title: Case C-338/99: Action brought on 10 September 1999 by the Commission of the European Communities against the Kingdom of Belgium

text:
30.10.1999             EN                   Official Journal of the European Communities                                         C 314/5
4. The Commission’s decision determines the element of aid             Action brought on 10 September 1999 by the Com-
     by applying the Community reference rate prevailing at            mission of the European Communities against the
     the date on which the grants of aid were disbursed. The                                 Kingdom of Belgium
     rate indicated by the Commission corresponds to that
     specified for the repayment of illegal aid in Communi-                                     (Case C-337/99)
     cation 97/C/273/03 from the Commission to the Member
     States.
                                                                                (1999/C 314/10)
     That rate cannot be applied retroactively to the period
     which elapsed between the point in time at which the aid          An action against the Kingdom of Belgium was brought
     was granted and the entry into force of the above                 before the Court of Justice of the European Communities on
     mentioned rules, since it is contrary to the principle of         10 September 1999 by the Commission of the European
     legal certainty and the principle of the protection of            Communities, represented by Barry Doherty, of its Legal
     legitimate expectations.                                          Service, acting as Agent, with an address for service in
                                                                       Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
                                                                       Centre, Kirchberg.
(1) OJ L 236 of 7.9.1999, p. 14.
(2) OJ L 177 of 1.7.1981, p. 31.
(3) OJ L 126 of 9.5.1989, p. 1.                                        The Commission of the European Communities claims that
                                                                       the Court should:
                                                                       1. declare that, by failing to adopt the laws, regulations and
                                                                           administrative measures necessary in order to comply with
                                                                           Article 4a(4) of Directive 90/388/EEC as amended by
                                                                           Directive 96/19/EC (1), alternatively by failing to communi-
Action brought on 7 September 1999 by the Commission                       cate the same to the Commission, the Kingdom of Belgium
of the European Communities against the French Republic                    has failed to fulfil its obligations under that directive and
                                                                           under the Treaty establishing the European Community;
                         (Case C-331/99)
                                                                       2. order the Kingdom of Belgium to pay the costs.
                         (1999/C 314/09)
                                                                       Pleas in law and main arguments
An action against the French Republic was brought before the
Court of Justice of the European Communities on 7 September            Article 249 EC (formerly Article 189 of the EC Treaty),
1999 by the Commission of the European Communities;                    according to which a directive is to be binding, as to the result
represented by Hans Støvlbaek, of its Legal Service, and Olivier       to be achieved, upon each Member State to which it is
Couvert-Castéra, a national civil servant on secondment to the         addressed, requires Member States to observe the time-limits
Legal Service, acting as Agents, with an address for service in        laid down in directives for their transposition. The time-limit
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner           in the present case expired on 11 January 1997 without the
Centre, Kirchberg.                                                     Kingdom of Belgium having brought into force the necessary
                                                                       provisions in order to comply with the directive referred to in
The applicant claims that the Court should:                            the Commission’s application.
— Declare that, by adopting and keeping in force of
     Article 1(f) of Decree No 77-469 of 28 April 1977, the            (1) OJ L 74 of 22.3.1996, p. 13.
     French Republic has failed to fulfil its obligations under
     Article 6(3) of Directive 76/768/EEC (1);
— Order the French Republic to pay the costs.
Pleas in law and main arguments
                                                                       Action brought on 10 September 1999 by the Com-
The list of items of information laid down in Article 6(1) of          mission of the European Communities against the
Directive 76/768/EEC is exhaustive, and therefore the Directive                              Kingdom of Belgium
does not permit national rules requiring information to be
given on the quality and quantity of the substances mentioned                                   (Case C-338/99)
on the packaging, in advertising or in the name of the cosmetic
products covered by the Directive.                                                              (1999/C 314/11)
(1) Council Directive 76/768/EEC of 27 July 1976 on the approxi-       An action against the Kingdom of Belgium was brought
    mation of the laws of the Member States relating to cosmetic       before the Court of Justice of the European Communities on
    products (OJ L 262 of 27 September 1976, p. 169), as amended,      10 September 1999 by the Commission of the European
    with regard to Article 6, by Council Directive 88/667/EEC of       Communities, represented by Léna Ström, Legal Adviser, and
    21 December 1988 (OJ L 382 of 31 December 1988, p. 46).
                                                                       Olivier Couvert-Castéra, of its Legal Service, acting as Agents,
                                                                       with an address for service in Luxembourg at the office of
                                                                       Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
 ---pagebreak--- C 314/6               EN                   Official Journal of the European Communities                                  30.10.1999
The Commission of the European Communities claims that                       Removal from the register of Case C-259/98 (1)
the Court should:
                                                                                (1999/C 314/13)
1. declare that, by failing to adopt the laws, regulations and
    administrative measures necessary in order to comply with         By order of 29 June 1999 the President of the Court of Justice
    Council Directive 94/67/EC of 16 December 1994 on the             of the European Communities has ordered the removal from
    incineration of hazardous waste (1), or in any event to           the register of Case C-259/98: Commission of the European
    communicate the same to the Commission, the Kingdom               Communities v Federal Republic of Germany.
    of Belgium has failed to fulfil its obligations under that
    directive;
                                                                      (1) OJ C 278 of 5.9.1998.
2. order the Kingdom of Belgium to pay the costs.
Pleas in law and main arguments
Article 249 EC (formerly Article 189 of the EC Treaty),
according to which a directive is to be binding, as to the result            Removal from the register of Case C-64/99 (1)
to be achieved, upon each Member State to which it is
addressed, requires Member States to observe the time-limits                                  (1999/C 314/14)
laid down in directives for their transposition. The time-limit
in the present case expired on 31 December 1996 without the           By order of 1 July 1999 the President of the Court of Justice of
Kingdom of Belgium having brought into force the necessary            the European Communities has ordered the removal from the
provisions in order to comply with the directive referred to in       register of Case C-64/99 (reference for a preliminary ruling
the Commission’s application.                                         from the High Court of Justice (England & Wales), Queen’s
                                                                      Bench Division (Commercial Court): Pace Airline Services Ltd
(1) OJ L 365 of 31.12.1994, p. 34.                                    v Aerotrans Luftfahrtagentur GmbH.
                                                                      (1) OJ C 121 of 1.5.1999.
       Removal from the register of Case C-182/96 (1)
                        (1999/C 314/12)                                      Removal from the register of Case C-406/95 (1)
By order of 22 June 1999 the President of the Court of Justice                                (1999/C 314/15)
of the European Communities has ordered the removal from
the register of Case C-182/96: Federal Republic of Germany v          By order of 8 July 1999 the President of the Sixth Chamber of
Commission of the European Communities.                               the Court of Justice of the European Communities has ordered
                                                                      the removal from the register of Case C-406/95: Italian
(1) OJ C 210 of 20.7.1996.                                            Republic v Commission of the European Communities.
                                                                      (1) OJ C 46 of 17.2.1996.


