title: Action brought on 21 April 1998 by Van Den Bergh Foods Limited against the Commission of the European Communities (Case T-65/98)

text:
C 234/28             EN                 Official Journal of the European Communities                                   25.7.98
Foundation, established at Long Hanborough (United                 navigation calculations that the crew would otherwise
Kingdom), Irish Agri-Food Development Ltd, established             have to handle.
at Dublin, represented by Mia Declercq-Devisch and Kurt
Haegeman, of the Brussels Bar, with an address for service         By the contested decision the Commission approved
in Luxembourg at the chambers of Marc Loesch, 11 Rue               individual aid granted by the French authorities to the
Goethe, v Commission of the European Communities                   French company Sextant, acting as project manager for
(Agent: Marie-JoseÂe Jonczy) Ð application for interim             research and development of a new FMS adapted to
measures in relation to a Commission decision of                   Airbus aircraft. Sextant is a subsidiary of Thomson CSF
17 March 1998 declaring inadmissible a tender submitted            and Aerospatiale.
by the applicant in response to an invitation to tender for
a project financed under the TACIS programme (Project
FDRUS 9701, entitled: Russia: Promoting Co-operative              The applicant is of the opinion that the Commission has
Ventures by Independent Farmers') Ð the President of the           infringed Article 92(3) of the EC Treaty by making an
Court of First Instance made an order on 26 May 1998,              incorrect assessment as to the precompetitive nature of the
the operative part of which is as follows:                         project and as to the incentive effect of the aid. Contrary
                                                                   to what the Commission asserts, the applicant believes
                                                                   that the aid should not have been approved under the
1. The application for interim measures is dismissed.              Framework.
                                                                   The applicant further contends that, because of the
2. The decision as to costs is reserved.
                                                                   complexity of the market, the Commission should have
                                                                   opened the procedure under Article 93(2) of the EC
                                                                   Treaty. By failing to do so, the Commission has infringed
                                                                   essential procedural requirements and has thus deprived
                                                                   the applicant of the opportunity to submit its comments
                                                                   on the proposed aid. If a procedure under Article 93(2)
                                                                   had been opened, the applicant would have submitted its
Action brought on 6 April 1998 by Honeywell Inc. against
                                                                   observations. The applicant argues that the Commission
      the Commission of the European Communities
                                                                   would not have concluded that the aid was compatible
                       (Case T-59/98)                              with the Treaty if it had been duly informed of all the
                                                                   pertinent facts and implications through an Article 93(2)
                        (98/C 234/56)
                                                                   procedure.
              (Language of the case: English)                      Finally, the applicant submits that Article 190 of the EC
                                                                   Treaty has been infringed in that the Commission gave
                                                                   insufficient reasons for the contested decision.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 6 April 1998
by Honeywell Inc., represented by Bernard van de Walle
de Ghelcke, with an address for service in Luxembourg at
the Offices of Loesch & Wolter, 11, rue Goethe.
                                                                   Action brought on 21 April 1998 by Van Den Bergh
                                                                   Foods Limited against the Commission of the European
The applicant claims that the Court should:                                                 Communities
                                                                                (Case T-65/98)
Ð annul Decision No. N584/97 of the Commission                                             (98/C 234/57)
    concerning aid to Sextant Avionique for the
    development of a new flight management system                                 (Language of the case: English)
    adapted to Airbus aircraft, communicated to the
    applicant by letter D/50515 of 5 February 1998; and
                                                                   An action against the Commission of the European
                                                                   Communities was brought before the Court of First
Ð order the Commission to pay the costs.                           Instance of the European Communities on 21 April 1998
                                                                   by Van Den Bergh Foods Limited, represented by Malcolm
                                                                   Nicholson and Michael Rowe, with an address for service
Pleas in law and main arguments adduced in support:                in Luxembourg at the Chambers of Elvinger, Hoss &
                                                                   Prussen, 2, place Winston Churchill.
The applicant, a company incorporated under law of the
United States of America, is a leading supplier of avionics        The applicant claims that the Court should:
systems and products for the commercial, military and
space market, who developed the industry's first flight            Ð declare the Commission decision of 11 March 1998
management system (FMS'). The FMS is the centrepiece                  relating to a proceeding under Articles 85 and 86 of
of an aircraft, able to control the flight from take-off all           the EC Treaty (Case Nos. IV/34.073, IV/35.436 and
the way through to landing, performing all of the complex              IV/34.395) void and annul it in its entirety;
 ---pagebreak--- 25.7.98               EN                Official Journal of the European Communities                                 C 234/29
Ð in the alternative, annul those parts of the decision            Ð Errors of law in the application of Article 86,
    that the Court finds erroneous or unsafe; and                      inasmuch as cabinet provisions on a free-on-loan basis
                                                                       do, in the circumstances of this industry, represent the
                                                                       normal means by which suppliers of impulse ice cream
Ð order the Commission to pay the applicant's costs.                   compete and should be objectively justified.
Pleas in law and main arguments adduced in support:                Ð Errors of law in the failure to respect property rights
                                                                       as required by general principles of law and under
The application concerns the prohibition of the practice of            Article 222 of the EC Treaty. HB submits in this
freezer cabinet exclusivity as adopted by the applicant Van            regard that the contested decision seeks to deprive it in
Den Bergh Foods Ltd (formerly HB and here referred to as               whole or substantial part of the value and enjoyment
such), a subsidiary of the Unilever N.V./PLC group, in the             of its investments in cabinets, which have no purpose
market for wrapped single-portion ice cream intended for               other than to support the storage and sale of the HB's
immediate consumption (impulse ice cream') in the                     ice creams at point of sale, so that to prohibit the
Republic of Ireland. Freezer-cabinet exclusivity involves              exclusivity clause is to deprive the applicant of rights
the provision by an ice-cream supplier of freezer cabinets,            representing the normal incidents of its cabinet
which are paid for and maintained by the supplier, to                  ownership.
retailers to be used exclusively for the sale of the impulse
ice-cream products of that supplier.                               Finally, the applicant submits that the contested decision
                                                                   has been taken in breach of Article 190 of the EC Treaty,
                                                                   and of a number of fundamental principles of Community
The decision that whenever the applicant supplies to a
                                                                   law, such as protection of legitimate expectations,
retailer one or more HB owned and maintained cabinets
                                                                   subsidiarity, legal certainty, proportionality and equal
for the stocking of impulse ice cream and that retailer
                                                                   treatment.
does not also have his own cabinet or one supplied by a
third-party ice-cream manufacturer, the exclusivity term of
the agreement under which the cabinet is supplied
infringes Article 85(1), and the inducement to the retailer
to accept the supply by HB of a cabinet (subject to a
condition of exclusivity) and its maintenance without
direct charges infringes Article 86. Moreover, the request         Action brought on 29 April 1998 by Luc Verheyden
for an exemption of the exclusivity term under                       against the Commission of the European Communities
Article 85(3) is rejected.                                                                (Case T-71/98)
                                                                                (98/C 234/58)
The applicant's pleas in law and main arguments can be
summarized as follows:
                                                                                (Language of the case: French)
Ð Manifest errors of assessment of facts, leading to
                                                                   An action against the Commission of the European
    errors of law. It is submitted on this point that the
                                                                   Communities was brought before the Court of First
    Commission is wrong to attribute a foreclosing effect
                                                                   Instance of the European Communities on 29 April 1998
    to agreements terminable at will by deeming them to
                                                                   by Luc Verheyden, residing at Angera (Italy), represented
    give rise to a so-called de facto tie', and by
                                                                   by Eric Boigelot, of the Brussels Bar, with an address for
    concluding on the basis of HB's popularity as a
                                                                   service in Luxembourg at the Chambers of Louis Schiltz, 2
    supplier of impulse ice cream that retail outlets are in
                                                                   Rue du Fort Rheinsheim.
    consequence deprived of the opportunity to replace
    freezer cabinets supplied by HB or to install further
    cabinets alongside the HB cabinet. On the contrary,            The applicant claims that the Court should:
    the number of retail outlets (even in the smallest size
    category) with two or more cabinets is substantial and         Ð annul the decision of 10 July 1997, signed by Mr
    has been increasing over time.                                     Holtbecker, refusing the applicant any compensation
                                                                       for the use of his personal vehicle in the performance
Ð Errors of law in the application of Article 85(1).                   of his duties or on the occasion thereof;
    According to the applicant, the basic form of cabinet
    agreement does not involve a restriction of                    Ð annul the decision implicitly rejecting the complaint
    competition and the exclusivity' provision similarly              submitted by the applicant against that refusal on
    falls outside that provision. Secondly, Article 85(1)              29 September 1997, which was registered as having
    will only apply to the HB cabinet agreements if they               been received on that date;
    foreclose the market to new entrants or to those
    seeking to build market share to a degree and extent
    inconsistent with non-applicability of the prohibition         Ð order the defendant to pay compensation amounting
    under Article 85(1), which should not be the case.                 to LIT 74 254 000 together with compensatory
                                                                       interest at the annual rate of 8 %, to be calculated in
                                                                       respect of the period from 24 March until the date of
Ð Errors of law in the assessment under Article 85(3).                 payment in full;


