language of the case: French)
     (reference AT/C)'.
                                                                     In Case T-35/98: AndreÂ Hecq, an official of the
2. Orders the Office for Harmonisation in the Internal               Commission of the European Communities, residing in
     Market (trade marks and designs) (OHIM) to pay the              Brussels, and Syndicat des Fonctionnaires Internationaux
     costs.                                                          et EuropeÂens (SFIE), established in Brussels, represented
                                                                     by Lucas Vogel, of the Brussels Bar, with an address for
(1) OJ C 7, 10.1.1998.                                               service in Luxembourg at the Chambers of Christian
                                                                     Kremer, 8Ð10 Rue Mathias Hardt, v. Commission of the
                                                                     European Communities (Agents: Gianluigi Valsesia and
                                                                     Julian Currall) Ð application for annulment of the


title: Case T-6/05: Action brought on 12 January 2005 by DEF-TEC Defense Technology GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/32

         Action brought on 12 January 2005 by DEF-TEC Defense Technology GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-6/05)
   (2005/C 82/61)
   Language in which the application was lodged: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 12 January 2005 by DEF-TEC Defense Technology GmbH established in Frankfurt am Main, (Germany) represented by H. Daniel, lawyer.
   Defense Technology Corporation of America, established in Jacksonville, Florida (USA) was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the Decision of the Second Board of Appeal of the OHIM of 8 November 2004 in case R 493/2002-2;

               —

               declare the invalidity of the opposition Decision of OHIM No. 722/2002;

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               The applicant

               Community trade mark sought:

               Figurative mark ‘FIRST DEFENSE AEROSOL PEPPER PROJECTOR’ for products in class 5 (pharmaceutical products etc.), 8 (hand tools and implements etc.) and 13 (ammunition etc.) - Community trade mark application No 643668

               Proprietor of mark or sign cited in the opposition proceedings:

               Defense Technology Corporation of America

               Mark or sign cited in opposition:

               National international, word and figurative marks ‘FIRST DEFENSE’

               Decision of the Opposition Division:

               Refusal of registration

               Decision of the Board of Appeal:

               Appeal dismissed

               Pleas in law:

               Violation of Article 8(3) of Regulation 40/94 (1). The applicant contests the finding that it has failed to furnish sufficient evidence in order to prove that the filing of the contested mark was with the owner's consent.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 11, p. 1).


title: Case T-374/09: Action brought on 28 September 2009 — Lorenz Shoe Group v OHIM — Fuzhou Fuan Leather Plastics Clothing Making (Ganeder)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/57

         Action brought on 28 September 2009 — Lorenz Shoe Group v OHIM — Fuzhou Fuan Leather Plastics Clothing Making (Ganeder)
   (Case T-374/09)
   2009/C 282/106
   Language in which the application was lodged: German

      Parties

      Applicant: Lorenz Shoe Group AG (Taufkirchen, Austria) (represented by: M. Douglas, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Fuzhou Fuan Leather Plastics Clothing Making Co. Ltd (Fujian, People’s Republic of China)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of 16 July 2009 in Case R 1289/2008-1;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Fuzhou Fuan Leather Plastics Clothing Making Co. Ltd

      Community trade mark concerned: the word mark ‘Ganeder’ for goods in Classes 14, 18 and 25 (Application No 5 108 774)

      Proprietor of the mark or sign cited in the opposition proceedings: Lorenz Shoe Group AG (formerly shoe fashion group LORENZ AG)

      Mark or sign cited in opposition: The word mark ‘Ganter’ for goods in Class 25 (Community trade mark No 469 262), in respect of opposition only to the registration for goods in that class

      Decision of the Opposition Division: Dismissal of the opposition

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), since there is a likelihood of confusion between the trade marks at issue.

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


title: Case C-160/07: Order of the President of the Court of 11 September 2007 — Commission of the European Communities v Portuguese Republic

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/35

         Order of the President of the Court of 11 September 2007 — Commission of the European Communities v Portuguese Republic
   (Case C-160/07) (1)

   (2007/C 297/71)

      Language of the case: Portuguese

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

      (1)  OJ C 129, 9.6.2007.


