title: Case C-191/14: Request for a preliminary ruling from the Landesverwaltungsgericht Niederösterreich (Austria) lodged on 17 April 2014  — Borealis Polyolefine GmbH v Bundesminister für Land-, Forst-, Umwelt und Wasserwirtschaft

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/3

         Request for a preliminary ruling from the Landesverwaltungsgericht Niederösterreich (Austria) lodged on 17 April 2014 — Borealis Polyolefine GmbH v Bundesminister für Land-, Forst-, Umwelt und Wasserwirtschaft
   (Case C-191/14)
   2014/C 303/06
   Language of the case: German

      Referring court

   Landesverwaltungsgericht Niederösterreich

      Parties to the main proceedings

      Appellant: Borealis Polyolefine GmbH

      Respondent authority: Bundesminister für Land-, Forst-, Umwelt und Wasserwirtschaft

      Questions referred

               1.

               Is Decision 2013/448/EU (1) invalid and does it infringe Article 10a(5) of Directive 2003/87/EC (2) in so far as it excludes from the basis of calculation pursuant to subparagraphs (a) and (b) of Article 10a(5) of that directive emissions associated with waste gases produced by installations falling within Annex I to Directive 2003/87/EC and heat used by installations falling within Annex I to Directive 2003/87/EC and which comes from combined heat and power installations, for which a free allocation is granted pursuant to Article 10a(1) and 10a(4) of Directive 2003/87/EC and Decision 2011/278/EU? (3)

               2.

               Is Decision 2013/448/EU invalid and does it infringe Article 3e and 3u of Directive 2003/87/EC, alone and/or in conjunction with Article 10a(5) of Directive 2003/87/EC, in so far as it provides that CO2 emissions associated with waste gases — which are produced by installations falling within Annex I to Directive 2003/87/EC — and heat used in installations falling within Annex I to Directive 2003/87/EC and which was acquired by combined heat and power installations are emissions from ‘electricity generators’?

               3.

               Is Decision 2013/448/EU invalid and does it infringe the objectives of Directive 2003/87/EC in so far as it creates an asymmetry by excluding emissions associated with the combustion of waste gases and with heat produced in cogeneration from the basis of calculation in subparagraphs (a) and (b) of Article 10a(5), whereas free allocation with regard to them is due in accordance with Article 10a(1) and 10a(4) of Directive 2003/87/EC and Decision 2011/278/EU?

               4.

               Is Decision 2011/278/EU invalid and does it infringe Article 290 TFEU and Article 10a(5) of Directive 2003/87/EC in so far as Article 15(3) of that decision amends subparagraphs (a) and (b) of Article 10a(5) of Directive 2003/87/EC to the effect that it replaces the reference to ‘installations which are not covered by paragraph 3’ by the reference to ‘installations that are not electricity generators’?

               5.

               Is Decision 2013/448/EU invalid and does it infringe Article 23(3) of Directive 2003/87/EC in so far as that decision was not adopted on the basis of the regulatory procedure with scrutiny which is laid down in Article 5a of Council Decision 1999/468/EC and Article 12 of Regulation (EU) No 182/2011?

               6.

               Is Article 17 of the European Charter of Fundamental Rights to be understood as precluding the retention of free allocations on the basis of the wrongful calculation of a cross-sectoral correction factor?

               7.

               Is Article 10a(5) of Directive 2003/87/EC, on its own and/or in conjunction with Article 15(3) of Decision 2011/278/EU, to be understood as precluding the application of a provision of national law which provides for the application of the wrongfully calculated uniform cross-sectoral correction factor, as determined in Article 4 of Decision 2013/448/EU and in Annex II thereto, to the free allocations in a Member State?

               8.

               Is Decision 2013/448/EU invalid and does it infringe Article 10a(5) of Directive 2003/87/EC in so far as it includes only emissions from installations which were contained in the Community scheme from 2008, with the result that it excludes those emissions which are associated with activities which were contained in the Community scheme from 2008 (in the amended Annex I to Directive 2003/87/EC) if those activities took place in installations which were already contained in the Community scheme prior to 2008?

               9.

               Is Decision 2013/448/EU invalid and does it infringe Article 10a(5) of Directive 2003/87/EC in so far as it includes only emissions from installations which were contained in the Community scheme from 2013, with the result that it excludes those emissions which are associated with activities which were contained in the Community scheme from 2013 (in the amended Annex I to Directive 2003/87/EC) if those activities took place in installations which were already contained in the Community scheme prior to 2013?

      (1)  Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2013 L 240, p. 27).

      (2)  Directive of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

      (3)  Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).


title: Case C-46/12: Reference for a preliminary ruling from the Ankenævnet for Uddannelsesstøtten (Denmark), lodged on 26 January 2012 — L.N.

text:
               14.4.2012

               EN

               Official Journal of the European Union

               C 109/7

         Reference for a preliminary ruling from the Ankenævnet for Uddannelsesstøtten (Denmark), lodged on 26 January 2012 — L.N.
   (Case C-46/12)
   2012/C 109/12
   Language of the case: Danish

      Referring tribunal

   Ankenævnet for Uddannelsesstøtten (Appeals Tribunal, the Danish Students’ Grants and Loans Scheme)

      Party to the main proceedings

      Applicant: L.N.

      Question referred

   Does Article 7(1)(c), read in conjunction with Article 24(2), of the Directive on residence) (1) mean that a Member State (host Member State), in the assessment of whether a person must be deemed to be a worker entitled to education assistance, may take account of the fact that the person entered the host Member State for the principal purpose of following a course of study, with the result that the host Member State is not obliged to grant education assistance aid for studies to that person (see aforementioned Article 24(2) of the Directive on residence)?

      (1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).


title: Case F-52/09: Action brought on 30 July 2009 — Da Silva Pinto Branco v Court of Justice

text:
               10.10.2009

               EN

               Official Journal of the European Union

               C 244/16

         Action brought on 30 July 2009 — Da Silva Pinto Branco v Court of Justice
   (Case F-52/09)
   2009/C 244/27
   Language of the case: French

      Parties

      Applicant: Delfina Da Silva Pinto Branco (Luxembourg, Luxembourg) (represented by: M. Erniquin, lawyer)

      Defendant: Court of Justice of the European Communities

      Subject-matter and description of the proceedings

   First, application for annulment of the decision to dismiss the applicant. Next, application for the applicant to be established as an official or to be reinstated in her post as a probationary official. Lastly, application for damages for non-pecuniary losses suffered.

      Form of order sought

               —

               annul the decision of the Appointing Authority dated 24 October 2008 and the opinion of the Reports Committee dated 8 October 2008, the two probationary period reports established by the assessor, dated 22 February 2008 and 10 June 2008, respectively, and also the decision of the Appointing Authority dated 18 April 2008 to extend the probationary period;

               —

               establish the applicant as an official as from 1 March 2008, and also grant her entitlement to compensation corresponding to the difference between the remuneration she would have received had she been established as an official on 1 March 2008 and the emoluments she has actually received as from that date until the date of judgment; otherwise, in the alternative, reinstate the applicant in her functions as a probationary official either in the same unit where she was prior to her dismissal or in another unit in the institution in order that she may complete a fresh probationary period;

               —

               order the defendant to pay compensation in the amount of EUR 5 000 by way of damages for non-pecuniary losses suffered;

               —

               order the Court of Justice of the European Communities to pay the costs.


title: Case T-539/14: Action brought on 16 July 2014  — North Drilling v Council

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/55

         Action brought on 16 July 2014 — North Drilling v Council
   (Case T-539/14)
   2014/C 303/66
   Language of the case: Spanish

      Parties

      Applicant: North Drilling Co. (Tehran, Iran) (represented by: J. Viñals Camallonga, L. Barriola Urruticoechea and J. Iriarte Ángel, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Article 1 of Council Decision 2014/222/CFSP of 16 April 2014, in so far as it refers to the applicant, and remove the applicant’s name from the annex thereto;

               —

               annul Article 1 of Council Implementing Regulation (EU) No 397/2014 of 16 April 2014, in so far as it refers to the applicant, and remove the applicant’s name from the annex thereto; and

               —

               order the Council to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: a manifest error in the assessment of the facts on which the contested measures are based, in that they lack any factual or evidential basis.

               2.

               Second plea in law: breach of the obligation to state reasons, since the reasons stated for the contested measures, as regards the applicant, lack any real basis and are imprecise, unspecific and generic, making it impossible for the applicant adequately to prepare its defence.

               3.

               Third plea in law: infringement of the right to effective judicial protection as regards the reasons stated for the measures, the lack of evidence for the reasons stated and the rights of defence and of property, since the requirements to state reasons and to provide actual evidence were not met, which affects the other rights.

               4.

               Fourth plea in law: misuse of power, since there is objective, specific and consistent evidence that, in adopting the penalties, the Council pursued aims different from those it claimed to pursue, thus misusing its power in a fraudulent manner.

               5.