title: References for a preliminary ruling by the Pretura Circondariale di Roma - Sezione distaccata di Tivoli - by orders of that court of 15 and 22 February 1995 in criminal proceedings pending before it against Sandro Gallotti and Roberto Censi (Cases C-58/95 and C-75/95)

text:
No C 119/6               EN                Official Journal of the European Communities                                       13 . 5 . 95
Pleas in law and main arguments adduced in support:                   — on the one hand, only profits made at the balance sheet
                                                                            date are to be included, and
1 . The Court of First Instance misinterpreted the
      expression 'exceptional circumstances' in Article 25 ( 1 )      — on the other hand, account must be taken of income for
      of Regulation (EEC) No 1035/72. It was held                           the financial year to which the annual accounts relate,
      (paragraph 54 ) that that expression applies to                       irrespective of the date of receipt of such income,
      circumstances in which the Commission has discretion
      not to impose a countervailing charge, even though all
      the preconditions for the imposition thereof are met.           where a claim to a distribution on the basis of participating
      The appellant maintains that those are circumstances in         certificates ( GenuEscheine) conditional on sufficient
      which the Commission is obliged not to impose a                 distributable profit is capitalized in phase with the inclusion
      countervailing charge .                                         of profits by the distributing undertaking, even where the
                                                                      distribution does not become due until one bank working
                                                                      day following the general meeting of the distributing
2. The judgment appealed against was wrong to hold                    undertaking at which a resolution is passed appropriating
      (paragraph 62 ) that Article 3 ( 3 ) of Regulation ( EEC )      the profits for the preceding financial year ?
      No 2707/72 cannot be applied by analogy to a measure
      imposing a countervailing charge . According to the
      appellant, the effect sought to be achieved by a                (!) OJ No L 222, 14 . 8 . 1978 , p . 11 .
      protective measure adopted under Regulation ( EEC )
      No 2707/72 is absolutely equivalent to the effect sought
      by the countervailing charge .
3 . Manifestly erroneous and lacking in justification is the
      assessment by the Court of First Instance (paragraph 63 )
      that it is permissible concurrently to require the
      imposition of surveillance measures ( in the form for           References for a preliminary ruling by the Pretura
      example of an import certificate and security) and a            Circondariale di Roma — Sezione distaccata di Tivoli — by
      countervailing charge.                                          orders of that court of 15 and 22 February 1995 in criminal
                                                                      proceedings pending before it against Sandro Gallotti and
                                                                                Roberto Censi
4. Contrary to the holding in the judgment appealed
                                                                                ( Cases C-58/95 and C - 75/95 )
      against (paragraph 66 ), the 1990 framework agreement
      between the Community and Chile precludes the                                              (95/C 119/13 ).
      adoption of any unilateral measure including the
      imposition of a countervailing charge.
                                                                      References have been made to the Court of Justice of
                                                                      the European Communities by orders of the Pretura
5 . The appellant maintains that the Court of First Instance          Circondariale di Roma — Sezione Distaccata di Tivoli
      ignored its entirely particular situation which is              (Rome District Magistrates' Court — Tivoli Division ) of 15
      attributable to the fact that at the material time certain
                                                                      and 22 February 1995 , which were received at the Court
      restrictions still applied to the movement of capital in        Registry on 6 and 14 March 1995 respectively, for a
      Greece under Directive 88/361/EEC of 24 June 1988 .             preliminary ruling in criminal proceedings against Sandro
                                                                      Gallotti and Roberto Censi on the following questions:
                                                                      1 . What is the legal effect of the Italian Republic's failure to
                                                                             bring into force the necessary measures to implement
Reference for a preliminary ruling from the Finanzgericht                    Council Directive 91/156/EEC ( ] ) within the prescribed
KoIn by order of that court of 8 February 1995 in the case of               time limit ?
          Bruhler Kreditbank eG v. Finanzamt Briihl
                          (Case C-56/95 )                             2. In particular, may the existence of criminal penalties,
                           ( 95/C 119/12 )                                  and in particular those provided for in Articles 10 and
                                                                             25 ( Case C-75/95 ) and Article 25 etseq. ( Case C-58/95 )
                                                                             of Presidential Decree No 915/82 for failure to observe
Reference has been made to the Court of Justice of the
European Communities by an order of the Finanzgericht                       the Italian rules, be considered to conflict with
Kôln ( Finance Court, Cologne ) of 8 February 1995, which                    Community legislation where it seeks to ensure uniform
was received at the Court Registry on 3 March 1995 , for a                  treatment, from the point of view of penalties as well, for
preliminary ruling in the case of Bruhler Kreditbank eG v.                   operators in the Single Market.
Finanzamt (Tax Office) Briihl on the following question:
                                                                      i 1 ) Council    Directive   91/156/EEC       amending   Directive
Is it in accordance with the provisions of Article 31 ( 1 ) (c), in         75/442/EEC, OJ No L 78 , 26 . 3 . 1991 , p. 32 .
particular indent ( aa ), and Article 31 ( 1 ) (d ) of the Fourth
Directive ( 78/660/EEC ) of 25 July 1978 ( 1 ), according to
which:


title: Case T-463/07: Action brought on 12 December 2007 — Italy v Commission

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/51

         Action brought on 12 December 2007 — Italy v Commission
   (Case T-463/07)
   (2008/C 51/93)
   Language of the case: Italian
   Parties

      Applicant: Italian Republic (represented by: G. Aiello, Avvocato dello Stato)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Commission Decision C(2007) 4477 of 3 October 2006, notified on 4 October 2007, in so far as it excludes from Community financing and charges to the budget of the Italian Republic the financial consequences to be applied in connection with clearance of the expenditure financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund.

         Pleas in law and main arguments
   By the present action, the applicant challenges the lawfulness of the contested decision, in so far as it excludes from Community financing and charges to the budget of the Italian Republic the financial consequences to be applied in connection with clearance of the expenditure financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund.
   The actual expenditure excluded from that financing, which is the subject-matter of the action, relates to premiums for bovines, controls of the mills, the existence of the olive-oil register and the geographical information system for olives, controls of the yield, checks of the destination of the oil and dried fodder.
   In support of its claims, the applicant pleads:

               —

               infringement of Articles 15 and 24(1) of Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92;

               —

               infringement of Articles 9a(1) and (3), 10, 16, 26 and 28(1) of Commission Regulation (EC) No 2366/98 of 30 October 1998 laying down detailed rules for the application of the system of production aid for olive oil for the 1998/99, 1999/2000 and 2000/01 marketing years;

               —

               infringement of Article 11a of Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organisation of the market in oils and fats;

               —

               infringement of Article 14(3) of Council Regulation (EEC) No 2261/84 of 17 July 1984 laying down general rules on the granting of aid for the production of olive oil and of aid to olive oil producer organisations;

               —

               infringement of Articles 2, 8, 13 and 14 of Commission Regulation (EC) No 785/95 of 6 April 1995 laying down detailed rules for the application of Council Regulation (EC) No 603/95 on the common organisation of the market in dried fodder.