18.12.1999            EN                      Official Journal of the European Communities                                    C 366/33
       Removal from the register of Case T-198/96 (1)                           Removal from the register of Case T-97/98 (1)
                        (1999/C 366/76)                                                         (1999/C 366/79)
                   (Language of the case: French)
                                                                                (Language of the case: French)
By order of 19 October 1999 the President of the First
Chamber of the Court of First Instance of the European                   By order of 9 July 1999 the President of the Fifth Chamber of
Communities has ordered the removal from the register of                 the Court of First Instance of the European Communities has
Case T-198/96: Christine Dalby v Commission of the European              ordered the removal from the register of Case T-97/98:
Communities.                                                             Maurizio Gastaldello v Committee of the Regions of the
                                                                         European Union.
(1) OJ No C 54 of 22.2.1997.
                                                                         (1) OJ No C 258 of 15.8.1998.
       Removal from the register of Case T-218/96 (1)
                        (1999/C 366/77)                                         Removal from the register of Case T-78/99 (1)
                                                                                (1999/C 366/80)
                   (Language of the case: French)
By order of 19 October 1999 the President of the First                                    (Language of the case: English)
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of
Case T-218/96: Paul Hodson v Commission of the European                  By order of 13 October 1999, the President of the First
Communities.                                                             Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the register of
                                                                         Case T-78/99: Sonia Marion Elder and Robert Dale Elder v
(1) OJ No C 54 of 22.2.1997.                                             Commission of the European Communities.
                                                                         (1) OJ No C 174 of 19.6.1999.
       Removal from the register of Case T-59/98 (1)
                        (1999/C 366/78)
                                                                                Removal from the register of Case T-162/99 R
                  (Language of the case: English)
                                                                                (1999/C 366/81)
By order of 13 October 1999, the President of the Fifth
Chamber, Extended Composition, of the Court of First Instance
of the European Communities has ordered the removal from                                   (Language of the case: French)
the register of Case T-59/98: Honeywell Inc. v Commission of
the European Communities.
                                                                         By order of 22 October 1999, the President of the Court of
                                                                         First Instance of the European Communities has ordered
(1) OJ No C 234 of 25.7.1998.                                            the removal from the register of Case T-162/99 R: Luigia
                                                                         Dricot-Daniele, Patricia De Palma and Claudine Hamptaux v
                                                                         Commission of the European Communities.


title: Case T-399/12: Order of the General Court of 4 June 2013 — Cosma Moden v OHMI — s.Oliver Bernd Freier (COSMA) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/81

         Order of the General Court of 4 June 2013 — Cosma Moden v OHMI — s.Oliver Bernd Freier (COSMA)
   (Case T-399/12) (1)

   (Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)
   2013/C 225/180
   Language of the case: German

      Parties

      Applicant: Cosma Moden GmbH & Co. KG (Emsdetten, Germany) (represented by: J. Meyer, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Schifko, acting as Agent)

      Other party/parties to the proceedings before the Board of Appeal of OHIM intervening before the General Court: s.Oliver Bernd Freier GmbH & Co. KG (Rottendorf, Germany) (represented by: S. Körber and B. Bleifeld, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 4 July 2012 (Case R 2010/2010-4) concerning opposition proceedings between Cosma Moden GmbH & Co. KG and s.Oliver Bernd Freier & Co. KG.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               The applicant and the other party to the proceedings before the Board of Appeal shall bear their own costs and each shall pay half of the costs of the defendant.

      (1)  OJ C 331, 27.10.2012.


title: Case C-206/03: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Chancery Division, by order of that court dated 7 December 2000, in the case of Commissioners of Customs and Excise against SmithKline Beecham plc