               Fifth plea in law: misinterpretation of the legal rules intended to be applied, in that they are interpreted and applied in an incorrect and extensive manner, which is inadmissible in relation to penalties.

               6.

               Sixth plea in law: infringement of the right to property, in that the applicant’s right to property was limited without any real justification and without respecting the principle of proportionality.

               7.

               Seventh plea in law: breach of the principle of equal treatment, since the applicant’s competitive position was damaged, without there being any justification for such treatment.


title: Case T-587/13: Action brought on 4 November 2013 — Schwerdt v OHIM — Iberamigo (cat&clean)

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/28

         Action brought on 4 November 2013 — Schwerdt v OHIM — Iberamigo (cat&clean)
   (Case T-587/13)
   2014/C 24/50
   Language in which the application was lodged: German

      Parties

      Applicant: Miriam Schwerdt (Porta-Westfalica, Germany) (represented by: K. Kruse, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Iberamigo, SA (Rubi, Spain)

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul decision No R 1799/2012-4 of the Board of Appeal of the defendant of 3 September 2013;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: figurative mark in colour representing a cat with the word elements ‘cat & clean’ for goods in Class 31 — application for Community trade mark No 9 612 301

      Proprietor of the mark or sign cited in the opposition proceedings: Iberamigo, SA

      Mark or sign cited in opposition: Spanish word mark ‘CLEAN CAT’ for goods in Class 31

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 and of Article 29 et seq. of the Treaty on the Functioning of the European Union.


title: Case T-329/06: Action brought on 27 November 2006 — Enercon GmbH v OHIM

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/76

         Action brought on 27 November 2006 — Enercon GmbH v OHIM
   (Case T-329/06)
   (2006/C 326/155)
   Language of the case: German
   Parties

      Applicant: Enercon GmbH (Aurich, Germany) (represented by R. Böhm, lawyer)

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

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 September 2006 (Case R 0394/2006-1);

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘E’ for goods in Classes 7, 9 and 19 (application No 3 817 566)

      Decision of the Examiner: Refusal of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1) as it was held that the mark for which registration was sought lacked distinctive character and that its availability had to be preserved.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


C 166/12              EN              Official Journal of the European Communities                                  30.5.98
      Removal from the register of Case C-251/96 (1)                   Removal from the register of Case C-305/95 (1)
                        (98/C 166/20)                                                    (98/C 166/24)
By order of 29 October 1997, the President of the Court          By order of 29 January 1998 the President of the Sixth
of Justice of the European Communities ordered the               Chamber of the Court of Justice of the European
removal from the register of Case C-251/96: (Reference           Communities has ordered the removal from the register of
for a preliminary ruling from the Pretura Circondariale di       Case C-305/95 (reference for a preliminary ruling from
Rovigo): Criminal proceedings against Giuseppe Cordella.         the Cour du Travail, Mons): UniversiteÂ Catholique de
                                                                 Louvain v Francine Plapied and Danielle Gallez.
(1) OJ C 294 of 5.10.1996.
                                                                 (1) OJ C 299 of 11.11.1995.
      Removal from the register of Case C-224/96 (1)
                                                                       Removal from the register of Case C-325/97 (1)
                        (98/C 166/21)
                                                                                (98/C 166/25)
By order of 13 November 1997, the President of the               By order of 11 February 1998 the President of the Court
Court of Justice of the European Communities ordered the         of Justice of the European Communities has ordered the
removal from the register of Case C-224/96: Promotion            removal from the register of Case C-325/97: Commission
LeÂopold SA v European Parliament.                               of the European Communities v Federal Republic of
                                                                 Germany.
(1) OJ C 269 of 14.9.1996.
                                                                 (1) OJ C 331 of 1.11.1997.
       Removal from the register of Case C-91/97 (1)
                        (98/C 166/22)                                  Removal from the register of Case C-238/97 (1)
                                                                                (98/C 166/26)
By order of 27 January 1998 the President of the Court of
Justice of the European Communities has ordered the              By order of 18 February 1998 the President of the Court
removal from the register of Case C-91/97 (reference for a       of Justice of the European Communities has ordered the
preliminary ruling from the Bundessozialgericht): Arif           removal from the register of Case C-238/97: Commission
Altiney v Bundesanstalt für Arbeit.                              of the European Communities v Kingdom of Spain.
(1) OJ C 131 of 26.4.1997.                                       (1) OJ C 252 of 16.8.1997.
                                                                       Removal from the register of Case C-146/96 (1)
      Removal from the register of Case C-142/97 (1)
                                                                                (98/C 166/27)
                        (98/C 166/23)
                                                                 By order of 3 March 1998 the President of        the Sixth
By order of 27 January 1998 the President of the Court of        Chamber of the Court of Justice of the           European
Justice of the European Communities has ordered the              Communities has ordered the removal from the    register of
removal from the register of Case C-142/97: Commission           Case     C-146/96:     Commission     of  the    European
of the European Communities v Italian Republic.                  Communities v Federal Republic of Germany.
(1) OJ C 181 of 14.6.1997.                                       (1) OJ C 197 of 6.7.1996.


title: Joined Cases C-250/09 and C-268/09: Judgment of the Court (Second Chamber) of 18 November 2010 (reference for a preliminary ruling from the Rayonen sad Plovdiv — Bulgaria) — Vasil Ivanov Georgiev v Tehnicheski universitet — Sofia, filial Plovdiv (Directive 2000/78/EC — Article 6(1) — Prohibition of discrimination on grounds of age — University lecturers — National provision providing for the conclusion of fixed-term employment contracts beyond the age of 65 — Compulsory retirement at the age of 68 — Justification for differences in treatment on grounds of age)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/12

         Judgment of the Court (Second Chamber) of 18 November 2010 (reference for a preliminary ruling from the Rayonen sad Plovdiv — Bulgaria) — Vasil Ivanov Georgiev v Tehnicheski universitet — Sofia, filial Plovdiv
   (Joined Cases C-250/09 and C-268/09) (1)

   (Directive 2000/78/EC - Article 6(1) - Prohibition of discrimination on grounds of age - University lecturers - National provision providing for the conclusion of fixed-term employment contracts beyond the age of 65 - Compulsory retirement at the age of 68 - Justification for differences in treatment on grounds of age)
   2011/C 13/19
   Language of the case: Bulgarian

      Referring court

   Rayonen sad Plovdiv

      Parties to the main proceedings

      Applicant: Vasil Ivanov Georgiev

      Defendant: Tehnicheski universitet — Sofia, filial Plovdiv

      Re:

   Reference for a preliminary ruling — Rayonen sad Plovdiv — Interpretation of Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — National law permitting university professors who have reached the age of 65 to conclude an employment contract only for a fixed duration — National law fixing 68 as the final retirement age for university professors — Justification for differences of treatment on grounds of age

      Operative part of the judgment

   Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, in particular Article 6(1), must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, under which university professors are compulsorily retired when they reach the age of 68 and may continue working beyond the age of 65 only by means of fixed-term one-year contracts renewable at most twice, provided that that legislation pursues a legitimate aim linked inter alia to employment and labour market policy, such as the delivery of quality teaching and the best possible allocation of posts for professors between the generations, and that it makes it possible to achieve that aim by appropriate and necessary means. It is for the national court to determine whether those conditions are satisfied.
   Since this is a dispute between a public institution and an individual, if national legislation such as that at issue in the main proceedings does not satisfy the conditions set out in Article 6(1) of Directive 2000/78, the national court must decline to apply that legislation.

      (1)  OJ C 220, 12.09.2009.


title: Case T-509/14: Action brought on 7 July 2014  — Decal España v Commission

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/56

         Action brought on 7 July 2014 — Decal España v Commission
   (Case T-509/14)
   2014/C 292/68
   Language of the case: Spanish

      Parties

      Applicant: Decal España, SA (Barcelona, Spain) (represented by: M. Silva Sánchez, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the contested decision in so far as it categorises the measures which, according to that decision, together constitute the ‘Spanish Tax Lease System’ as new State aid that is incompatible with the internal market;

               —

               in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as the beneficiaries of the alleged aid and as the sole addressees of the order for recovery;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it orders recovery of the alleged aid in breach of general principles of EU law;

               —

               in any event, annul Article 4 of the contested decision, in so far as it makes a determination as to the lawfulness of private contracts between the investors and other entities, in full or in such a way as to limit the bar on passing on the burden of recovery to the profitability of the operations; and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The pleas in law and main arguments are those raised in Case T-700/13 Bankia v Commission.


title: Case C-507/08: Action brought on 21 November 2008 — Commission of the European Communities v Slovak Republic

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/9

         Action brought on 21 November 2008 — Commission of the European Communities v Slovak Republic
   (Case C-507/08)
   2009/C 102/12
   Language of the case: Slovak

      Parties

      Applicant: Commission of the European Communities (represented by: C. Giolito, J. Javorský, K. Walkerová, acting as Agents)

      Defendant: Slovak Republic

      Form of order sought

               —

               declare that the Slovak Republic, by failing to execute the Commission Decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s. (notified under C(2006) 2082) (1) has failed to fulfil its obligations under the fourth paragraph of Article 249 of the EC Treaty and Article 2 of that decision;

               —

               order Slovak Republic to pay the costs.