title: JUDGMENT OF THE COURT of 11 November 1997 in Case C-409/95 (reference for a preliminary ruling from the Verwaltungsgericht Gelsenkirchen): Hellmut Marschall v. Land Nordrhein-Westfalen (Equal treatment of men and women - Equally qualified male and female candidates - Priority for female candidates - Saving clause)

text:
C 7/4                 EN                 Official Journal of the European Communities                                     10. 1. 98
              JUDGMENT OF THE COURT                                      arrangements for products subject to excise duty and
                                                                         on the holding, movement and monitoring of such
                    of 11 November 1997
                                                                         products, even though that person has not brought an
in Case C-408/95 (reference for a preliminary ruling                     action for annulment of those provisions pursuant to
from the Tribunal de Commerce, Paris): Eurotunnel SA                     Article 173 of the EC Treaty and even though a court
and Others v. SeaFrance, formerly SocieÂteÂ Nouvelle                     of another Member State has already given judgment
d'Armement Transmanche SA (SNAT), interveners:                           in separate proceedings.
International Duty Free Confederation (IDFC) and
                           Others (1)
                                                                    2. Consideration of the questions has not disclosed any
(Transitional arrangements for tax-free shops Ð Council                  factor of such a kind as to affect the validity of
Directives 91/680/EEC and 92/12/EEC Ð Assessment of                      Article 1 (22) of Directive 91/680/EEC or Article 28
                            validity)                                    of Directive 92/12/EEC.
                          (98/C 7/07)
                                                                    (1) OJ C 46, 17. 2. 1996.
               (Language of the case: French)
 (Provisional translation; the definitive translation will be
         published in the European Court Reports)                                  JUDGMENT OF THE COURT
                                                                                of 11 November 1997
                                                                    in Case C-409/95 (reference for a preliminary ruling from
In Case C-408/95: reference to the Court under Article 177
                                                                    the Verwaltungsgericht Gelsenkirchen): Hellmut Marschall
of the EC Treaty from the Tribunal de Commerce
                                                                                v. Land Nordrhein-Westfalen (1)
(Commercial Court), Paris, for a preliminary ruling in the
proceedings pending before that court between Eurotunnel            (Equal treatment of men and women Ð Equally qualified
SA and Others and SeaFrance, formerly SocieÂteÂ Nouvelle            male and female candidates Ð Priority for female
d'Armement Transmanche SA (SNAT), interveners:                                        candidates Ð Saving clause)
International Duty Free Confederation (IDFC), Airport
Operators Association Ltd (AOA), Bretagne Angleterre                                          (98/C 7/08)
Irlande SA (BAI), trading as Brittany Ferries, Passenger
Shipping Association Ltd (PSA) Ð on the validity of the                            (Language of the case: German)
transitional arrangements for tax-free shops under
Article 28k of the Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonization of the laws of the                   (Provisional translation; the definitive translation will be
Member States relating to turnover taxes Ð Common                             published in the European Court Reports)
system of value added tax: uniform basis of assessment
(OJ L 145, 13. 6. 1977, p. 1), as inserted by Article 1 (22)
                                                                    In Case C-409/95: reference to the Court under Article 177
of Council Directive 91/680/EEC of 16 December 1991
                                                                    of the EC Treaty from the Verwaltungsgericht
supplementing the common system of value added tax and
                                                                    (Administrative Court) Gelsenkirchen (Germany), for a
amending Directive 77/388/EEC with a view to the
                                                                    preliminary ruling in the proceedings pending before that
abolition of fiscal frontiers (OJ L 376, 31. 12. 1991, p. 1),
                                                                    court between Hellmut Marschall and Land Nordrhein-
and under Article 28 of Council Directive 92/12/EEC of
                                                                    Westfalen Ð on the interpretation of Article 2 (1) and (4)
25 February 1992 on the general arrangements for
                                                                    of Council Directive 76/207/EEC of 9 February 1976 on
products subject to excise duty and on the holding,
                                                                    the implementation of the principle of equal treatment for
movement and monitoring of such products (OJ L 76,
                                                                    men and women as regards access to employment,
23. 3. 1992, p. 1) Ð the Court, composed of: G. C.
                                                                    vocational training and promotion, and working
Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm
                                                                    conditions (OJ L 39, 14. 2. 1976, p. 40) Ð the Court,
(Rapporteur), M. Wathelet (Presidents of Chambers), G. F.
                                                                    composed of: G. C. Rodríguez Iglesias, President, C.
Mancini, J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L.
                                                                    Gulmann, H. Ragnemalm and M. Wathelet (Presidents of
Murray, D. A. O. Edward, J.-P. Puissochet, G. Hirsch, P.
                                                                    Chambers), G. F. Mancini, J. C. Moitinho de Almeida,
Jann and L. Sevón, Judges; G. Tesauro, Advocate-General;
                                                                    P. J. G. Kapteyn (Rapporteur), J. L. Murray, D. A. O.
R. Grass, Registrar, has given a judgment on 11 November
                                                                    Edward, J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón,
1997, in which it has ruled:
                                                                    Judges; F. G. Jacobs, Advocate-General; H. A. Rühl,
                                                                    Principal Administrator, for the Registrar, has given a
                                                                    judgment on 11 November 1997, in which it has ruled:
1. A natural or legal person may challenge before a
    national court the validity of provisions in directives,
    such as Article 1 (22) of Council Directive 91/680/             A national rule which, in a case where there are fewer
    EEC of 16 December 1991 supplementing the                       women than men at the level of the relevant post in a
    common system of value added tax and amending                   sector of the public service and both female and male
    Directive 77/388/EEC with a view to the abolition of            candidates for the post are equally qualified in terms of
    fiscal frontiers and Article 28 of Council Directive            their suitability, competence and professional performance,
    92/12/EEC of 25 February 1992 on the general                    requires that priority be given to the promotion of female
 ---pagebreak--- 10. 1. 98             EN                  Official Journal of the European Communities                                        C 7/5
candidates unless reasons specific to an individual male             1. declares that, by failing to adopt within the periods
candidate tilt the balance in his favour is not precluded by              prescribed the measures necessary to comply with:
Article 2 (1) and (4) of Council Directive 76/207/EEC of
9 February 1976, on the implementation of the principle
of equal treatment for men and women as regards access                    Ð Council Directive 91/157/EEC of 18 March 1991
to employment, vocational training and promotion, and                         on batteries and accumulators containing certain
working conditions, provided that:                                            dangerous substances, and
Ð in each individual case the rule provides for male                      Ð Commission Directive 93/86/EEC of 4 October
     candidates who are equally as qualified as the female                    1993 adapting to technical progress Directive 91/
     candidates a guarantee that the candidatures will be                     157/EEC,
     the subject of an objective assessment which will take
     account of all criteria specific to the candidates and
     will override the priority accorded to female                        the Federal Republic of Germany has failed to comply
     candidates where one or more of those criteria tilts the             with its obligations under Article 11 (1) of Directive
     balance in favour of the male candidate, and                         91/157/EEC and Article 7 (1) of Directive 93/86/EEC;
Ð such criteria are not such as to discriminate against              2. orders the Federal Republic of Germany to pay the
     the female candidates.                                               costs.
(1) OJ C 46, 17. 2. 1996.
                                                                     (1) OJ C 269, 14. 9. 1996.
               JUDGMENT OF THE COURT
                        (Fifth Chamber)                                             JUDGMENT OF THE COURT
                                                                                (First Chamber)
                     of 13 November 1997
in    Case C-236/96: Commission of the European                                          of 20 November 1997
      Communities v. Federal Republic of Germany (1)                 in Case C-338/95 (reference for a preliminary ruling from
(Failure to fulfil obligations Ð Failure to transpose                the Bundesfinanzhof): Wiener SI GmbH v. Hauptzollamt
           Directives 91/157/EEC and 93/86/EEC)                                               Emmerich (1)
                          (98/C 7/09)                                (Common Customs Tariff Ð Tariff heading Ð Nightdress)
                                                                                (98/C 7/10)
               (Language of the case: German)
                                                                                (Language of the case: German)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                       (Provisional translation; the definitive translation will be
In Case C-236/96: Commission of the European                                   published in the European Court Reports)
Communities (Agent: Götz zur Hausen) v. Federal
Republic of Germany (Agents: Ernst Röder and Bernd
Kloke) Ð application for a declaration that, by failing to           In Case C-338/95: reference to the Court under Article 177
adopt within the periods prescribed the measures                     of the EC Treaty from the Bundesfinanzhof (Germany) for
necessary to comply with Council Directive 91/157/EEC                a preliminary ruling in the proceedings pending before
of 18 March 1991 on batteries and accumulators                       that court between Wiener SI GmbH and Hauptzollamt
containing certain dangerous substances (OJ L 78, 26. 3.             Emmerich Ð on the interpretation of subheading 60.04 B
1991, p. 38), and Commission Directive 93/86/EEC of                  IV b 2 bb of the Common Customs Tariff, in the version
4 October 1993 adapting to technical progress Directive              resulting from Council Regulation (EEC) No 3400/84 of
91/157/EEC (OJ L 264, 23. 10. 1993, p. 51), the Federal              27 November 1984 amending Regulation (EEC) No 950/
Republic of Germany has failed to comply with its                    68 on the Common Customs Tariff (OJ L 320, 10. 12.
obligations under the Treaty Ð the Court (Fifth                      1984, p. 1) Ð the Court (First Chamber), composed of:
Chamber), composed of: C. Gulmann (Rapporteur),                      M. Wathelet (Rapporteur), President of the Chamber, P.
President of the Chamber, J. C. Moitinho de Almeida,                 Jann and L. Sevón, Judges; F. G. Jacobs, Advocate-
D. A. O. Edward, J.-P. Puissochet and P. Jann, Judges;               General; L. Hewlett, Administrator, for the Registrar, has
F. G. Jacobs, Advocate-General; R. Grass, Registrar, has             given a judgment on 20 November 1997, the operative
given a judgment on 13 November 1997, in which it:                   part of which is as follows:


title: Case T-364/02: Action brought on 5 December 2002 by Muswellbrook Limited against the Office for Harmonisation in the Internal Market (OHIM)

text:
C 44/34               EN                          Official Journal of the European Union                                         22.2.2003
Pleas in law and main arguments                                                 First Board of Appeal of the OHIM of 30 September
                                                                                2002 in case No R 19/2000-1, inasmuch as it declares
Applicant for Com-            NIKE INTERNATIONAL Ltd.                           that the opponent has failed to prove genuine use in the
munity trade mark:                                                              Community of the Spanish trade mark No 88222 to
                                                                                distinguish ready-to-wear and other items of clothing in
Community trade mark          The word mark ‘NIKE’ — appli-                     Class 25 during the five years preceding the publication
sought by the appli-          cation No 278028 for goods in                     of the application for a Community trade mark;
cation:                       Class 25 ‘clothing, footwear,
                              headgear’.                                  —     annul that decision in its entirety;
Proprietor of mark or         The applicant.                              —     agree to vary that decision so as to declare that an
sign right asserted in the                                                      assessment of and a ruling on the merits of the opposition
opposition proceedings:                                                         to registration of Community trade mark No 278093 is
                                                                                appropriate, to which end the Court’s judgment should
Mark or sign right assert-    The Spanish mixed trade mark
                                                                                declare that Community trade mark No 278093 is
ed in opposition:             No 88222, composed of the word                    refused, or, in the alternative, refer the case back to the
                              ‘NIKE’ together with the image of                 First Board of Appeal of the OHIM;
                              the Greek goddess of victory of
                              Samothrace, for products in
                              Class 25.                                   —     order the defendant and, where appropriate, the inter-
                                                                                vener to pay all the costs of the proceedings and those
Decision of Opposition        Refusal of application.                           incurred at the administrative stages of the opposition
Division:                                                                       and appeal proceedings.
Decision of Board of          Annulment of the decision of the
Appeal:                       Opposition Division and rejection
                              of the opposition.                          Pleas in law and main arguments
Pleas in law:                 Improper or erroneous appli-
                              cation of Article 15(2)(a) and              The applicant seeking the Community trade mark, the pro-
                              Article 43(2) and (3) and of other
                                                                          prietor of the mark cited in opposition, the tenor of the
                              relevant provisions of Regulation
                                                                          decisions of the Opposition Division and the Board of Appeal
                              No 40/94 on the Community
                                                                          and the pleas in law and main arguments are the same as those
                              trade mark.
                                                                          in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).
                                                                          The Community trade mark in respect of which registration is
                                                                          sought is the word mark ‘NIKE TOWN’ — application
                                                                          No 278093 in respect of goods in Class 25 ‘clothing, footwear
                                                                          and headgear’.
Action brought on 5 December 2002 by Muswellbrook
Limited against the Office for Harmonisation in the
                    Internal Market (OHIM)
                        (Case T-363/02)
                         (2003/C 44/65)
                                                                          Action brought on 5 December 2002 by Muswellbrook
                  (Language of the case: Spanish)                         Limited against the Office for Harmonisation in the
                                                                                Internal Market (OHIM)
An action against the Office for Harmonisation in the Internal                                     (Case T-364/02)
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 5 December 2002 by
Muswellbrook Limited, established in Dublin (Ireland), rep-                                         (2003/C 44/66)
resented by J. Casulá Oliver, lawyer.
                                                                                (Language of the case: Spanish)
The applicant claims that the Court should:
—     declare incompatible with Regulation (EC) No 40/94 on
      the Community trade mark, in particular Article 15(2)(a)            An action against the Office for Harmonisation in the Internal
      and/or Article 42(2) and (3) thereof, the decision of the           Market (OHIM) was brought before the Court of First Instance
 ---pagebreak--- 22.2.2003              EN                         Official Journal of the European Union                                           C 44/35
of the European Communities on 5 December 2002 by                         Action brought on 5 December 2002 by Muswellbrook
Muswellbrook Limited, established in Dublin (Ireland), rep-               Limited against the Office for Harmonisation in the
resented by J. Casulá Oliver, lawyer.                                                          Internal Market (OHIM)
                                                                                (Case T-365/02)
The applicant claims that the Court should:
                                                                                (2003/C 44/67)
—     declare incompatible with Regulation (EC) No 40/94 on
      the Community trade mark, in particular Article 15(2)(a)                               (Language of the case: Spanish)
      and/or Article 42(2) and (3) thereof, the decision of the
      First Board of Appeal of the OHIM of 30 September
      2002 in case No R 73/2000-1, inasmuch as it declares
      that the opponent has failed to prove genuine use in the
      Community of the Spanish trade mark No 88222 to                     An action against the Office for Harmonisation in the Internal
      distinguish ready-to-wear and other items of clothing in            Market (OHIM) was brought before the Court of First Instance
      Class 25 during the five years preceding the publication            of the European Communities on 5 December 2002 by
      of the application for a Community trade mark;                      Muswellbrook Limited, established in Dublin (Ireland), rep-
                                                                          resented by J. Casulá Oliver, lawyer.
—     annul that decision in its entirety;
                                                                          The applicant claims that the Court should:
—     agree to vary that decision so as to declare that an
      assessment of and a ruling on the merits of the opposition          —     declare incompatible with Regulation (EC) No 40/94 on
      to registration of Community trade mark No 277889 is                      the Community trade mark, in particular Article 15(2)(a)
      appropriate, to which end the Court’s judgment should                     and/or Article 42(2) and (3) thereof, the decision of the
      declare that Community trade mark No 277889 is                            First Board of Appeal of the OHIM of 30 September
      refused, or, in the alternative, refer the case back to the               2002 in case No R 833/1999-1, inasmuch as it declares
      First Board of Appeal of the OHIM;                                        that the opponent has failed to prove genuine use in the
                                                                                Community of the Spanish trade mark No 88222 to
                                                                                distinguish ready-to-wear and other items of clothing in
—     order the defendant and, where appropriate, the inter-                    Class 25 during the five years preceding the publication
      vener to pay all the costs of the proceedings and those                   of the application for a Community trade mark;
      incurred at the administrative stages of the opposition
      and appeal proceedings.
                                                                          —     annul that decision in its entirety;
                                                                          —     agree to vary that decision so as to declare that an
                                                                                assessment of and a ruling on the merits of the opposition
                                                                                to registration of Community trade mark No 277731 is
                                                                                appropriate, to which end the Court’s judgment should
Pleas in law and main arguments                                                 declare that Community trade mark No 277731 is
                                                                                refused, or, in the alternative, refer the case back to the
                                                                                First Board of Appeal of the OHIM;
The applicant seeking the Community trade mark, the pro-                  —     order the defendant and, where appropriate, the inter-
prietor of the mark cited in opposition, the tenor of the                       vener to pay all the costs of the proceedings and those
decisions of the Opposition Division and the Board of Appeal                    incurred at the administrative stages of the opposition
and the pleas in law and main arguments are the same as those                   and appeal proceedings.
in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).
The Community trade mark in respect of which registration is              Pleas in law and main arguments
sought is the mixed mark ‘NIKE’ with ‘swoosh’ graphic —
application No 277889 in respect of goods in Class 25
‘clothing, footwear and headgear’.                                        The applicant seeking the Community trade mark, the pro-
                                                                          prietor of the mark cited in opposition, the tenor of the
                                                                          decisions of the Opposition Division and the Board of Appeal
                                                                          and the pleas in law and main arguments are the same as those
                                                                          in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).


title: Case T-520/10 R: Order of the President of the General Court of 17 February 2011 — Comunidad Autónoma de Galicia v Commission (Interim measures — State aid — Compensation for additional production costs of certain electricity power plants arising from a public service obligation to produce certain volumes of electricity from indigenous coal implemented by a ‘preferential dispatch mechanism’ in their favour — Decision not to raise objections — Application for suspension of operation — Prima facie case — No urgency — Balance of interests)

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/14

         Order of the President of the General Court of 17 February 2011 — Comunidad Autónoma de Galicia v Commission
   (Case T-520/10 R)
   (Interim measures - State aid - Compensation for additional production costs of certain electricity power plants arising from a public service obligation to produce certain volumes of electricity from indigenous coal implemented by a ‘preferential dispatch mechanism’ in their favour - Decision not to raise objections - Application for suspension of operation - Prima facie case - No urgency - Balance of interests)
   2011/C 113/28
   Language of the case: Spanish

      Parties

      Applicant: Comunidad Autónoma de Galicia (Santiago de Compostela, Spain) (represented by: S. Martínez Lage, H. Brokelmann and A. Rincón García Loygorri, lawyers)

      Defendant: European Commission (represented by: E. Gippini Fournier and C. Urraca Caviedes, Agents)

      Re:

   Application for interim measures seeking, in essence, an order that the operation of Commission Decision C(2010) 4499 of 29 September 2010 concerning State aid N 178/2010 notified by the Kingdom of Spain in the form of a public service compensation linked to a preferential dispatch mechanism for indigenous coal power plants be suspended

      Operative part of the order

               1.