text:
C 158/16               EN                        Official Journal of the European Union                                           5.7.2003
      employment of female workers, which came into force                Reference for a preliminary ruling by the High Court of
      on 1 August 2001. In that regulation exceptions from               Justice (England and Wales), Chancery Division, by order
      the employment prohibition are made merely for women,              of that court dated 7 December 2000, in the case of
      inter alia, in managerial positions, and trainees.                 Commissioners of Customs and Excise against SmithKline
                                                                                Beecham plc
      The directive does indeed itself contain certain restrictions
      concerning the prohibition of unequal treatment                                                 (Case C-206/03)
      (Article 2(2) and (3) of the directive), but in the present
      case they cannot be applied in order to justify the
                                                                                (2003/C 158/27)
      prohibition of employment in issue. Although activities
      carried out underground in the mining industry are
      physically and mentally extremely demanding, they are
      not activities which can be carried out only by men. It is
      not therefore possible to rely on the argument that, by            Reference has been made to the Court of Justice of the
      reason of the nature or context in which they are carried          European Communities by an order of the High Court
      out, the sex of the worker constitutes a determining               of Justice (England and Wales), Chancery Division, dated
      factor. The dangers to which women are exposed by                  7 December 2000, which was received at the Court Registry
      working in mines are generally, in essence, no different           on 14 May 2003, for a preliminary ruling in the case of
      from those to which men are also exposed. These dangers            Commissioners of Customs and Excise and SmithKline Beech-
      do not therefore justify any different treatment of men            am plc on the following questions:
      and women. Inasmuch as the Austrian Government refers
      simply to the generally weaker constitution of women in            1)     Is Heading 3004 of annex I to Council Regulation
      comparison with men, the Commission cannot accept                         No 2658/87 (1), as amended, to be interpreted as includ-
      that argument. It cannot be ruled out that there are                      ing a product in the form of a nicotine patch to be used
      female workers for whom employment in mining under-                       to assist when trying to stop smoking, consisting of an
      ground is less oppressive than for a comparable male                      adhesive-plaster impregnated with nicotine which is
      worker with a lesser physical constitution. A general                     absorbed through the skin/presented in a foil pack?
      prohibition of employment of women in mining under-
      ground is therefore disproportionate.                              2)     In circumstances where
      Moreover, it is necessary to adjust the Austrian rules to                 (a)    a customs authority of a Member State has given
      the directive even if the mining industry is in decline;                         binding tariff information pursuant to article 12 of
      otherwise the practical effect of the prohibition of                             Council Regulation 2913/92 (2) (the Customs Code)
      discrimination under Community law would be impaired.                            in respect of a product;
                                                                                (b) the binding tariff information in question is consist-
      Finally, the Austrian Government misses the point in                             ent with a classification opinion previously pub-
      arguing that it is bound by the ILO Convention concern-                          lished by the World Customs Organisation and
      ing the Employment of Women in Underground Work                                  referred to in a communication by the Commission
      and Mines of 1937 and that therefore Community                                   pursuant to article 12(5) of the Customs Code;
      law does not preclude the employment prohibition
      in question. The Republic of Austria must, however,                       (c)    the importer appeals to a national tribunal pursuant
      denounce that Convention.                                                        to article 243 of the Code; and
                                                                                (d) the tribunal disagrees with the classification opinion;
—     The prohibition of employment of women in work
      involving compressed air and diving:                               is article 12(5) of the Code to be interpreted as requiring or
                                                                         permitting the Tribunal to annul the customs authority’s
      As regards the rules on the employment of women in                 decision without -substituting binding tariff information
      work involving compressed air and diving, a general                inconsistent with the classification opinion of the World
      prohibition of the employment of women, without any                Customs Organisation but declaring that the product is
      examination of the individual case, cannot be justified by         properly classifiable otherwise than in accordance with that
      the alleged special need for the protection of women.              opinion?
                                                                         (1 ) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
                                                                              tariff and statistical nomenclature and on the Common Customs
( 1) OJ 1976 L 39, p. 40.                                                     Tariff OJ L 256, 7.9.1987, p. 1.
                                                                         (2 ) Council Regulation (EEC) No 2913/92 of 12 October 1992
                                                                              establishing the Community Customs Code OJ L 302, 19.10.1992,
                                                                              p. 1.


title: Case T-112/00: Action brought on 2 May 2000 by Iberotam S.A. and 7 others against the Commission of the European Communities