      Pleas in law and main arguments

   In its decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s., the Commission found that the measures which the Slovak Republic implemented for Frucona Košice, a.s. constituted State aid within the meaning of Article 87(1) EC and that that aid was incompatible with the common market. It also directed the Slovak Republic to take all necessary measures to recover from the beneficiary the unlawfully granted aid.
   To date, the aid awarded to Frucona has not been recovered.
   State aid was granted to Frucona in the form of a waiver of a tax debt confirmed by the court in the context of an arrangement procedure. The Slovak Republic applied to recover the unlawfully granted aid in legal proceedings. The first instance court dismissed the action inter alia because Frucona’s obligation to pay its debt to the tax authorities arose ex lege. The appeal court upheld the judgment of the first instance court inter alia because it was not possible to review the order concerning the arrangement, because, as res judicata, it must be respected by all bodies, including the appeal court and, also, because the Commission in the decision failed to respect the provisions of national law governing conflicts between bankruptcy and enforcement proceedings.
   The judgments of both courts prevent the immediate and effective execution of the Commission decision.
   It is not sufficient that the Slovak Republic made use of all means at its disposal. The application of those means must result in the immediate and effective enforcement of the decision, failing which the Slovak Republic must be considered as having failed to fulfil its obligations. A Member State fails to fulfil its obligation to recover if the steps taken by that Member State have no impact on the actual recovery of those amounts.

      (1)  OJ L 112, 30.4.2007, p. 14.


title: Case C-171/12 P: Order of the Court (Seventh Chamber) of 28 February 2013 — Carrols Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Giulio Gambettola (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 51(1)(b) — Community figurative mark Pollo Tropical CHICKEN ON THE GRILL — Application for a declaration of invalidity submitted by the proprietor of the national figurative mark Pollo Tropical CHICKEN ON THE GRILL and the national word mark POLLO TROPICAL — Absolute grounds for invalidity — Bad faith — Inadmissibility)

text:
               4.5.2013

               EN

               Official Journal of the European Union

               C 129/3

         Order of the Court (Seventh Chamber) of 28 February 2013 — Carrols Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Giulio Gambettola
   (Case C-171/12 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 51(1)(b) - Community figurative mark Pollo Tropical CHICKEN ON THE GRILL - Application for a declaration of invalidity submitted by the proprietor of the national figurative mark Pollo Tropical CHICKEN ON THE GRILL and the national word mark POLLO TROPICAL - Absolute grounds for invalidity - Bad faith - Inadmissibility)
   2013/C 129/05
   Language of the case: Spanish

      Parties

      Appellant: Carrols Corp. (represented by: I. Temiño Ceniceros, abogado)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent), Giulio Gambettola (represented by: F. Brandolini Kujman, abogado)

      Re:

   Appeal against the judgment of the General Court (Eighth Chamber) of 1 February 2012 in Case T-291/09 Carrols Corp. v OHIM, by which that Court dismissed an application for annulment of the decision of the First Board of Appeal of OHIM of 7 May 2009 (Case R 632/2008-1), relating to invalidity proceedings between Carrols Corp. and Mr Giulio Gambettola

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Carrols Corp. shall pay the costs.

      (1)  OJ C 174, 16.6.2012.


title: Case C-247/06: Judgment of the Court (Second Chamber) of 6 November 2008 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil its obligations — Directive 85/337/EEC — Effects of certain projects on the environment — Heating installation — Energy production — Partial incineration of dangerous products)

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/2

         Judgment of the Court (Second Chamber) of 6 November 2008 — Commission of the European Communities v Federal Republic of Germany
   (Case C-247/06) (1)

   (Failure of a Member State to fulfil its obligations - Directive 85/337/EEC - Effects of certain projects on the environment - Heating installation - Energy production - Partial incineration of dangerous products)
   (2008/C 327/02)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: U. Wölker and F. Simonetti, acting as Agents)

      Defendant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze-Bahr, acting as Agents)

      Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: T. Harris, I. Rao and J. Maurici, acting as Agents)
   Re:
   Failure of a Member State to fulfil its obligations — Infringement of Article 4(1), in conjunction with Annex I, point 9, of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) — Authorisation of a heating installation for the production of energy which partly incinerates dangerous waste without first carrying out an assessment of the effects on the environment — Waste disposal and waste recovery operations
   Operative part of the judgment
   The Court:

               1.

               dismisses the action;

               2.

               orders the Commission to pay the costs;

               3.

               orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

      (1)  OJ C 190 of 12.8.2006.


title: Case T-48/16 R: Order of the President of the General Court of 25 August 2017 — Sigma Orionis v Commission (Application for interim measures — Arbitration clause — Seventh Framework Programme of the European Community (2007-2013) and Horizon 2020 Framework Program for Research and Innovation — Decision to suspend payments and terminate grant contracts following a financial audit — Amounts allegedly due by the Commission in the context of the implementation of the grant contracts — Claim for damages — Application for suspension of operation of a measure — Lack of urgency — Balancing of interests)

text:
               9.10.2017

               EN

               Official Journal of the European Union

               C 338/14

         Order of the President of the General Court of 25 August 2017 — Sigma Orionis v Commission
   (Case T-48/16 R)
   ((Application for interim measures - Arbitration clause - Seventh Framework Programme of the European Community (2007-2013) and Horizon 2020 Framework Program for Research and Innovation - Decision to suspend payments and terminate grant contracts following a financial audit - Amounts allegedly due by the Commission in the context of the implementation of the grant contracts - Claim for damages - Application for suspension of operation of a measure - Lack of urgency - Balancing of interests))
   (2017/C 338/14)
   Language of the case: French

      Parties

      Applicant: Sigma Orionis SA (Valbonne, France) (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European Commission (represented by: A. Lewis and M. Siekierzyńska, acting as Agents)

      Re:

   Application based on Articles 278 and 279 TFEU and asking for immediate payment by the Commission of various sums under several grant agreements and asking for suspension of the operation of the decision to terminate those agreements.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case T-90/09: Order of the General Court of 26 January 2012 — Mojo Concerts and Amsterdam Music Dome Exploitatie v Commission (State aid — Action for annulment — Investment of the Gemeente Rotterdam in the Ahoy’ complex — Decision finding that there was no State aid — Applicants not individually concerned — Inadmissibility)

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/22

         Order of the General Court of 26 January 2012 — Mojo Concerts and Amsterdam Music Dome Exploitatie v Commission
   (Case T-90/09) (1)

   (State aid - Action for annulment - Investment of the Gemeente Rotterdam in the Ahoy’ complex - Decision finding that there was no State aid - Applicants not individually concerned - Inadmissibility)
   2012/C 89/36
   Language of the case: Dutch

      Parties

      Applicants: Mojo Concerts BV (Delft, Netherlands) and Amsterdam Music Dome Exploitatie BV (Delft, Netherlands) (represented by: S. Beeston, Solicitor)

      Defendant: European Commission (represented by: H. van Vliet and K. Gross, Agents)

      Interveners in support of the defendant: Kingdom of the Netherlands (represented by: M. Noort, C. Wissels, M. de Grave, Y. de Vries and J. Langer, agents); Gemeente Rotterdam (Netherlands) (represented by: J. Feenstra and J. Fanoy, lawyers); and Ahoy’ Rotterdam NV (Rotterdam) (represented initially by M. van der Woude and E. Offers, and subsequently by M. Maas-Cooymans, lawyers)

      Re:

   Application for annulment of Commission Decision C(2008) 6018 final of 21 October 2008 on the investment made by the Gemeente Rotterdam in the Ahoy’ complex (State aid C 4/2008 (ex N 97/2007, ex CP 91/2007)).

      Operative part of the order

   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders Mojo Concerts BV and Amsterdam Music Dome Exploitatie BV to bear their own costs and to pay those incurred by the European Commission, the Gemeente Rotterdam and Ahoy’ Rotterdam NV;

               3.

               Orders the Kingdom of the Netherlands to bear its own costs.