               Hidroeléctrica del Cantábrico, SA, and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission.

               2.

               Copies of all the procedural documents shall be served by the Registrar on the parties referred to in paragraph 1 above.

               3.

               The application for interim measures is dismissed.

               4.

               The costs are reserved.


title: Judgment of the Court (Fifth Chamber) of 22 May 2003 in Case C-355/00 (Reference for a preliminary ruling from the Dioikitiko Protodikeio Thessalonikis): Freskot AE v Elliniko Dimosio (Common agricultural policy — Free movement of goods — Freedom to provide services — State aid — Special contribution in favour of an agricultural insurance organisation)

text:
C 171/2                EN                           Official Journal of the European Union                                             19.7.2003
2.  Articles 82 EC and 86(1) EC in principle preclude national              5.    The prohibition on discrimination laid down in Articles 9(2)
    legislation such as that at issue in the main proceedings, under              and 11(2) of Directive 97/13/EC of the European Parliament
    which additional frequencies in the frequency band reserved for               and of the Council of 10 April 1997 on a common framework
    the DCS 1800 standard may be allocated to a public                            for general authorisations and individual licences in the field of
    undertaking in a dominant position which already holds a                      telecommunications services does not preclude national legis-
    licence to provide digital mobile telecommunications services                 lation such as that at issue in the main proceedings, under
    according to the GSM 900 standard without the imposition of                   which additional frequencies in the frequency band reserved for
    a separate fee, whereas a new entrant to the market at issue has              the DCS 1800 standard may be allocated to existing holders
    had to pay a fee to obtain a licence to provide digital mobile                of a licence to provide digital mobile telecommunications services
    telecommunications services according to the DCS 1800                         according to the GSM 900 standard without the imposition of
    standard. However, those provisions do not preclude such                      a separate fee, whereas the operator which was granted a licence
    national legislation if the fee imposed on the public undertaking             to provide digital mobile telecommunications services according
    in a dominant position for its GSM 900 licence, including the                 to the DCS 1800 standard has had to pay a fee, if the fee
    subsequent allocation without additional payment of additional                charged to existing operators for their GSM 900 licence,
    frequencies in the frequency band reserved for the DCS 1800                   including the subsequent allocation without additional payment
    standard, appears to be equivalent in economic terms to the fee               of additional frequencies in the frequency band reserved for the
    imposed on the competitor which was granted the DCS 1800                      DCS 1800 standard, appears to be equivalent in economic
    licence.                                                                      terms to the fee imposed on the operator which holds the
                                                                                DCS 1800 licence.
                                                                            (1 ) OJ C 47 of 19.2.2000.
3.  Article 2(3) and (4) of Commission Directive 96/2/EC of
    16 January 1996 amending Directive 90/388/EEC with
    regard to mobile and personal communications in principle
    precludes national legislation such as that at issue in the main
                                                                                JUDGMENT OF THE COURT
    proceedings, under which additional frequencies in the frequency
    band reserved for the DCS 1800 standard may be allocated to
    a public undertaking in a dominant position which already                                           (Fifth Chamber)
    holds a licence to provide digital mobile telecommunications
    services according to the GSM 900 standard without the                                              of 22 May 2003
    imposition of a separate fee, whereas a new entrant to the
    market at issue has had to pay a fee to obtain a licence to             in Case C-355/00 (Reference for a preliminary ruling from
    provide digital mobile telecommunications services according to         the Dioikitiko Protodikeio Thessalonikis): Freskot AE v
    the DCS 1800 standard. However, that provision does not                                          Elliniko Dimosio ( 1)
    preclude such national legislation if the fee imposed on the
    public undertaking in a dominant position for its GSM 900
                                                                            (Common agricultural policy — Free movement of goods
    licence, including the subsequent allocation without additional
                                                                            — Freedom to provide services — State aid — Special
    payment of additional frequencies in the frequency band reserved
                                                                            contribution in favour of an agricultural insurance organis-
    for the DCS 1800 standard, appears to be equivalent in
                                                                                ation)
    economic terms to the fee imposed on the competitor which was
    granted the DCS 1800 licence.
                                                                                (2003/C 171/02)
                                                                                (Language of the case: Greek)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
4.  Article 2(3) and (4) of Directive 96/2 does not preclude
    national legislation such as that at issue in the main proceed-
    ings, under which a limited number of additional frequencies in
    the frequency band reserved for the DCS 1800 standard may               In Case C-355/00: Reference to the Court under Article 234
    be allocated to existing holders of a licence to provide digital        EC by the Diikitiko Protodikio Thessalonikis (Greece) for a
    mobile telecommunications services according to the GSM 900             preliminary ruling in the proceedings pending before that
    standard, including a public undertaking in a dominant                  court between Freskot AE and Elliniko Dimosio, on the
    position, after at least three years have elapsed since the             interpretation of Articles 30 and 38 of the EC Treaty (now,
    1997 decision to grant the licence to provide digital mobile            after amendment, Articles 28 EC and 32 EC), Article 39 of the
    telecommunications services according to the DCS 1800                   EC Treaty (now Article 33 EC), Articles 40 and 59 of the EC
    standard. Nor does that provision preclude national legislation         Treaty (now, after amendment, Articles 34 EC and 49 EC),
    such as that at issue in the main proceedings, which allows such        Article 60 of the EC Treaty (now Article 50 EC) and Article 92
    an allocation before that period has elapsed if it is established       of the EC Treaty (now, after amendment, Article 87 EC), and
    that the user capacity of those operators has been exhausted            First Council Directive 73/239/EEC of 24 July 1973 on the
    despite the use of all commercially viable technical possibilities.     coordination of laws, regulations and administrative provisions
 ---pagebreak--- 19.7.2003                EN                          Official Journal of the European Union                                                  C 171/3
relating to the taking-up and pursuit of the business of direct                    those Treaty provisions. It is for the referring court to determine
insurance other than life assurance (OJ 1973 L 228, p. 3), as                      whether that scheme is in fact justified by social policy objectives
amended by Second Council Directive 88/357/EEC of 22 June                          and to examine, in particular, whether the cover provided by
1988 (OJ 1988 L 172, p. 1), the Court (Fifth Chamber),                             that compulsory insurance scheme is proportionate to those
composed of: M. Wathelet, President of the Chamber,                                objectives.
C. W. A. Timmermans (Rapporteur), D. A. O. Edward, P. Jann
and S. von Bahr, Judges; C. Stix-Hackl, Advocate General;                    4.    The term ‘undertaking’ within the meaning of Article 92 of the
H. A. Rühl, Principal Administrator, for the Registrar, has                        EC Treaty (now, after amendment, Article 87 EC) does not
given a judgment on 22 May 2003, in which it has ruled:                            cover a body such as the Organismos Ellenikon Georgikon
                                                                                Asfaliseon (ELGA) in respect of its activities under the
                                                                                compulsory insurance scheme against natural risks.
1.    The EC Treaty provisions on the common agricultural policy             (1 ) OJ C 335 of 25.11.2000.
      and Regulation (EEC) No 2777/75 of the Council of 29 Octo-
      ber 1975 on the common organisation of the market in
      poultrymeat, as amended by Council Regulation (EEC)
      No 1235/89 of 3 May 1989, do not preclude a quasi-fiscal
      charge established by a Member State, such as a special
      insurance contribution levied on sales and purchases of domestic
      agricultural products which fall within the common organis-
      ation for the market in poultrymeat, the revenue from which is                           JUDGMENT OF THE COURT
      used to fund a public body responsible for the prevention of,
      and compensation for, damage caused to agricultural holdings
                                                                                of 20 May 2003
      by natural risks in that State.
                                                                             in Joined Cases C-465/00, C-138/01 and C-139/01 (Refer-
      Those Treaty provisions and Regulation No 2777/75, as                  ence for a preliminary ruling from the Verfassungsgericht-
      amended by Regulation No 1235/89, do preclude such a                   shof and Oberster Gerichtshof): Rechnungshof (C-465/00)
      quasi-fiscal charge however where it is such as to undermine the       v Österreichischer Rundfunk and Others and between
      aims and objects of the common organisation of the market in           Christa Neukomm (C-138/01), Joseph Lauermann (C-139/
      question and, in particular, where it does in fact restrict intra-                 01) and Österreichischer Rundfunk (1)
      Community trade.
                                                                             (Protection of individuals with regard to the processing of
      It is for the national court to decide whether the contribution        personal data — Directive 95/46/EC — Protection of private
      does in fact have that effect.                                         life — Disclosure of data on the income of employees of
                                                                                bodies subject to control by the Rechnungshof)
2.    Community law on the free movement of goods, in particular                                        (2003/C 171/03)
      Articles 9 and 12 of the EC Treaty (now, after amendment,
      Articles 23 EC and 25 EC), Article 16 of the EC Treaty                                     (Language of the case: German)
      (repealed by the Treaty of Amsterdam) and Article 95 of the
      EC Treaty (now, after amendment, Article 90 EC), does not
      preclude a contribution such as that referred to in paragraph 1        (Provisional translation; the definitive translation will be published
      of the operative part of the present judgment.                                             in the European Court Reports)
3.    Benefits such as those provided by the Organismos Ellenikon            In Joined Cases C-465/00, C-138/01 and C-139/01: References
      Georgikon Asfaliseon (ELGA) under the compulsory insurance             to the Court under Article 234 EC by the Verfassungsgerichts-
      scheme against natural risks do not fall within the scope of           hof (C-465/00) and the Oberster Gerichtshof (C-138/01 and
      either Article 59 of the EC Treaty (now, after amendment,              C-139/01) (Austria) for preliminary rulings in the proceedings
      Article 49 EC) and Article 60 of the EC Treaty (now Article 50         pending before those courts between Rechnungshof (C-465/
      EC) or First Council Directive 73/239/EEC of 24 July 1973              00) and Österreichischer Rundfunk, Wirtschaftskammer Stei-
      on the coordination of laws, regulations and administrative            ermark, Marktgemeinde Kaltenleutgeben, Land Niederösterre-
      provisions relating to the taking-up and pursuit of the business       ich, Österreichische Nationalbank, Stadt Wiener Neustadt,
      of direct insurance other than life assurance, as amended by           Austrian Airlines, Österreichische Luftverkehrs-AG, and
      Second Council Directive 88/357/EEC of 22 June 1988.                   between Christa Neukomm (C-138/01), Joseph Lauermann
                                                                             (C-139/01) and Österreichischer Rundfunk, on the interpret-
                                                                             ation of Directive 95/46/EC of the European Parliament and
      Such a compulsory insurance scheme may, however, constitute            of the Council of 24 October 1995 on the protection of
      a restriction on the freedom of insurance companies established        individuals with regard to the processing of personal data and
      in other Member States, who wish to offer services covering            on the free movement of such data (OJ 1995 L 281, p. 31),
      such risks in Greece, to provide services, within the meaning of       the Court, composed of: G. C. Rodríguez Iglesias, President,