text:
8.7.2000               EN                     Official Journal of the European Communities                                     C 192/19
product, not smokable without further processing, and there-             — Infringement of Article 37 of the EC Treaty: the notification
fore not excisable. There is no published decision determining               system provided for by the regulation in issue disregards
the issue and giving reasons for the classification chosen.                  the objectives of Article 37, inasmuch as its implemen-
Consequently, it requested access to complete minutes of the                 tation will lead to the disappearance of a considerable
meeting of the Excise Duty Committee of 29 and 30 April                      number of economic operators and will result, at the same
1998 and of the subsequent meeting of 28 and 29 October                      time, in the sources of supply of plant protection products
1999 at which the duty treatment of expanded tobacco was                     being concentrated amongst a few multinational under-
apparently determined. This request was definitively refused                 takings, thus enabling the latter to limit supplies and,
by letter of the Secretary General of 8 March 2000.                          consequently, to raise prices.
The applicant contests the validity of this decision. The pleas          — Failure to have regard to Directive 91/414/EEC: the
in law and main arguments are similar to those put forward in                contested regulation alters the criteria governing appli-
Case T-41/00.                                                                cations for authorisation to market plant protection prod-
                                                                             ucts, so that they differ from those laid down in the
                                                                             abovementioned directive, which constitutes the legal basis
(1) OJ 1995 L 291, p. 40.                                                    of the regulation.
                                                                         — Infringement of the principles of legal certainty, the
                                                                             protection of legitimate expectations and sound manage-
                                                                             ment: the new notification system prevents the applicants
                                                                             from marketing certain substances in respect of which they
                                                                             held marketing authorisations under the system provided
                                                                             for by Directive 91/414/EEC, without that situation being
Action brought on 2 May 2000 by Iberotam S.A. and                            justified on any public-interest grounds.
7 others against the Commission of the European Com-
                             munities                                    — Infringement of the Agreement on Trade-Related Aspects
                                                                             of Intellectual Property Rights (WTO) (3): the contested
                         (Case T-112/00)                                     regulation confers on persons holding the confidential
                                                                             information which must be provided in order to obtain
                                                                             authorisation to market plant protection products an
                         (2000/C 192/35)
                                                                             exclusive protection exceeding that arising from the prin-
                                                                             ciples underlying the provisions of the abovementioned
                   (Language of the case: French)                            Agreement, in particular Articles 8(2) and 39(3) thereof.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               (1) OJ 2000 L 55, p. 25.
                                                                         (2) OJ 1991 L 230, p. 1.
European Communities on 2 May 2000 by Iberotam S.A.,                     (3) OJ L 336 of 23.12.1994, p. 214.
established in Barcelona (Spain), and 7 others, represented by
Miquel Roca Junyent and Joan Roca Sagarra, of the Barcelona
Bar.
The applicants claim that the Court should:
— declare null and void Commission Regulation (EC)
     No 451/2000 of 28 February 2000 laying down the
     detailed rules for the implementation of the second                 Action brought on 2 May 2000 by Aktionsgemeinschaft
     and third stages of the work programme referred to in               Recht und Eigentum e.V. (ARE) against the Commission
     Article 8(2) of Council Directive 91/414/EEC;                                       of the European Communities
— order the European Commission to pay the costs.                                                 (Case T-114/00)
Pleas in law and principal arguments                                                              (2000/C 192/36)
The applicants contest Commission Regulation (EC)
                                                                                (Language of the case: German)
No 451/2000 of 28 February 2000(1) laying down the detailed
rules for the implementation of the second and third stages of
the work programme referred to in Article 8(2) of Council                An action against the Commission of the European Communi-
Directive 91/414/EEC concerning the placing of plant protec-             ties was brought before the Court of First Instance of the
tion products on the market (2), the object of which is a gradual        European Communities on 2 May 2000 by Aktionsgemein-
examination of active substances placed on the market with a             schaft Recht und Eigentum e.V. (ARE), of Borken (Federal
view to their possible inclusion in Annex I to that directive.           Republic of Germany), represented by Prof. Matthias Pechstein,
The pleas put forward are as follows:                                    of Berlin.


title: Case C-77/02: Reference for a preliminary ruling by the Verwaltungsgericht Sigmaringen by order of that Court of 10 December 2001 in the case of Ms Erika Steinicke against Bundesanstalt für Arbeit