      (1)  OJ C 102, 1.5.2009.


title: Case T-245/01: Action brought on 4 October 2001 by Showa Denko K.K. against the Commission of the European Communities

text:
19.1.2002               EN                    Official Journal of the European Communities                                         C 17/15
The applicant claims that the Court should:                              The Applicant alleges that the Commission has inappropriately
                                                                         refused to take account of attenuating circumstances as set out
                                                                         in the Commission’s Guidelines on the method of setting fines
—     annul Article 1 of the Commission Decision of 18 July              and thereby violated the principle ‘patere legem quam ipse
      2001 in Case COMP/E-1/36.490 — Graphite electrodes,                fecisti’ and the protection of legitimate interests. It also acted
      in so far as it declares that the Applicant has participated       ultra vires and in violation of Articles 3(g), 5 and 81 EC by
      in an infringement of Article 81 EC and Article 53(1)              imposing a fine calculated on the basis of the Applicant’s
      EEA for the period May 1992-March 1993;                            worldwide turnover, even though the fine relates to an
                                                                         infringement that was implemented by the Applicant almost
                                                                         exclusively outside the European Union.
—     annul Article 3 of the Commission Decision of 18 July
      2001 in Case COMP/E-1/36.490 — Graphite electrodes,
      in so far as it imposes on the Applicant a fine of EUR
                                                                         Finally, the Applicant submits that the Commission has
      12.2 million;
                                                                         violated the principle of fairness and the principle ‘non bis in
                                                                         idem’, by failing to take into consideration the fine already
                                                                         imposed by a third State when determining the level of the
—     in the alternative, substantially reduce the above-men-            fine to be imposed on the Applicant.
      tioned fine;
—     in any event, order that the costs of the proceedings be
      borne by the Commission.
                                                                         Action brought on 4 October 2001 by Showa Denko K.K.
Pleas in law and main arguments                                            against the Commission of the European Communities
                                                                                (Case T-245/01)
The Applicant is a small Japanese producer of graphite
electrodes. According to the contested decision, the Applicant                                    (2002/C 17/27)
and seven other undertakings had infringed Article 81(1) of
the EC Treaty and Article 53(1) of the EEA Agreement by
participating in a complex of agreements and concerted                                      (Language of the case: English)
practices in the graphite sector. In the decision, the Com-
mission labelled the Japanese producers ‘active members’
participating in the illicit arrangement and inflicted a fine on
the Applicant of EUR 12.2 million. The infringement also
resulted in parallel proceedings in other states, e.g. in the            An action against the Commission of the European Communi-
United States.                                                           ties was brought before the Court of First Instance of the
                                                                         European Communities on 4 October 2001 by Showa Denko
                                                                         K.K., represented by Mr Maurits Dolmans and Mr Peter
                                                                         Werdmuller of Cleary Gottlieb Steen & Hamilton, Brussels
The Applicant denies neither the existence of an infringement            (Belgium).
nor its participation in that infringement. It submits, however,
that the Commission has infringed essential procedural
requirements and rights, including the right to a defence, the           The applicant claims that the Court should:
duty to state reasons, and the principle of equal treatment, by
declaring, despite the absence of sufficient and/or admissible
evidence, that the Applicant participated in the infringement            —     annul Article 3(d) of the Commission’s Decision in Case
between May 1992 and March 1993.                                               No. COMP/E-1/36.490 — Graphite electrodes, or
                                                                         —     alternatively, reduce the fine imposed on Showa Denko
                                                                               K.K. to EUR 2.95 million or such other amount as
Furthermore, by its unlawful determination of the base amount                  the Court deems proportional, reasonable and non-
of the Applicant’s fine and by its imposition of a fine out of                 discriminatory;
proportion to the volume and the value of the products
concerned realised by the Applicant, the Commission has
violated the principles of proportionality and equal treatment           —     order the Commission to pay the applicant’s legal fees
as well as the duty to state reasons.                                          and expenses.
 ---pagebreak--- C 17/16                EN                     Official Journal of the European Communities                                      19.1.2002
Pleas in law and main arguments                                          European Communities on 6 October 2001 by UCAR Inter-
                                                                         national Inc., represented by Mr K.P.E. Lasok QC of Monckton
                                                                         Chambers, London (United Kingdom) and Mr B. Hartnett of
                                                                         Squire Saunders Dempsey LLP, Brussels (Belgium).
The action concerns Commission Decision C(2001)1986 of
18 July 2001 in which the Commission found that the
applicant, a Japanese firm, together with seven other undertak-
ings, had infringed Article 81(1) EC and Article 53(1) of the
EEA Agreement by participating in a complex system of                    The applicant claims that the Court should:
agreements and concerted practices in the graphite electrodes
sector. It imposed a fine of EUR 17.4 million on the applicant.
In parallel proceedings in the United States, a fine was imposed         —     annul Article 3 of the Commission Decision made on
upon a subsidiary company of the applicant.                                    18 July 2001 in Case No. COMP/E-1/36.490 — Graphite
                                                                               Electrodes, in so far as it imposes a fine on UCAR;
                                                                               alternatively, reduce the level of that fine;
The applicant contests the calculation of the fine and submits
that the fine is unwarranted, discriminatory and dispro-                 —     annul Article 4 of the Commission Decision made on
portionate. It submits that the Commission violated the                        18 July 2001 in Case No. COMP/E-1/36.490 — Graphite
principles of non-discrimination and proportionality in using                  Electrodes, in so far as it applies to UCAR; alternatively,
a 250 % ‘deterrence factor’ only for the applicant, the resulting              modify the terms of payment applicable to the fine
mark-up effectively eliminating the leniency reduction. Such a                 payable by UCAR in accordance with the terms and
‘deterrence factor’ is not objectively justified, and the Com-                 conditions set forth in Annex 50;
mission erred in law by referring to total group-wide turnover
as a justification, even though the ‘deterrence factor’ is not
rationally related to, or necessary for, effective deterrence.           —     annul the decision contained in the Commission’s letter
                                                                               dated 23 July 2001, in so far as it provides that the
                                                                               Commission will undertake collection of the fine on
                                                                               expiry of the period for its payment unless UCAR has not
Furthermore, the applicant alleges that the Commission erred
                                                                               only instituted proceedings for the annulment of the
in law in basing the basic fine on the worldwide market share
                                                                               Decision made on 18 July 2001 but also satisfies the two
instead of EEA-wide turnover, and at the same time ignoring
                                                                               conditions referred to in the letter; alternatively, modify
fines imposed in other jurisdictions. Finally, the Commission
                                                                               those terms in accordance with the terms and conditions
violated the principles of non-discrimination and pro-
                                                                               set forth in Annex 50;
portionality in reducing the fine imposed on UCAR Inter-
national Inc. by 15.2 % without proportionally reducing the
applicant’s fine.
                                                                         —     annul the decision contained in the Commission’s letter
                                                                               dated 9 August 2001, in so far as the Commission has
                                                                               rejected any and all proposals that do not involve
                                                                               payment of the fine in full, payment of interest, and/or
                                                                               provision of a bank guarantee ensuring payment of the
                                                                               fine plus accrued interest, and has in particular rejected a
                                                                               lien on the assets of UCAR; alternatively, modify those
                                                                               terms in accordance with the terms and conditions set
                                                                               forth in Annex 50;
Action brought on 6 October 2001 by UCAR Inter-
national Inc. against the Commission of the European                     —     order the Commission to pay its own costs and those
                           Communities                                         incurred by UCAR International Inc.
                         (Case T-246/01)
                          (2002/C 17/28)                                 Pleas in law and main arguments
                  (Language of the case: English)
                                                                         By a decision of 18 July 2001, the European Commission
                                                                         found that eight undertakings had infringed Article 81(1) of
                                                                         the EC Treaty and Article 53(11) of the EEA Agreement by
                                                                         participating in a complex of agreements and concerted
An action against the Commission of the European Communi-                practices in the graphite electrodes sector. A fine of
ties was brought before the Court of First Instance of the               EUR 50.4 million was imposed on the applicant and the terms


title: Case T-48/10 P: Appeal brought on 2 February 2010 by Herbert Meister against the judgment of the Civil Service Tribunal delivered on 30 November 2009 in Case F-17/09, Meister v OHIM

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/55

         Appeal brought on 2 February 2010 by Herbert Meister against the judgment of the Civil Service Tribunal delivered on 30 November 2009 in Case F-17/09, Meister v OHIM
   (Case T-48/10 P)
   2010/C 100/81
   Language of the case: German

      Parties

      Appellant: Herbert Meister (Muchamiel, Spain) (represented by H.-J. Zimmermann, lawyer)

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

      Form of order sought by the appellant

               —

               Annul the judgment of the Civil Service Tribunal of 30 November 2009 in Case F-17/09 Meister v OHIM;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   The appeal is against the judgment of the Civil Service Tribunal of 30 November 2009 in Case F-17/09 Meister v OHIM by which the appellant’s action was dismissed as manifestly inadmissible.
   In support of his appeal, the appellant claims that the action at first instance was necessary on the ground that the facts are directly materially connected with the subject-matter of the previous Joined Cases F-138/06 and F-37/08, which at the time the action was brought had not been decided. The appellant claims that the dismissal from the outset of Case F-17/09 as inadmissible without an oral hearing infringes the guarantee of the right to be heard in Article 6 ECHR. Furthermore, the appellant complains that the Civil Service Tribunal dismissed its request for a stay of proceedings in view of an appeal brought against the judgment in Case F-37/08. Finally, it complains that the court of first instance’s assessment of the subject-matter was incomplete an incorrect in law.