title: Case C-103/11 P: Appeal brought on 2 March 2011 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/13

         Appeal brought on 2 March 2011 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission

   (Case C-103/11 P)
   2011/C 145/18
   Language of the case: French

      Parties

      Appellant: European Commission (represented by: T. Van Rijn, E. Montaguti and J. Samnadda, Agents, assisted by A. Berenboom and M. Isgour, laywers)

      Other party to the proceedings: Systran SA and Systran Luxembourg SA

      Form of order sought

               —

               Declare the appeal admissible and well-founded;

               —

               Set aside the judgment of 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission to the extent that it allows in part the action for damages brought against the Commission and, consequently, by finally ruling on the case dismiss the action on the basis that it is inadmissible or unfounded;

               —

               Order Systran SA and Systran Luxembourg SA to bear all their own costs and those of the Commission;

               —

               In the alternative, set aside the judgment of 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission and refer the case back to the General Court.

      Pleas in law and main arguments

   The Commission relies on eight pleas in law in support of its appeal. It claims that the judgment is vitiated by a series of errors such as to justify its being set aside. The pleas raised by it relate to the jurisdiction of the General Court to hear the case, its compliance with procedures, and its fulfilment of the three conditions which, according to settled case-law, are cumulatively necessary in order to give rise to the Community’s non-contractual liability: the existence of fault, of damage and of a causal link between the fault and the damage.
   By its first plea, the Commission claims that the General Court erred in law by deciding that the dispute was of a non-contractual nature and, accordingly, by declaring that it had jurisdiction to hear the case.
   By its second plea, the applicant claims that the General Court infringed the rights of the defence enjoyed by the Commission and disregarded the rules on the taking of evidence.
   By its third plea, it maintains that the rules on copyright were incorrectly applied with regard to the ownership of copyright.
   By its fourth plea, the Commission maintains that the General Court made a manifest legal error with regard to its assessment of the existence, first, of an infringement of copyright and, second, of an infringement of Systran’s know-how.
   Its fifth plea alleges that, by considering that the Commission’s supposed fault constitutes a sufficiently serious breach, the General Court made a manifest error of assessment which led to an infringement of the principles governing the European Union’s non-contractual liability.
   By its sixth plea, the applicant submits, first, that the General Court erred in law in its interpretation of the exception laid down in Article 5 of Directive 91/250/EEC and, second, that it failed to fulfil its obligation to state reasons with regard to Article 6 of that directive.
   By its seventh plea, the Commission alleges, first, that the General Court made clearly incorrect findings of fact, misinterpreted evidence, and made manifest errors of assessment and, second, that it failed to fulfil its obligation to state reasons with regard to the existence of a causal link.
   Finally, the eighth plea alleges that, by awarding Systran damages with interest amounting to EUR 12 001 000, the General Court, first, is guilty of making clearly incorrect findings of fact, misinterpreting evidence, and making manifest errors of assessment and, second, the General Court fails to fulfil its obligation to state reasons concerning the calculation of the damage.


title: Case T-169/07: Action brought on 16 May 2007 — Longevity Health Products v OHIM — Celltech Pharma (Cellutrim)

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/40

         Action brought on 16 May 2007 — Longevity Health Products v OHIM — Celltech Pharma (Cellutrim)
   (Case T-169/07)
   (2007/C 155/72)
   Language in which the application was lodged: German
   Parties

      Applicant: Longevity Health Products Inc. (Nassau, Bahamas) (represented by: J.E. Korab, Rechtsanwalt)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Celltech Pharma GmbH & Co. KG
   Form of order sought

               —

               declaration that the application is admissible;

               —

               annulment of the decision of the First Board of Appeal of 7 March 2007 and dismissal of the application by Celltech Pharma GmbH & Co. KG that Community trade mark registration No 3979036 be declared invalid; and

               —

               order that the Office for Harmonisation in the Internal Market pay the costs.

         Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘Cellutrim’ for goods and services in classes 3, 5 and 35 (Community trade mark No 3979036).

      Proprietor of the Community trade mark: The applicant.

      Applicant for the declaration of invalidity: Celltech Pharma GmbH & Co. KG.

      Trade mark right of applicant for the declaration: The word mark ‘Cellidrin’ for goods in class 5.

      Decision of the Cancellation Division: Cancellation of the Community trade mark concerned in relation to goods in class 5.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: Faulty reasoning of the Board of Appeal, since there is no likelihood of confusion between the conflicting marks.


title: Cases C-390/00 and C-391/00: Reference for a preliminary ruling by the Tribunale di Bari, Sezione Distaccata di Rutigliano, by order of that court of 19 September 2000 in the cases of Giovanni Colapietro against Ispettorato Generale Repressione Frodi and Giovanni Colapietro against Ministero per le Politiche Agricole