text:
C 118/18               EN                   Official Journal of the European Communities                                     18.5.2002
Reference for a preliminary ruling by the Verwaltungsger-              The Commission claims that the Court should:
icht Sigmaringen by order of that Court of 10 December
2001 in the case of Ms Erika Steinicke against Bundesan-               —     declare that, by failing to adopt and to communicate
                          stalt für Arbeit                                   to the Commission within the time-limit laid down
                                                                             (16 September 1999) the plans, outlines and summaries
                                                                             required under Articles 11 and 4(1) of Council Directive
                          (Case C-77/02)                                     96/59/EC (1) of 16 September 1996 on the disposal of
                                                                             polychlorinated biphenyls and polychlorinated ter-
                                                                             phenyls (PCB/PCT), the Hellenic Republic has failed to
                         (2002/C 118/28)                                     fulfil its obligations under the EC Treaty;
                                                                       —     order the Hellenic Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht                Pleas in law and main arguments
Sigmaringen (Administrative Court, Sigmaringen) of
10 December 2001, received at the Court Registry on 7 March
2002, for a preliminary ruling in the case of Ms Erika Steinicke       In accordance with the third paragraph of Article 249 EC,
against Bundesanstalt für Arbeit on the following question:            directives are binding, as to the result to be achieved, upon
                                                                       each Member State to which they are addressed.
Do Articles 141 of the EC Treaty, Directives 75/117/EEC (1),
76/207/EEC (2) and/or Directive 97/81/EC (3) preclude the rule         Under the first paragraph of Article 10 EC, Member States are
in Paragraph 72(b)(1)(1)(2) of the Bundesbeamtengesetz (Law            to take all appropriate measures, whether general or particular,
on public servants), in the 3 March 1999 version that was in           to ensure fulfilment of the obligations arising out of the Treaty
force until 30 June 2000, to the effect that part-time status on       or resulting from action taken by the institutions of the
grounds of old age may be accorded only to public servants             Community.
who have worked full-time for a total of at least three of the
five years preceding their conversion to such part-time status,
if significantly more women than men work part-time, and               It is not disputed by the Hellenic Republic that it must adopt
are consequently excluded under that provision from being              measures to comply with the abovementioned directive.
accorded part-time status on grounds of old age?
                                                                       The Commission records that until now the Hellenic Republic
                                                                       has not adopted the appropriate measures for the full incorpor-
(1) OJ L 45, p. 19.                                                    ation of the directive at issue into Greek law.
(2) OJ L 39, p. 40.
(3) OJ 1998 L 14, p. 9.
                                                                       (1) OJ L 243, 24.9.1996, p. 31.
                                                                       Reference for a preliminary ruling by De Arbeidsrecht-
                                                                       bank van het Arrondissement Tongeren by order of that
Action brought on 12 March 2002 by the Commission of                   Court of 11 March 2002 in the case of Nina Kristiansen
the European Communities against the Hellenic Republic                         against Rijksdienst voor Arbeidsvoorziening
                                                                                (Case C-92/02)
                          (Case C-83/02)
                                                                                (2002/C 118/30)
                         (2002/C 118/29)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of De Arbeidsrechtbank
An action against the Hellenic Republic was brought before             van het Arrondissement Tongeren (Tongeren District Labour
the Court of Justice of the European Communities on 12 March           Court) of 11 March 2002, received at the Court Registry on
2002 by the Commission of the European Communities,                    15 March 2002, for a preliminary ruling in the case of Nina
represented by Hans Stovlbaek and Minas Konstantinidis, Legal          Kristiansen against Rijksdienst voor Arbeidsvoorziening on
Advisers.                                                              the following questions:


title: Case C-322/99: Reference for a preliminary ruling from the Bundesfinanzhof (Federal Finance Court) by order of that court of 15 July 1999 in the case of Finanzamt Burgdorf v Hans-Georg Fischer