title: Action brought on 2 March 1998 by the Commission of the European Communities against the Kingdom of the Netherlands (Case C-63/98)

text:
C 166/2               EN                  Official Journal of the European Communities                                      30.5.98
LeÂger, Advocate General; H. von Holstein, Deputy                    Fisheries and Food, ex parte Compassion in World
Registrar, for the Registrar, has given a judgment on                Farming Limited Ð on the interpretation of Articles 34
17 March 1998, in which it has ruled:                                and 36 of the EC Treaty and the validity of Council
                                                                     Directive 91/629/EEC of 19 November 1991 laying down
                                                                     minimum standards for the protection of calves (OJ L 340
1. The exception in respect of vehicles used by public               of 11.12.1991, p. 28) Ð the Court, composed of: G. C.
    authorities to provide public services which are not in          Rodríguez Iglesias, President, C. Gulmann, H.
    competition with professional road hauliers, provided            Ragnemalm, M. Wathelet (Presidents of Chambers), G. F.
    for in Article 13(1)(b) of Council Regulation (EEC)              Mancini (Rapporteur), J. C. Moitinho de Almeida, P. J. G.
    No 3820/85 of 20 December 1985 on the                            Kapteyn, J. L. Murray, D. A. O. Edward, J.-P. Puissochet,
    harmonisation of certain social legislation relating to          G. Hirsch, P. Jann and L. Sevón, Judges; P. LeÂger,
    road transport, does not apply to vehicles belonging to          Advocate General; L. Hewlett, Administrator, for the
    an undertaking which is wholly owned by a public                 Registrar, has given a judgment on 19 March 1998, in
    authority and which operates a public passenger                  which it has ruled:
    service under a contract granting it an exclusive right
    for a specified period following a call for competing
    tenders.                                                         1. Consideration of Council Directive 91/629/EEC of
                                                                         19 November 1991 laying down minimum standards
                                                                         for the protection of calves has disclosed no factor of
                                                                         such a kind as to affect its validity.
2. The requirement in Article 14(5) of Regulation (EEC)
    No 3820/85, that each driver assigned to a service
    referred to in Article 14(1) must carry an extract from          2. A Member State which has implemented the 1988
    the duty roster and a copy of the service timetable, is              Recommendation concerning Cattle, drawn up to
    not satisfied where the extract from the duty roster                 apply the principles of the European Convention on
    relates only to the day on which it is checked.                      the Protection of Animals kept for Farming Purposes,
                                                                         cannot rely on Article 36 of the EC Treaty and, in
(1) OJ C 26 of 25.1.1997.                                                particular, on the grounds of public morality, public
                                                                         policy or the protection of the health or life of animals
                                                                         laid down in that article, in order to justify restrictions
                                                                         on the export of live calves with a view to preventing
                                                                         those calves from being reared in the veal crate
                                                                         systems used in other Member States which have
                                                                         implemented Directive 91/629/EEC but which do not
                                                                         apply that recommendation.
              JUDGMENT OF THE COURT
                      of 19 March 1998                               (1) OJ C 46 of 17.2.1996.
in Case C-1/96 (reference for a preliminary ruling from
the High Court of Justice, Queen's Bench Division): The
Queen v Minister of Agriculture, Fisheries and Food, ex
      parte Compassion in World Farming Limited (1)
(Articles 34 and 36 of the EC Treaty Ð Directive 91/629/
EEC Ð European Convention on the Protection of                       Action brought on 2 March 1998 by the Commission of
Animals Kept for Farming Purposes Ð Recommendation                   the European Communities against the Kingdom of the
concerning Cattle Ð Export of calves from a Member                                             Netherlands
State maintaining the level of protection laid down by the
                                                                                (Case C-63/98)
Convention and the Recommendation Ð Export to
Member States which comply with the Directive but do                                         (98/C 166/04)
not observe the standards laid down in the Convention or
the Recommendation and use intensive farming systems
prohibited in the exporting State Ð Quantitative                     An action against the Kingdom of the Netherlands was
restrictions on exports Ð Exhaustive harmonisation Ð                 brought before the Court of Justice of the European
                   Validity of the Directive)                        Communities on 2 March 1998 by the Commission of the
                                                                     European Communities, represented by Wouter Wils,
                        (98/C 166/03)
                                                                     acting as Agent, with an address for service in
                                                                     Luxembourg at the office of C. Gómez de la Cruz, of its
                                                                     Legal Service, Wagner Centre, Kirchberg.
               (Language of the case: English)
                                                                     The applicant claims that the Court should:
In Case C-1/96: reference to the Court under Article 177
of the EC Treaty from the High Court of Justice (England
and Wales), Queen's Bench Division, for a preliminary                Ð declare that, by failing to take appropriate steps, in
ruling in the proceedings pending before that court                      managing fishing for shellfish in the Waddenzee, to
between The Queen and the Minister of Agriculture,                       avoid deterioration of the habitats of certain types of
 ---pagebreak--- 30.5.98                EN                Official Journal of the European Communities                                        C 166/3
    birds or any disturbances affecting the birds, in breach             mentioned in Annex I of the directive and for
    of Directive 79/409/EEC (1), in particular Articles 2                migratory birds are inadequate to enable those birds to
    and 4 thereof, and Directive 92/43/EEC (2) the                       continue to exist and to reproduce. The Commission
    Kingdom of the Netherlands has failed to fulfil its                  consequently      considers     that    the    Netherlands
    obligations under the Treaty; and                                    authorities have failed to comply with Article 4(1) and
                                                                         (2).
Ð order the Kingdom of the Netherlands to pay the                   Ð In accordance with Article 6(2) of Directive 92/43/
    costs.                                                               EEC on habitats, the Netherlands must take
                                                                         appropriate steps to avoid, in the special areas of
                                                                         conservation, the deterioration of natural habitats and
Pleas in law and main arguments:
                                                                         the habitats of species as well as disturbance of the
                                                                         species for which the areas have been designated,
Ð a general obligation is imposed on the Member States                   insofar as such disturbance could be significant in
    by Article 2 of Directive 79/409/EEC on wild birds to                relation to the objectives of the directive. According to
    take the requisite measures to maintain the bird                     Article 7 of that directive, that obligation replaces the
    population at a level which corresponds to ecological,               obligations arising under the first sentence of
    scientific and cultural requirements, or to adapt the                Article 4(4) of Directive 79/409/EEC and thus applies
    population to that level. In so doing Member States                  to the Waddenzee. The policy implemented by the
    may take account of economic and recreational                        Netherlands Government results in a deterioration of
    requirements. The severe decline in certain types of                 the quality of the habitat of the species of birds
    bird which feed on cockles or mussels or have an                     concerned in the special conservation area of the
    effect on fishing of shellfish in some other way is an               Waddenzee; the disturbances for those species are
    indication that the Netherlands policy does not satisfy              significant in relation to the objectives of the directive.
    that general requirement, since the measures necessary               The Commission therefore considers that the
    to maintain the bird population at a satisfactory level              Netherlands authorities have failed to comply with
    are still lacking.                                                   Article 6(2) of the directive on habitats.
                                                                    (1) Directive 79/409/EEC of the Council of 2 April 1979 on the
    It appears from the recommendations from various                    conservation of wild birds, OJ L 103 of 2.4.1979, p. 1.
    parties that even bearing in mind the economic                  (2) Directive 92/43/EEC of the Council of 21 May 1992 on the
    importance of shellfish fishing, it is none the less                conservation of natural habitats and of wild fauna and flora,
    possible to restrict the environmental effects to a                 OJ L 206 of 21.5.1992, p. 7.
    greater extent than is attainable with the current
    policy of the Netherlands Government. The
    possibilities of taking account of the interests of the
    fishing industry in a manner which has less effect on
    the environment have clearly not been studied by the
    Netherlands authorities. The Commission concludes               References for a preliminary ruling by the Arbeitsgericht,
    therefore that the Netherlands Government has not               Wiesbaden, by orders of that court of 27 February 1998
    complied with Article 2 of the directive on wild birds.         in the cases of Urlaubs- und Lohnausgleichskasse der Bau-
                                                                    wirtschaft against Duarte dos Santos Sousa (C-68/98),
                                                                    Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
    Article 4 of the directive on wild birds does not               against Santos & Kewitz ConstrucËoÄes Lda (C-69/98),
    contain any provision of the same kind as that in               Portugaia ConstrucËoÄes Lda against Urlaubs- und Lohnaus-
    Article 2 which makes it possible to take account,              gleichskasse der Bauwirtschaft (C-70/98) and Engil
    inter alia, of economic requirements. The Netherlands           Sociedade de ConstrucËaÄo Civil S.A. against Urlaubs- und
    Waddenzee, which is designated a special protection                   Lohnausgleichskasse der Bauwirtschaft (C-71/98)
    area for the purposes of the directive is a wet zone of                           (Cases C-68/98 to C-71/98)
    international importance for water birds, in respect of
    which the Netherlands therefore bears a particular                                        (98/C 166/05)
    responsibility. According to Article 4(1) the
    Netherlands is required to adopt special conservation           Reference has been made to the Court of Justice of the
    measures in respect of the species mentioned in                 European Communities by orders of the Arbeitsgericht
    Annex I in order to ensure the survival and                     (Labour Court), Wiesbaden, of 27 February 1998,
    reproduction of those species. Certain birds mentioned          received at the Court Registry on 13 March 1998, for a
    in Annex I can be found in the Netherlands part of the          preliminary ruling in the cases of Urlaubs- und Lohnaus-
    Waddenzee and nest there. Similar measures must be              gleichskasse der Bauwirtschaft (Holiday and Wage
    taken for regularly occuring migratory species not              Equalisation Fund of the Construction Industry) against
    listed in Annex I as regards their breeding, moulting           Duarte dos Santos Sousa (C-68/98), Urlaubs- und Lohn-
    and wintering areas and staging posts along their               ausgleichskasse der Bauwirtschaft against Santos &
    migration routes. A number of species of migratory              Kewitz ConstrucËoÄes Lda (C-69/98), Portugaia ConstrucËoÄes
    birds regularly call in at the Netherlands part of the          Lda against Urlaubs- und Lohnausgleichskasse der Bau-
    Waddenzee. The Commission concludes from the                    wirtschaft (C-70/98) and Engil Sociedade de ConstrucËaÄo
    information available to it that the protective measures        Civil S.A. against Urlaubs- und Lohnausgleichskasse der
    adopted by the Netherlands authorities for the birds            Bauwirtschaft (C-71/98) on the following questions:


title: Case F-10/07: Action brought on 8 February 2007 — Botos v Commission

text:
               24.3.2007

               EN

               Official Journal of the European Union

               C 69/31

         Action brought on 8 February 2007 — Botos v Commission
   (Case F-10/07)
   (2007/C 69/63)
   Language of the case: French
   Parties

      Applicant: Patricia Botos (Meise, Belgium) (represented by: L. Vogel, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision adopted by the Appointing Authority on 30 October 2006, by which it dismissed the complaint brought by the applicant on 24 April 2006 against the six following administrative decisions: (i) decision adopted on 23 January 2006 by the Office for the Administration and Payment of Individual Entitlements; (ii) decision adopted on 23 January 2006 by the Head of the Brussels Payment Office of the Joint sickness insurance scheme; (iii) decision adopted on 9 February 2006 by the Office for the Administration and Payment of Individual Entitlements; (iv) decision adopted on 9 February 2006 by the Head of the Brussels Payment Office of the Joint sickness insurance scheme; (v) decision adopted on 20 February 2006 by the Head of the Brussels Payment Office of the Joint sickness insurance scheme; (vi) breakdown of the reimbursement of the medical expenses drawn up by the Brussels Payment Office of the Joint sickness insurance scheme, dated 23 February 2006;

               —

               in so far as necessary, annul also the six aforementioned decisions;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant puts forward a sole plea in law in support of her action, alleging infringement of Article 72 of the Staff Regulations and a manifest error of assessment. She maintains that, by the contested decisions, the Appointing Authority incorrectly refused to recognise that the ‘chronic fatigue syndrome ’of which she suffers is a serious illness for the purposes of the aforementioned article and, consequently, to reimburse the expenses relating to laboratory tests and medication relating to that illness. A number of documents, including an in-depth medical study, demonstrate the seriousness of the illness in question and the need to provide 100 % reimbursement, without limitation or restriction, for the costs of medication and tests which the applicant declares she needed.


title: Case C-329/14: Action brought on 7 July 2014  — European Commission v Republic of Finland

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/21

         Action brought on 7 July 2014 — European Commission v Republic of Finland
   (Case C-329/14)
   2014/C 292/26
   Language of the case: Finnish

      Parties

      Applicant: European Commission (represented by: P. Hetsch, K. Hermann and I. Koskinen, acting as Agents)

      Defendant: Republic of Finland

      Form of order sought

               —

               declare that, the Republic of Finland has failed to fulfil its obligations under Article 28(1) of Directive 2010/31/EU (1) of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings, because it has failed to adopt the laws, regulations and administrative measures necessary to transpose Article 2(2) and Article 9(1) into national law or, in any event, to inform the Commission of those measures either as regards mainland Finland and with regard to the Åland Islands it has failed to adopt the laws, regulations and administrative measures necessary to transpose Article 2(2) and Article 9(1) into national law or, in any event, to inform the Commission of those measures;

               —

               order the Republic of Finland, on the basis of Article 260(3) TFEU to pay a fine of EUR 19  178,25 per day from the date of delivery of the judgment of the Court of Justice to be paid to the European Union’s own resources account, on the ground that it has failed to fulfil its obligation to indicate the measures by which the directive will be transposed into national law.

               —

               order the Republic of Finland to pay the costs.

      Pleas in law and main arguments

   The period within which to transpose the Directive expired on 9 July 2012.

      (1)  OJ 2010 L 153, p. 13.


title: Case T-344/12: Action brought on 1 August 2012 — Virgin Atlantic Airways v Commission

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/29

         Action brought on 1 August 2012 — Virgin Atlantic Airways v Commission
   (Case T-344/12)
   2012/C 295/52
   Language of the case: English

      Parties

      Applicant: Virgin Atlantic Airways Ltd (Crawley, United Kingdom) (represented by: N. Green, QC and K. Dietzel, Solicitor)

      Defendant: European Commission

      Form of order sought

               —

               Order the annulment of the decision of the European Commission of 30 March 2012 in Case COMP/M.6447 (IAG/bmi); and

               —

               Order the defendant to pay the applicant’s costs in these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the defendant has committed an error of law by not taking into account relevant information regarding the competitive conditions that would prevail absent the acquisition, allowing the Commission to appraise the acquisition against a less competitive situation than would have been the case. In particular, the Commission erred in its treatment of: (i) the package of slots sold by bmi to IAG/British Airways in September 2011; and (ii) the bmi slots over which IAG/British Airways took security in return for a pre-payment of £60m of the purchase price for bmi.

               2.

               Second plea in law, alleging that the defendant has made a series of material errors and failed to take into account relevant information in relation to the assessment of the impact of the acquisition on the incremental increase in slots (and market power) held by IAG at London Heathrow post-acquisition.

               3.

               Third plea in law, alleging that the defendant made a series of errors and failed to take into account relevant information in failing to identify or in dismissing further horizontal affected markets.

               4.

               Fourth plea in law, alleging that the Commission has committed an error of law by: (i) failing to undertake a Phase II investigation; and (ii) accepting commitments which fail to address the serious doubts found by the Commission to exist.

               5.

               Fifth plea in law, alleging that the defendant has committed an error of law in incorrectly characterising the legal relationship between IAG and each of Iberia and British Airways as falling within Article 5(4) of the EU Merger Regulation (1), allowing it to conclude that the acquisition was a concentration with a ‘Community dimension’ for the purposes of Article 1 of the said regulation and to conclude that it had jurisdiction to review the acquisition. The decision is therefore ultra vires.

      (1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, p. 1).


title: Case T-277/14: Order of the General Court of 10 December 2014  — Mabrouk v Council (Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Freezing of funds — Action for failure to act — Request for access to the evidence used by the Council against a natural person affected by those measures — Access granted by the Council — Action becoming devoid of purpose — No need to adjudicate)

text:
               16.2.2015

               EN

               Official Journal of the European Union

               C 56/20

         Order of the General Court of 10 December 2014 — Mabrouk v Council
   (Case T-277/14) (1)

   ((Common foreign and security policy - Restrictive measures directed against certain persons and entities in view of the situation in Tunisia - Freezing of funds - Action for failure to act - Request for access to the evidence used by the Council against a natural person affected by those measures - Access granted by the Council - Action becoming devoid of purpose - No need to adjudicate))
   (2015/C 056/28)
   Language of the case: English

      Parties

      Applicant: Mohamed Marouen Ben Ali Ben Mohamed Mabrouk (Tunis, Tunisia) (represented by: J.-R. Farthouat, J.-P. Mignard, N. Boulay, lawyers and S. Crosby, Solicitor)

      Defendant: Council of the European Union (represented by: A. De Elera and G. Étienne, acting as Agents)

      Re:

   Action seeking a declaration of a failure to act on the part of the Council in that it unlawfully failed to act upon the applicant’s request for access to the file containing the evidence on which the Council relied in ordering the freezing of his assets in the European Union.

      Operative part of the order

               1.

               There is no need to adjudicate on the action.

               2.

               The Council of the European Union shall pay the costs.