text:
C 4/2                  EN                    Official Journal of the European Communities                                           6.1.2001
Action brought on 20 October 2000 by the Commission                     Reference for a preliminary ruling by the Tribunale di
of the European Communities against the Federal Repub-                  Bari, Sezione Distaccata di Rutigliano, by order of that
                          lic of Germany                                court of 19 September 2000 in the cases of Giovanni
                                                                        Colapietro against Ispettorato Generale Repressione Frodi
                                                                        and Giovanni Colapietro against Ministero per le Politiche
                         (Case C-389/00)                                                               Agricole
                           (2001/C 4/02)
                                                                                (Cases C-390/00 and C-391/00)
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-                                        (2001/C 4/03)
ties on 20 October 2000 by the Commission of the European
Communities, represented by Josef Christian Schieferer, of its
Legal Service, with an address for service in Luxembourg at             Reference has been made to the Court of Justice of the
the office of Carlos Gómez de la Cruz, of the same service,            European Communities by order of the Tribunale di Bari,
Wagner Centre, Kirchberg.                                               Sezione Distaccata di Rutigliano (Bari District Court, Rutigliano
                                                                        Division) of 19 September 2000, received at the Court Registry
                                                                        on 24 October 2000, for a preliminary ruling in the cases of
The Commission claims that the Court should:                            Giovanni Colapietro against Ispettorato Generale Repressione
                                                                        Frodi and Giovanni Colapietro against Ministero per le Poli-
                                                                        tiche Agricole on the following questions:
1.    Declare that, by adopting the AbfalIverbringungsgesetz
      (Law on the Transfer of Waste) of 30 September 1994,
      establishing a solidarity fund for the return of waste, the       (1) Is Law No 460 of 1987, Article 4 of which provides for
      Federal Republic of Germany has infringed its obligations               penalties in respect of provisions of Community law laid
      under Articles 23 and 25 EC;                                            down by regulations which have now been repealed, (1)
                                                                              applicable for the purposes of enforcing rules laid down
                                                                              in new regulations?
2.    Order the Federal Republic of Germany to pay the costs.
                                                                        (2) Is the administrative penalty at issue disproportionate in
                                                                              effect to the offence, contrary to the principle of fair
Pleas in law and main arguments                                               punishment?
The Commission considers that the obligation on exporters of            (1) With reference, in particular, to Council Regulation No 822/87 of
waste under the German Abfallverbringungsgesetz to pay                      16 March 1987 (OJ L 84 of 27.3.1987, p. 1).
membership contributions to the solidarity fund is incompat-
ible with Community law in so far as the solidarity fund
assumes the costs of reimporting waste (including its disposal
and recycling) in the cases referred to in Articles 25 and 26 of
Council Regulation 259/93, (1) which are imposed on the
exporting Member State in the event of it being impracticable
to charge the notifier (Article 33(2) of Regulation 259/93). To
that extent, the contribution constitutes a burden imposed
unilaterally on domestic goods on account of their crossing
the frontier. Contrary to the defendant’s view, the relevant part
of the contribution cannot be regarded as appropriate payment           Action brought on 13 November 2000 by the Com-
for a service actually and individually provided by the adminis-        mission of the European Communities against the French
tration to an economic operator. The financing of the second-                                         Republic
ary State liability expressly provided for in Article 33(2) of
Regulation No 259/93 cannot be described as a ‘particular or
individual advantage’.                                                                            (Case C-418/00)
                                                                                (2001/C 4/04)
(1) Council Regulation (EEC) No 259/93 of 1 February 1993 on the
    supervision and control of shipments of waste within, into and
    out of the European Community (OJ 1993 L 30, p. 1), amended         An action against the French Republic was brought before the
    by Commission Regulation (EC) No 2408/98 of 6 November              Court of Justice on 13 November 2000 by the Commission of
    1998 (OJ 1998 L 298, p. 19).                                        the European Communities, represented by T. Van Rijn, Legal
                                                                        Adviser, and Bernard Mongin, of its Legal Service, acting as
                                                                        Agents, with an address for service in Luxembourg at the office
                                                                        of C. Gómez de la Cruz, also of its Legal Service, Wagner
                                                                        Centre, Kirchberg.


title: Case T-352/08 R: Order of the President of the Court of First Instance of 23 January 2009 — Pannon Hőerőmű v Commission (Interim measures — State aid — Commission decision declaring State aid granted by Hungary in favour of certain electricity producers by way of electricity purchasing agreements incompatible with the common market — Application for stay of execution — Lack of urgency — Balancing of interests)

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/25

         Order of the President of the Court of First Instance of 23 January 2009 — Pannon Hőerőmű v Commission
   (Case T-352/08 R)
   (Interim measures - State aid - Commission decision declaring State aid granted by Hungary in favour of certain electricity producers by way of electricity purchasing agreements incompatible with the common market - Application for stay of execution - Lack of urgency - Balancing of interests)
   (2009/C 82/44)
   Language of the case: Hungarian
   Parties

      Applicant: Pannon Hőerőmű Energiatermelő, Kereskedelmi és Szolgáltató Zrt. (Pannon Hőerőmű Zrt.) (Pécs, Hungary) (represented by: M. Kohlrusz, P. Simon and G. Ormai, lawyers)

      Defendant: Commission of the European Communities (represented by: C. Giolito and K. Talabér-Ritz, acting as Agents)
   Re:
   Application for stay of execution of Article 2 of Commission Decision C(2008) 2223 final of 4 June 2008 on State aid granted by the Republic of Hungary by way of electricity purchasing agreements.
   Operative part of the order

               1.

               The application for interim measures is rejected.

               2.

               Costs are reserved.


title: Case T-244/10: Action brought on 26 May 2010 — Tsakiris-Mallas v OHIM — Seven (7 Seven Fashion Shoes)

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/49

         Action brought on 26 May 2010 — Tsakiris-Mallas v OHIM — Seven (7 Seven Fashion Shoes)
   (Case T-244/10)
   ()
   2010/C 221/79
   Language in which the application was lodged: Greek

      Parties

      Applicant: Tsakiris-Mallas Α.Ε. (Argiroupoli Attiki, Greece) (represented by: Ν. Simantiras, 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: Seven S.p.A. (Turin, Italy)

      Form of order sought from the General Court

               —

               annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)of 22 March 2010 in Case R 1045/2009-2

               —

               order that the application No 544581 for registration as a community trade mark of the figurative mark ‘7 Seven Fashion Shoes’ for goods in Classes 18 and 25 be accepted, and

               —

               order the parties opposing these proceedings to pay the costs, including the costs relating to the opposition and appeal proceedings before OHIM

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: the figurative mark ‘7 Seven Fashion Shoes’ for goods in Classes 18 and 25 (application for registration No 5445481)

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

      Mark or sign cited in opposition: Italian figurative mark ‘7Seven’, registration Νο 769 296, for goods in Classes 14, 16 and 18; and Italian figurative mark registration Νο 928116 for goods in Classes 16 and 18

      Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and rejection of the application for registration for goods in Class 18

      Pleas in law: Infringement of Article 8(1)(a) and (b) of Council Regulation (EC) No 207/2009, since the Board of Appeal erred in finding that there is a likelihood of confusion between the marks at issue; infringement of Article 65(2), read with Article 8(5) of Council Regulation (EC) No 207/2009; infringement of Article 65(2) read in conjunction with Article 8(5) of Council Regulation (EC) No 207/2009 since the Board of Appeal entirely failed to examine the question to what extent Article 8(5) of the regulation did or did not apply.


title: Reference for a preliminary ruling from the Arbetsdomstol by order of that court of 2 July 1998 in the case brought by Jämställdhetsombudsmannen Lena Svenaeus against Örebro Läns Landsting (Case C-236/98)

text:
5.9.98               EN                 Official Journal of the European Communities                                C 278/19
Reference for a preliminary ruling from the Arbetsdomstol          5. In answering question 4, is significance to be attached
by order of that court of 2 July 1998 in the case brought              to the fact that the midwives, but not the clinical
by Jämställdhetsombudsmannen Lena Svenaeus against                     technician, perform shift work which, under the terms
                   Örebro Läns Landsting                               of the collective agreement, affords entitlement to
                      (Case C-236/98)                                  reduced working hours?
                       (98/C 278/32)                               (1) OJ L 45, 19.2.1975, p. 19.
Reference has been made to the Court of Justice of the
European Communities by an order of the Arbetsdomstol
of 2 July 1998, which was received at the Court Registry
on 6 July 1998, for a preliminary ruling in the case
brought by Jämställdhetsombudsmannen Lena Svenaeus                 Appeal brought on 6 July 1998 by Dorsch Consult
against Örebro Läns Landsting on the following questions:          Ingenieurgesellschaft mbH against the judgment delivered
                                                                   on 28 April 1998 by the Second Chamber of the Court of
                                                                   First Instance of the European Communities in Case
1. Under Article 119 of the Treaty of Rome and Council             T-184/95 Dorsch Consult Ingenieurgesellschaft mbH and
    Directive 75/117/EEC (1) on the approximation of the           Council of the European Union and Commission of the
    laws of the Member States relating to the application                             European Communities
    of the principle of equal pay for men and women,                                     (Case C-237/98 P)
    must compensation for unsocial working hours be
    included in the basis for a pay comparison in relation                                  (98/C 278/33)
    to a pay discrimination claim? What difference does it
    make that the compensation for unsocial working
    hours varies from month to month depending on the              An appeal against the judgment delivered on 28 April
    working schedule?                                              1998 by the Second Chamber of the Court of First
                                                                   Instance in Case T-184/95 between Dorsch Consult
                                                                   Ingenieurgesellschaft mbH and Council of the European
2. In answering question 1 should significance be                  Union and Commission of the European Communities was
    attached to the fact that as part of their tasks the           brought before the Court of Justice of the European
    midwives must regularly work hours which entitle               Communities on 6 July 1998 by Dorsch Consult
    them to compensation for working during unsocial               Ingenieurgesellschaft mbH, represented by Professor Dr
    working hours, whereas the clinical technician does            Karl M. Meessen, with an address for service in
    not regularly perform work during times which afford           Luxembourg at the Chambers of Patrick Kinsch, 100
    entitlement to such compensation?                              Boulevard de la PeÂtrusse, L-2320 Luxembourg.
3. In determining the question whether compensation                The appellant claims that the Court should:
    for unsocial working hours is to be included in
    the basis for a pay comparison in relation to a pay
    discrimination claim, must significance be attached to         Ð set aside the judgment of the Court of First Instance of
    the fact that, under national law, such compensation is            22 April 1998 in Case T-184/95 (1),
    included in basic pay for the purpose of determining
    pensions, sickness pay, damages and other pay related          Ð allow the application,
    compensation?
                                                                   Ð in the alternative, refer the case back to the Court of
4. Must a reduction in working time, representing the                  First Instance, and
    difference in standard working time for daytime work
    and work under a continuous three-shift regime, be
    taken into account when a pay comparison is made in            Ð order the defendants and respondents to pay the costs
    relation to a pay discrimination claim, in accordance              of the proceedings.
    with Article 119 of the Treaty of Rome and Council
    Directive 75/117/EEC on the approximation of the
    laws of the Member States relating to the application          Pleas in law and main arguments adduced in support:
    of the principle of equal pay for men and women? If
    the answer is in the affirmative: what significance does       (As to the existence of actual and certain damage)
    it have that under the collective agreement the lower
    standard working time applying under a continuous
    three-shift regime constitutes full-time working? If           Ð The Court's view that the facts found by it should not
    reduced working hours are to be given a particular                 be characterised as actual and certain damage' is
    value, is that value to be regarded as being comprised             wrong in law. If a correct characterisation were made,
    in the fixed monthly pay or as constituting special                the existence of such damage would follow from facts
    compensation which is to be included in the pay                    found in the judgment or in the minutes of the oral
    comparison?                                                        procedure,