text:
20.11.1999              EN                   Official Journal of the European Communities                                        C 333/15
at the Court Registry on 13 August 1999, for a preliminary              2. breach of Community law regarding the principle that
ruling in the criminal proceedings against Armando Caterino                 proceedings should be inter partes and failure to state
on the following question:                                                  sufficient reasons;
‘For the purposes of Community law, is the term “transport              3. failure to adjudicate on a crucial point in the dispute;
[of] waste on a professional basis” contained in Article 12 of          4. breach of Community law regarding defamation and
Directive 91/156/EEC(1) equivalent to “transport of waste                   failure to state sufficient reasons;
produced by others”, regard also being had to the notion
of “producer” of waste under Article 1 of that directive?               5. distortion of the facts relating to the alleged ‘confusion of
Consequently, is Article 1(19) of Law No 426/1998, which                    interests’ and failure to state sufficient reasons or to define
implements that directive, in itself in accordance or at variance           the legal situation correctly;
with the above Community legislation properly construed?’
                                                                        6. distortion of the facts relating to the alleged reluctance of
                                                                            Ismeri’s representative to resign from the management
 (1) Council Directive of 18 March 1991 amending Directi-
     ve 75/442/EEC on waste, OJ L 78 of 26 March 1991, p. 32.               board of the ARTM (agency for transMediterranean net-
                                                                            works) and failure to state sufficient reasons.
Appeal brought on 24 August 1999 by Ismeri Europa Srl                   Reference for a preliminary ruling from the Bundes-
against the judgment delivered on 15 June 1999 by the                   finanzhof (Federal Finance Court) by order of that court
Third Chamber of the Court of First Instance of the                     of 15 July 1999 in the case of Finanzamt Burgdorf v
European Communities in Case T-277/97 between Ismeri                                           Hans-Georg Fischer
Europa Srl and Court of Auditors of the European
                            Communities                                                          (Case C-322/99)
                         (Case C-315/99 P)                                                       (1999/C 333/32)
                          (1999/C 333/31)                               Reference has been made to the Court of Justice of the
                                                                        European Communities by a judgment of the Bundesfinanzhof
                                                                        of 15 July 1999, which was received at the Court Registry on
An appeal against the judgment delivered on 15 June 1999 by             27 August 1999, for a preliminary ruling in the case of
the Third Chamber of the Court of First Instance of the                 Finanzamt Burgdorf v Hans-Georg Fischer on the following
European Communities in Case T-277/97 between Ismeri                    question of interpretation of Directive 77/388/EEC (1):
Europa Srl and the Court of Auditors of the European
Communities was brought before the Court of Justice of the              (1) Do subsequent (deductible) bodywork repairs and respray-
European Communities on 24 August 1999 by Ismeri Europa                     ing work carried out on a car (on the purchase of which
Srl, whose registered office is in Rome, represented by Sergio              VAT was not deductible) mean, on transfer from the
Ristuccia and Gian Luigi Tosato, of the Rome Bar.                           business,
The appellant claims that the Court should:                                 (a) that the car must be viewed as goods on which
                                                                                VAT was partly deductible under Article 5(6) of the
— set aside the judgment delivered on 15 June 1999 by the                        Directive, or
     Court of First Instance in Case T-277/97;
                                                                            (b) that the subsequent expenditure is to be viewed as a
— uphold the forms of order sought by Ismeri at first                            component, on which VAT was deductible, of the
     instance, which are to be deemed to have been reapplied                     goods?
     for in their entirety;
                                                                        (2) If Question (1) is answered in the affirmative, what are the
— order the Court of Auditors to pay the costs incurred both                business goods disposed of which are to be taxed under
     at first instance and in these appeal proceedings.                     Article 5(6) of the Directive:
                                                                            (a) the car including the work carried out on it (bodywork
Pleas and main arguments                                                         repairs and respraying) or
                                                                            (b) only the work carried out (bodywork repairs and
Pursuant to Article 225 of the EC Treaty and Article 49 of the                   respraying)?
EC Statute of the Court of Justice, Ismeri appeals against the
above judgment on the following grounds:                                (3) If Question (2) is answered in the affirmative: Is the basis
                                                                            of assessment under Article 11A(1)(b) of the Directive the
1. flaws in the procedure before the Court of Instance (failure             purchase price of the car (or an equivalent car) together
     to rule on the application for a hearing of oral evidence              with the cost of repairs each determined as at the time of
     and an inadequate preparatory inquiry) to the detriment of             disposal, or only the price of the (tax deductible) repairs
     the applicant;                                                         carried out?
 ---pagebreak--- C 333/16               EN                   Official Journal of the European Communities                                      20.11.1999
(4) What is the relationship between Article 5(6) and                  Reference for a preliminary ruling from the Hoge Raad
    Article 5(7)(c) of the Directive?                                  der Nederlanden by judgment of that court of 24 August
                                                                       1999 in the case of G. van de Water against Staatssecreta-
(5) If the answer to Question (1) is to the effect that the                                    ris van Financiën
    subsequent (tax deductible) work carried out (bodywork
    repairs and respraying) is not subject to tax on disposal of                                (Case C-325/99)
    the goods (car) under Article 5(6) of the Directive, is the
    deduction of input tax on these services to be adjusted                                     (1999/C 333/34)
    under Article 20(1)(b) of the Directive?
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Hoge Raad der
(1) OJ 1977 L 145, p. 1.                                               Nederlanden (Supreme Court of the Netherlands) of 24 August
                                                                       1999, received at the Court Registry on 31 August 1999, for
                                                                       a preliminary ruling in the case of G. van de Water against
                                                                       Staatssecretaris van Financiën on the following question:
                                                                       Can the (mere) holding of a product subject to excise duty
                                                                       within the meaning of Article 3(1) of Council Direc-
                                                                       tive 92/12/EEC (1) be regarded as a release for consumption
Reference for a preliminary ruling from the Bundes-                    within the meaning of Article 6(1) of that Directive, if and in
finanzhof (Federa1 Finance Court) by order of that court               so far as duty has not already been levied on it pursuant to
of 15 July 1999 in the case of Finanzamt Düsseldorf-                   the applicable provisions of Community law and national
              Mettmann v Klaus Brandenstein                            legislation?
                         (Case C-323/99)                               (1) OJ 1992 L 76, p. 1.
                         (1999/C 333/33)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Bundesfinanzhof              Reference for a preliminary ruling from the Hoge Raad
of 15 July 1999, which was received at the Court Registry on           der Nederlanden by judgment of that court of 24 August
27 August 1999, for a preliminary ruling in the case of                1999 in the case of Stichting ‘Goed Wonen’ (formerly
Finanzamt Düsseldorf-Mettmann v Klaus Brandenstein on the              Woningbouwvereniging ‘Goed Wonen’) against Staatsse-
following question:                                                                          cretaris van Financiën
Under the first sentence of Article 5(6) of Directive                                           (Case C-326/99)
77/388/EEC (1), the application by a taxable person of goods
forming part of his business assets for his private use, where                                  (1999/C 333/35)
the value added tax on the goods in question or the component
parts thereof was wholly or partly deductible, is to be treated        Reference has been made to the Court of Justice of the
as supplies made for consideration.                                    European Communities by judgment of the Hoge Raad der
                                                                       Nederlanden (Supreme Court of the Netherlands) of 24 August
1. Is this provision applicable where, although VAT on the             1999, received at the Court Registry on 31 August 1999, for
    goods themselves was not deductible, VAT was deductible            a preliminary ruling in the case of Stichting ‘Goed Wonen’
    on the services or supplies which the taxable person               (formerly Woningbouwvereniging ‘Goed Wonen’) against
    ordered or received in respect of those goods after their          Staatssecretaris van Financiën on the following questions:
    acquisition?
                                                                       1.     Is Article 5(3) of the Sixth Directive (1) to be interpreted
2. What does the term ‘component’ mean in the context of               as meaning that rights in rem entitling the holder thereof to
    this provision?                                                    use immovable property may be treated by the national
                                                                       legislature as corporeal rights only if the remuneration agreed
3. How is the basis of assessment to be determined for a               in respect of the grant, transfer, modification, waiver or
    disposal, where VAT is wholly or partly deductible, not on         termination of those rights is at least equivalent to the financial
    the goods disposed of, but on some of their components?            value of the property concerned?
4. Is the deduction of input tax which a taxable person has            2.     Are Article 13(B)(b) and Article 13(C)(a) of the Sixth
    claimed in respect of services or supplies for goods on the        Directive to be interpreted as meaning that the national
    purchase of which VAT was not deductible to be adjusted            legislature may treat the terms ‘leasing or letting’ as covering
    under Article 20 of Directive 77/388/EEC if the first sen-         not only leasing and/or letting in the sense applied to those
    tence of Article 5(6) of Directive 77/388/EEC is not appli-        terms by civil law but also any other form in which immovable
    cable?                                                             property is made available for use otherwise than by way of
                                                                       the supply thereof?
(1) OJ 1977 L 145, p. 1.
                                                                       (1) OJ 1977 L 145, p. 1.