      (1)  OJ C 194, 24.6.2014.


title: References for preliminary rulings by the Tribunal Económico-Administrativo Regional de Cataluña by orders of that court of 19 December 1997 in Cases C-110/98 to C-115/98, C-117/98, C-120/98 and C-125/98 to C-146/98, of 30 January 1998 in Cases C-121/98 to C-124/98 and C-147/98 and of 25 February 1998 in Cases C-116/98, C-118/98 to C-119/98, Gabalfrisa S.A. and Others v. Administración Estatal de la Agencia Tributaria (A.E.A.T.) (Cases C-110/98 to C-147/98)

text:
C 209/20              EN                 Official Journal of the European Communities                                     4.7.98
Reference for a preliminary ruling by the Tribunale                      companies for the management of local public
Amministrativo Regionale per Emilia-Romagna, Parma                       services, within the meaning of 4(6) of Law No 95 of
Division, by order of that court of 10 March 1998 in the                 29 March 1995 (converting into law, with
case of Teckal Srl against Municipality of Viano (Reggio                 amendments, Decree-Law No 26 of 31 January
Emilia) and AGAC Ð Azienda Gas-Acqua Consorziale di                      1995), even where that participation purports to be
                        Reggio Emilia                                    for the purpose of promoting employment or the re-
                       (Case C-107/98)                                   employment of workers' already assigned to the
                                                                         service the management of which is at issue, having
                        (98/C 209/38)                                    regard to Article 5 of Law No 184 of 22 March 1971
                                                                         establishing GEPI SpA, which gives GEPI the same
Reference has been made to the Court of Justice of the                   task of contributing to the maintenance and growth
European Communities by an order of the Parma Division                   of employment levels facing temporary difficulties,
of the Tribunale Amministrativo Regionale per Emilia-                    such as to demonstrate the specific possibility of
Romagna (Regional Administrative Court for Emilia-                       reorganising the undertakings concerned', in the
Romagna) of 10 March 1998, which was received at the                     manner set out therein;
Court Registry on 14 April 1998, for a preliminary ruling
in the case of Teckal Srl against Municipality of Viano             (b) whether, on the basis of the abovementioned
(Reggio Emilia) and AGAC Ð Azienda Gas-Aqua                              legislation governing GEPI SpA (later Italinvest SpA)
Consorziale di Reggio Emilia, on the following question:                 there may be applicable to this case the derogation
                                                                         provided for in Article 90(2) of the Treaty according
Whether the award by a Municipality of the contract for                  to which undertakings entrusted with the operation
the management of the heating installations of certain                   of services of general economic interest . . . shall be
municipal buildings to a consortium of municipalities                    subject to the rules contained in this Treaty, in
constitutes a case of direct award of contract of the kind               particular to the rules on competition, in so far as the
referred to in Article 6 of Council Directive 92/50/EEC (1)              application of those rules does not obstruct the
and whether the legislative provisions and regulations                   performance in law or in fact, of the particular tasks
which provide for that award of contract are compatible                  assigned to them'.
with the provisions of the Treaty.
(1) OJ L 209, 24.7.1992, p. 1.
                                                                    References for preliminary rulings by the Tribunal
                                                                    Económico-Administrativo Regional de CatalunÄa by
                                                                    orders of that court of 19 December 1997 in Cases
                                                                    C-110/98 to C-115/98, C-117/98, C-120/98 and C-125/
Reference for a preliminary ruling by the Tribunale                 98 to C-146/98, of 30 January 1998 in Cases C-121/98 to
Amministrativo Regionale della Campania (Naples) by                 C-124/98 and C-147/98 and of 25 February 1998 in
order of that court of 19 November/11 December 1997 in              Cases C-116/98, C-118/98 to C-119/98, Gabalfrisa S.A.
the case of RI.SAN Srl against Municipality of Ischia and           and Others v. Administración Estatal de la Agencia
GEPI SpA Ð now called Italia Investimenti SpA (Italinvest                               Tributaria (A.E.A.T.)
                               SpA)
                                                                                (Cases C-110/98 to C-147/98)
                       (Case C-108/98)
                                                                                (98/C 209/40)
                        (98/C 209/39)
                                                                    References have been made to the Court of Justice of the
Reference has been made to the Court of Justice of the              European Communities by orders (all received at the
European Communities by an order of the Tribunale                   Court Registry on 14 April 1998) of the Tribunal
Amministrativo Regionale della Campagna (Regional                   Económico-Administrativo        Regional    de     CatalunÄa
Administrative Court for la Campania) (Naples), of                  (Regional Economic and Administrative Court, Catalonia)
19 November/11 December 1997, which was received at                 of 19 December 1997, for a preliminary ruling in the cases
the Court Registry on 9 April 1998, for a preliminary               of (C-110/98) Gabalfrisa S.A. (Rec. 08/19095/95), (C-111/
ruling in the case of RI.SAN Srl against Municipality of            98) Marcelino Martín Almeida (Rec. 08/6419/96), (C-112/
Ischia and GEPI SpA Ð now called Italia Investimenti                98) Tarragona 161, S.A. (Rec. 08/6187/96), (C-113/98)
SpA (Italinvest SpA), on the following questions:                   Nova Ametlla, S.L. (Rec. 95/97), (C-114/98) Habitats del
                                                                    Golf, S.A. (Rec. 08/1344/97), (C-115/98) Habitats del
(a) whether the provisions of Article 55 of the Treaty              Golf, S.A. (Rec. 08/1345/97), (C-117/98) Pascual García
     (which is applicable inter alia to the services sector         García (Rec. 08/11067/96), (C-120/98) Gran Vía
     by virtue of the reference in Article 66 of the Treaty),       Zaragoza, S.A. (Rec. ac. 08/11917 and 08/3564/97),
     pursuant to which the provisions of this Chapter              (C-125/98) PlaÂcida JimeÂnez, S.L. (Rec. 08/10022/96),
     shall not apply, so far as any given Member State is           (C-126/98) HidroeleÂctrica de Rueda, S.L. (Rec. ac. 08/
     concerned, to activities which in that State are               9778/96 and 08/10347/96), (C-127/98) Arus Vilasar, S.L.
     connected, even occasionally, with the exercise of             (Rec. ac. 08/8539/96 and 08/10684/96), (C-128/98)
     official authority', must be interpreted so widely as to       Crisbachs Coloma, S.L. (Rec. 08/6417/96), (C-129/98)
     include the activities of GEPI SpA (later Italinvest           Minulis-2, C.B. (Rec. ac. 08/3923/96 and 08/5553/96),
     SpA) as a participant in local authorities' mixed              (C-130/98) Agrupación EnergeÂtica Hospital General de
 ---pagebreak--- 4.7.98              EN                   Official Journal of the European Communities                                   C 209/21
Granollers A.I.E. (Rec. 08/3276/96 and 08/3277/96),                 E and the Economic and Social Committee was brought
(C-131/98) Alfonso Crespo Recasens (Rec. 08/1826/96),               before the Court of Justice of the European Communities
(C-132/98) JesuÂs Corral García (Rec. 08/11628/95),                 on 17 April 1998 by the Economic and Social Committee,
(C-133/98) Atlansport, S.L. (Rec. 2.181/96), (C-134/98)             represented by MoiseÂs Bermejo Garde, acting as Agent,
Golden Meetings, S.A. (Rec. 08/2328/97) (C-135/98)                  with an address for service in Luxembourg at the office of
Algavame, S.A. (Rec. 08/2249/97), (C-136/98) Tarragona              Carlos GomeÂz de la Cruz, Commission of the European
161. S.A. (Rec. 08/994/97), (C-137/98) Gesba, S.A. (Rec.            Communities, Wagner Centre.
08/940/97), (C-138/98) Estació de Servei El Trevol S.L.
(Rec. 08/805/97), (C-139/98) Viladases, S.L. (Rec. 08/              The appellant claims that the Court should:
12845/96), (C-140/98) Francisca Quesada Cobo (Rec. 08/
7575/94), (C-141/98) Niteo, S.L. (Rec. 25/1110/96),                 Ð    set aside the judgment delivered by the Court of First
(C-142/98) Inmobiliaria Vilassarenca, S.A. (Rec. 08/2365/                Instance on 17 February 1998 in Case T-183/96 (1),
97), (C-143/98) Covives CB (Rec. 43/530/96), (C-144/98)
Cable I Televisión de Catalunya, S.A. (Rec. 10.349/96),             Ð    itself definitively determine the dispute by:
(C-145/98) Inmobiliaria Moragas, S.A. (Rec. 10.348/96),
(C-146/98) Comunidad de propietarios del Complejo                        Ð upholding the submissions advanced by the
Urbanístico de las Calles Estudiantes, Brosa y Casas i                        Economic and Social Committee in the
Amigo de Barcelona (Rec. 15.158/94), of 30 January 1998                       proceedings at first instance contending that E's
in the cases of (C-121/98) Sanyo Energy Spain Corporate,                      application should be dismissed in its entirety,
S.A. (Rec. 08/762/97), (C-122/98) Golf de Viladecans,
S.A. (Rec. ac. 08/3301/97 and 08/3302/97), (C-123/98)                    Ð ordering the parties to bear their own costs.
Savigi    89,    S.A.    (Rec.     08/665/97),     (C-124/98)
Explotaciones la Sota, S.L. (Rec. 08/960/97) and (C-147/            Pleas in law and main arguments adduced in support:
98) Bungy Fun Germany, GBDR (Rec. 43/1047/95), and
of 25 February 1998 in the cases of (C-116/98) Gran Vía             Erroneous assessment of the legal nature of the facts and
Zaragoza, S.A. (Rec. ac. 08/10942/96 and 08/11959/96),              misinterpretation of Articles 12 and 21 of the Staff
(C-118/98) Gran Vía Zaragoza, S.A. (Rec. ac. 08/10944/              Regulations of officials of the European Communities: in
96 and 08/11961/96) and (C-119/98) Gran Vía Zaragoza,               the Economic and Social Committee's view, the words
S.A. (Rec. ac. 08/10943 y 08/11960) v. Administración               used by E, and the tone in which they were expressed, as
Estatal de la Agencia Tributaria, on the following                  sanctioned in the contested decision, cannot be
question:                                                           characterised in law as merely discourteous Ð as they
                                                                    were by the Court of First Instance Ð but must be
With respect to the VAT paid by a taxable person liable             regarded as an extremely serious act amounting to a
thereto before he starts regularly carrying out taxable             failure to respect the law applicable to the public service.
transactions, may the terms in which the right to deduct
VAT is defined in Article 17 of the Sixth Council Directive         Failure to state the grounds of the judgment and
77/388/EEC of 17 May 1977 be interpreted as meaning                 misinterpretation of Articles 86 and 87 of the Staff
that the exercise of that right may be made conditional,            Regulations of officials: the finding by the Court of First
with a view to avoiding fraud, upon the fulfilment of               Instance that the disciplinary measure was manifestly
certain requirements such as the submission of an express           disproportionate was based solely on the actual conduct
request before the tax concerned becomes due and                    specifically complained of, and failed to take account of
commencement of taxable transactions on a regular basis             the other circumstances of the case, that is to say, it failed
within a specified time-limit reckoned from the date of             to attach any weight in the proceedings to the other
that request, the penalty for infringement of those                 circumstances prevailing.
requirements being forfeiture of the right to deduct or, at
least, deferment of its availability until the time at which        Incorrect application of the principle of proportionality
taxable transactions begin to be carried out on a regular           and misinterpretation of Articles 12 and 21 of the Staff
basis?                                                              Regulations of officials.
                                                                    (1) OJ C 94, 28.3.1998, p. 22.
Appeal brought on 17 April 1998 by the Economic and
Social Committee against the judgment delivered on
17 February 1998 by the Third Chamber of the Court of               Appeal brought on 17 April 1998 by Pharos SA against
First Instance of the European Communities in Case                  the judgment delivered on 17 February 1998 by the Third
T-183/96 between E and the Economic and Social                      Chamber of the Court of First Instance of the European
                         Committee                                  Communities in Case T-105/96 between Pharos SA and
                     (Case C-150/98 P)                                       Commission of the European Communities
                                                                                (Case C-151/98 P)
                       (98/C 209/41)
                                                                                (98/C 209/42)
An appeal against the judgment delivered on 17 February
1998 by the Third Chamber of the Court of First Instance            An appeal against the judgment delivered on 17 February
of the European Communities in Case T-183/96 between                1998 by the Third Chamber of the Court of First Instance