title: Case C-291/04: Order of the Court (Fourth Chamber) of  2 May 2006  — (reference for a preliminary ruling from the Tribunal de police de Neufchâteau — Belgium) — Criminal proceedings against Henri Léon Schmitz (First subparagraph of Article 104(3) of the Rules of Procedure — Free movement of persons and services — Workers — Motor vehicle — Provided to worker by employer — Vehicle registered abroad — Employer established in another Member State )

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/12

         Order of the Court (Fourth Chamber) of 2 May 2006 — (reference for a preliminary ruling from the Tribunal de police de Neufchâteau — Belgium) — Criminal proceedings against Henri Léon Schmitz
   (Case C-291/04) (1)

   (First subparagraph of Article 104(3) of the Rules of Procedure - Free movement of persons and services - Workers - Motor vehicle - Provided to worker by employer - Vehicle registered abroad - Employer established in another Member State )
   (2006/C 178/19)
   Language of the case: French
   National court
   Tribunal de police de Neufchâteau
   Criminal proceedings against
   Henri Léon Schmitz
   Re:
   Reference for a preliminary ruling — Tribunal de police de Neufchâteau — Interpretation of Arts. 10, 39, 43 and 49 EC — National measure requiring a motor vehicle to be registered in that Member State if it is to be used by a resident even if it has been provided to that resident by the latter's employer, established in another Member State — Worker bound to his employer by an employment contract and simultaneously performing the functions of shareholder, administrator and person responsible for day-to-day administration, or an equivalent function
   Operative part of the judgment
   Article 43 EC precludes the national legislation of one Member State from obliging, as the legislation in the current criminal proceedings does, a self-employed person residing in that Member State to register a company vehicle provided to him by the company, established in another Member State, that employs him, when the company vehicle is neither actually intended to be used permanently in the first Member State nor is in fact used in that way.

      (1)  OJ C 217, 28.8.2004.


title: Case T-82/11: Order of the General Court of 11 July 2012 — Formica v OHIM — Silicalia (CompacTop)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/39

         Order of the General Court of 11 July 2012 — Formica v OHIM — Silicalia (CompacTop)
   (Case T-82/11) (1)

   2012/C 287/71
   Language of the case: Spanish
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 113, 9.4.2011.


title: Case C-1/00: Action brought on 4 January 2000 by the Commission of the European Communities against the French Republic

text:
4.3.2000              EN                     Official Journal of the European Communities                                         C 63/19
Action brought on 4 January 2000 by the Commission of                   Contrary to what France seems to suggest, the precautionary
 the European Communities against the French Republic                   principle, which guides the actions of the Commission, does
                                                                        not have the effect of imposing on the Commission a rigid
                                                                        obligation to follow a given scientific opinion without having
                          (Case C-1/00)                                 any discretionary power to carry out its own assessment.
                                                                        Article 7 of Commission Decision 97/404/EC (4), by providing
                                                                        from the outset for minority views — a normal corollary of
                         (2000/C 63/35)                                 the independence of the members of the committee concerned
                                                                        (Article 4) — to be taken into account, states that such
                                                                        minority views are always to be included in the opinions of
An action against the French Republic was brought before the            the SSC. The effect of the need for scientific freedom and of
Court of Justice on 4 January 2000 by the Commission of the             the complexity of specific situations must, of necessity, be that
European Communities, represented by Dierk Booss, Principal             minority scientific views may exist on practically any question.
Legal Adviser, and Gérard Berscheid, of its Legal Service, acting       The Commission has followed those precepts.
as Agents, with an address for service in Luxembourg at the
office of Carlos Gómez de la Cruz, of its Legal Service, Wagner
Centre, Kirchberg.
The Commission of the European Communities claims that
the Court should:
                                                                        In addition to infringing the decisions at issue, the imposition
— declare that, by refusing to adopt the measures necessary             of restrictions on the entry of goods from other Member States
    in order to comply with Council Decision 98/256/EC of               constitutes a violation of Article 28 EC. Since, moreover, the
    16 March 1998 concerning emergency measures to protect              veterinary and health requirements applying to products
    against bovine spongiform encephalopathy, amending                  covered by the DBES and their dispatch outside the United
    Decision 94/474/EC and repealing Decision 96/239/EC (1),            Kingdom (like the overwhelming majority of veterinary mat-
    as amended by Commission Decision 98/692/EC Com-                    ters) are subject to a Community-wide harmonisation consti-
    mission Decision amending Decision 98/256/EC, in par-               tuting a coherent and exhaustive system specifically designed
    ticular Article 6 thereof and Annex III thereto, and with           to ensure the protection of human and animal health, the ban
    Commission Decision 1999/514/EC of 23 July 1999                     cannot be justified by France by reference to Article 30 EC.
    setting the date on which dispatch from the United
    Kingdom of bovine products under the date-based export
    scheme may commence by virtue of Article 6(5) of Council
    Decision 98/256/EC (2), in particular Article 1 thereof, and,
    especially, by refusing to permit the marketing within its
    territory of products eligible under that scheme (‘the
    DBES’), as referred to in Article 6 and Annex III aforesaid,
    the French Republic has infringed those two decisions and,
    in particular, the said provisions, and has violated the EC         Lastly, the Commission considers that, by having refused for
    Treaty, in particular Articles 28 and 10 thereof;                   over four and a half months already to comply with the
                                                                        decisions at issue, France has also failed to comply with its
                                                                        cooperation obligations under Article 10 EC.
— order the French Republic to pay the costs.
                                                                        (1) OJ L 113 of 15.4.1998, p. 33.
Pleas in law and main arguments                                         (2) OJ L 195 of 28.7.1999, p. 42.
                                                                        (3) Concerning veterinary and zootechnical checks applicable in
                                                                            intra-Community trade in certain live animals and products with
                                                                            a view to the completion of the internal market, as amended by
Under Article 249 EC, a decision is binding in its entirety upon
                                                                            Council Directive 92/118/EEC of 17 December 1992 laying down
those to whom it is addressed. That is also the case as regards             animal health and public health requirements governing trade in
the decisions at issue, which are binding on all Member                     and imports into the Community of products not subject to the
States. The clear, precise and unconditional wording of those               said requirements laid down in specific Community rules referred
decisions, in particular Article 1 of Decision 1999/514/EC,                 to in Annex A(I) to Directive 89/662/EEC and, as regards
which fixes 1 August 1999 as the date from which shipments                  pathogens, to Directive 90/425/EEC (OJ L 62 of 15.3.1993,
may take place, confers no discretion on the Member States as               p. 49).
to the date from which, and the manner in which, shipments              (4) OJ L 169 of 27.6.1997, p. 85.
under the DBES may commence. A Member State is not
entitled, by relying on the scientific opinion of a national
agency, to substitute its own assessment of the risks for that
carried out by the Commission in accordance with its powers,
which in the present case are those conferred by Article 10(4)
of Council Directive 90/425/EEC (3).