title: Case C-32/17 P: Appeal brought on 23 January 2017 by Apcoa Parking Holdings GmbH against the order of the General Court (Seventh Chamber) made on 8 November 2016 in Joined Cases T-268/15 and T-272/15, Apcoa Parking Holdings GmbH v European Union Intellectual Property Office (EUIPO)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/15

         Appeal brought on 23 January 2017 by Apcoa Parking Holdings GmbH against the order of the General Court (Seventh Chamber) made on 8 November 2016 in Joined Cases T-268/15 and T-272/15, Apcoa Parking Holdings GmbH v European Union Intellectual Property Office (EUIPO)
   (Case C-32/17 P)
   (2017/C 151/21)
   Language of the case: German

      Parties

      Appellant: Apcoa Parking Holdings GmbH (represented by: A. Lohmann, Rechtsanwalt)

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

      Form of order sought

   The appellant claims that the Court of Justice should:

               1.

               Set aside the order of the General Court of the European Union (Seventh Chamber) of 8 November 2016 in Joined Cases T-268/15 and T-272/15;

               2.

               Annul the decisions of the Fourth Board of Appeal of EUIPO (formerly OHIM) of 25 March 2015 in the appeal proceedings in Cases R 2062/2014-4 and R 2063/2014-4;

               3.

               Order EUIPO to pay the costs.