title: Case C-209/02: Action brought on 4 June 2002 by the Commission of the European Communities against the Republic of Austria

text:
13.7.2002             EN                    Official Journal of the European Communities                                      C 169/27
     Under the case-law of the Court of Justice, given that                 On the basis that part-time employment exclusively or
     reduced working hours are tied to reduced pay can the                  mainly affected women, can the provisions under which
     rule at issue be interpreted as automatically constituting             part-time employment is entirely excluded (until 1 Janu-
     direct discrimination on grounds of sex, since it immedi-              ary 1996) or taken into account in proportion to full-
     ately and directly ties part-time employment to the sex of             time employment (from 1 January 1996) be interpreted,
     the (female) employees and thus places only women at a                 in the light also of the case-law of the Court of Justice, as
     disadvantage?                                                          introducing indirect discrimination on grounds of sex
                                                                            prohibited under the rules of Community law and,
                                                                            consequently, should the entire period of part-time
                                                                            employment be added to their length of service?
2.   Does the exclusion of temporary part-time cleaners                5.   If the Court of Justice answers Questions 1 to 4 in the
     employed for an indefinite duration from the benefits of               affirmative, in the sense that the contested rules and
     the specific collective agreement of 2 November 1987                   provisions of collective agreements in fact contravene
     between OTE and the Omospondia Ergazomenon OTE                         Community law, who bears the burden of proof when
     (OTE Workers’ Federation) with regard to their incorpor-               employees plead that the principle of equal treatment has
     ation within the regular staff (and indeed irrespective of             been infringed to their detriment?
     the duration of the part-time employment contract), as in
     the present case, on the ground that that specific collective
     agreement required at least two years’ full-time service
     infringe Article 119 of the EEC Treaty and the abovemen-
     tioned directives or another rule of Community law,
     as indirect discrimination on grounds of sex, on the
     assumption that those rules (notwithstanding their osten-
     sibly neutral character since no link is made to the
     employees’ sex) excepted exclusively female cleaners,
     because no men worked part-time under a contract of
     indefinite duration either in the General Services Sector         Action brought on 4 June 2002 by the Commission of the
     (to which cleaners belong) or in any other OTE staff                European Communities against the Republic of Austria
     sector?
                                                                                (Case C-209/02)
                                                                                (2002/C 169/48)
3.   When applying the specific collective agreement of
     10 May 1991 between OTE and the OTE Workers’
     Federation, OTE required temporary staff who were to
     become (probationary) members of the regular staff to
     have a contract of indefinite duration and to be employed         An action against the Republic of Austria was brought before
     full-time.                                                        the Court of Justice of the European Communities on 4 June
                                                                       2002 by the Commission of the European Communities,
                                                                       represented by Josef Christian Schieferer, of its Legal Service,
                                                                       with an address for service in Luxembourg at the office of Luis
     Does the exclusion of part-time cleaners (irrespective of         Escobar Guerrero, of its Legal Service, Wagner Centre C 254,
     the duration of their contract), as in the present case,          Kirchberg.
     constitute impermissible, indirect discrimination on
     grounds of sex falling within provisions of Community
     law (Article 119 and Directives 75/117 and 76/207),
     given that the specific collective agreement excepted             The applicant claims that the Court should:
     exclusively female cleaners because no men worked part-
     time for an indefinite duration in any OTE staff sector?
                                                                       (a)  declare that, as a result of the fact that the proposed
                                                                            extension of the golf course in the municipality of
                                                                            Wörschach in Styria has been approved despite the
                                                                            negative results of the assessment of its impact on the
                                                                            natural habitat of the corncrake (Crex crex) in the special
4.   Under Article 5(9) of the General Staff Regulations                    protection area established there pursuant to Article 4 of
     of OTE, as in force until 1 January 1996, part-time                    Directive 79/409/EEC (1), the Republic of Austria has
     employment was not included at all when calculating                    failed to comply with its obligations under Article 6(3)
     length of service for the purpose of determining better                and (4) in conjunction with Article 7 of Council Directive
     conditions of pay. Thereafter, from 1 January 1996, that               92/43/EEC of 21 May 1992 on the conservation of
     provision was amended by a specific collective agreement               natural habitats and of wild fauna and flora (2);
     and it was laid down that part-time employment is
     regarded as equivalent to half of an equal period of full-
     time employment.                                                  (b) order the Republic of Austria to pay the costs.
 ---pagebreak--- C 169/28               EN                     Official Journal of the European Communities                                   13.7.2002
Pleas in law and main arguments                                          43/EEC were fulfilled. However, that possibility was not in any
                                                                         way taken into account by the competent authority.
In the context of the procedure for the approval of the planned
extension to the golf course in the municipality of Wörschach            (1) OJ 1979 L 103, p. 1.
im Ennstal, the Styrian authority responsible for nature                 (2) OJ 1992 L 206, p. 7.
protection carried out an appraisal of the compatibility of that
project with the conservation objectives laid down for that
area. In the Commission’s view, the expert’s report carried out
by the Institute may be regarded as an assessment of the
implications for the site within the meaning of Article 6(3) of
Council Directive 92/43/EEC on the conservation of natural                      Removal from the register of Case C-479/01 (1)
habitats and of wild fauna and flora. The project in question
gave rise to a potentially grave risk to the only instance, within                                (2002/C 169/49)
the inner Alpine region, of the breeding of the corncrake, a
species of bird threatened with extinction worldwide, within
the special protection area located in the Ennstal in accordance
                                                                         By order of 17 April 2002 the President of the Court of Justice
with Article 4 of Council Directive 79/409/EEC on the
                                                                         of the European Communities ordered the removal from the
conservation of wild birds. On the basis of the results of the
                                                                         register of Case C-479/01: Commission of the European
assessment made of the implications for the site, the project
                                                                         Communities v Kingdom of Belgium.
should not have been approved pursuant to Article 6(3) of
Directive 92/43/EEC. Thus, it was capable of being approved
only if the criteria laid down by Article 6(4) of Directive 92/          (1) OJ C 84 of 6.4.2002.