      Grounds of appeal and main arguments

   According to the appellant, the order is based on a procedural error (first ground of appeal). Furthermore, it infringes EU law. The General Court failed to take account of essential factual circumstances (second ground of appeal). The General Court distorted certain facts (third ground of appeal). The order infringes the principle of the unitary character of the EU trade mark (fourth ground of appeal).
   First ground of appeal: The General Court ruled on the actions without conducting a hearing. The appellant had, however, expressly requested that such a hearing be held.
   A hearing was necessary because the action was neither manifestly inadmissible nor manifestly lacking any legal basis. The order is therefore based on a procedural error.
   Second ground of appeal: The General Court’s order infringes EU law. Contrary to the General Court’s decision, there was no absolute ground for refusal within the meaning of Article 7(1)(c) of Regulation No 207/2009 (1) precluding registration of the marks at issue. The marks at issue do not concern descriptive indications.
   The General Court failed to take account of relevant factual circumstances. It assumed that, for the relevant public in the United Kingdom, the English term ‘parkway’ means a parking area at a railway station. In doing so, the General Court overlooked the fact that that question had already been addressed by the United Kingdom Trademark Office, and indeed in a hearing, and, following a thorough assessment, that Office had rejected the existence of a descriptive indication. When the term is used in isolation, as it is in the mark at issue, it does not have the meaning that the General Court attributed to it. Identical trade marks comprising the word ‘Parkway’ have been registered following an extension of international registration in a number of Member States (including Ireland) and, as national applications, have been considered to merit protection and to be eligible for registration in the United Kingdom.
   The General Court did not take any of this into account and merely indicated that, generally speaking, it is not bound by national decisions. In that regard, it overlooked the fact that, even though it is not bound, the General Court is not thereby released from its obligation to at least take account of and assess all relevant factual circumstances. National registrations of identical trade marks in Member States in the language area from which the designation at issue comes from are, in any event, relevant factual circumstances. A complete failure to take them into account constitutes an error in law.
   Third ground of appeal: The meaning of the term ‘Parkway’ on which the General Court based its decision was taken from two dictionary sources. However, it cited them in an incomplete and distorted way. The General Court did not take account of the fact that a general meaning of the term ‘Parkway’, taken in isolation — such as that on which the General Court based its decision — could not be inferred from those sources. That was also clear in detail from the decision of the United Kingdom Trademark Office concerning the registrability of the mark in that territory. The same sources were also discussed by the United Kingdom Trademark Office. The latter concluded that the meaning listed in the dictionary did not preclude protection of that term as a trade mark. If the General Court had also assessed those sources correctly, it would have arrived at the same conclusion. Distortion of facts also constitutes an error of law.
   Fourth ground of appeal: The order also infringes the principle of the unitary character of the EU trade mark. Even though there are no absolute grounds for refusal in any Member State, the General Court prevented the appellant from obtaining unitary protection for its marks in the European Union.

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


title: Case C-339/09: Judgment of the Court (First Chamber) of 16 December 2010 (reference for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Skoma-Lux sro v Celní ředitelství Olomouc (Common Customs Tariff — Tariff classification — Combined Nomenclature — Headings 2204 and 2206 — Beverage fermented on the basis of fresh grapes — Alcohol content of 15,8 % to 16,1 % by volume — Addition of corn alcohol and beet sugar during the course of production)

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/12

         Judgment of the Court (First Chamber) of 16 December 2010 (reference for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Skoma-Lux sro v Celní ředitelství Olomouc
   (Case C-339/09) (1)

   (Common Customs Tariff - Tariff classification - Combined Nomenclature - Headings 2204 and 2206 - Beverage fermented on the basis of fresh grapes - Alcohol content of 15,8 % to 16,1 % by volume - Addition of corn alcohol and beet sugar during the course of production)
   2011/C 55/19
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Applicant: Skoma-Lux sro

      Defendant: Celní ředitelství Olomouc

      Re:

   Reference for a preliminary ruling — Nejvyšší správní soud — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003 (OJ 2003 L 281, p. 1) — Red dessert wine Kagor — Classification under heading 2204 or heading 2206 of the combined nomenclature

      Operative part of the judgment

   Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005, must be interpreted as meaning that a beverage fermented on the basis of fresh grapes, sold in 0.75 litre bottles, with an alcohol content of 15,8 % to 16,1 % by volume, to which beet sugar and corn alcohol have been added during the course of its production, must be classified under heading 2206 of the Combined Nomenclature in Annex I to that regulation.

      (1)  OJ C 282, 21.11.2009.