title: Action brought on 7 November 1995 by the French Republic against the European Parliament (Case C-345/95)

text:
30 . 12 . 95           EN                   Official Journal of the European Communities                                   No C 351 /7
so far as it unconditionally prohibits as from 1 June 1995 the               — which, since they are imposed exclusively on the
use of HCFCs in the fire-fighting sector, is valid .'                             vessel ( which is merely passively loaded and
                                                                                unloaded ), affect a subject other than those whose
(') OJ No L 333 , 22 . 12 . 1994 , p . 1 .                                        responsibility it is to carry out the necessary
                                                                                technical operations ( in this case SpA Porto Petroli
                                                                                di Genova and the laders/receivers of the product ),
                                                                                resulting in an inevitable discrepancy between the
                                                                                responsibility for any pollution and the bearing of
                                                                                the cost of the anti-pollution service,
Reference for a preliminary ruling from the Tribunale di
Genova, Sesta Sezione Civile, by order of that court of                      — which, given the nature of the product and/or its
12 October 1995 in the case of Diego Call & Figli srl v.                          existence, represent an unnecessary service for
             Servizi Ecologici Porto di Genova SpA                                vessels equipped with their own anti-pollution
                                                                                devices and systems adapted to the type of product
                         ( Case C-343/95 )
                                                                                to be loaded or unloaded,
                           ( 95/C 351 / 10
                                                                             — which impose on the vessel a charge, and an
Reference has been made to the Court of Justice of the                            associated extra cost, in addition to those provided
European Communities by an order of the Tribunale di                              for by the landing contract between the carrier and
Genova, Sesta Sezione Civile ( District Court, Genoa, Sixth                       the company operating the wharves, and have no
Civil Chamber ) of 12 October 1995 , which was received at                        practical connection with the subject-matter of the
the Court Registry on 30 October 1995 , for a preliminary                         contract .
ruling in the case of Diego Call &c Figli Sri v. Servizi Ecologici
Porto di Genova SpA on the following questions :                       ( C ) If, in the situations set out in questions ( A ) and ( B ),
                                                                             there are one or more practices amounting to abuse of a
( A ) Can there be said to exist a 'dominant position within                 dominant position by an undertaking for the purposes
      the common market or in a substantial part of it' where                of Article 86 of the Treaty , does this lead to a potential
      a limited company, set up by a national port authority,                adverse effect on trade between Member States of the
      is given responsibility for and does actually carry out,               Union ?
      pursuant to an administrative concession from that
      authority, the task of providing, with exclusive rights
      within a harbour sector specializing in loading and
      unloading petroleum products, an ' anti-pollution
      protection ' service, and where that company collects
      the relevant fee, which is set unilaterally by the port
      authority on the basis of the vessel 's tonnage and the          Action brought on 7 November 1995 by the French
      quantity of the product loaded or unloaded, from users                     Republic against the European Parliament
      of that service , that is to say vessels which dock at the                               ( Case C-345/95 )
      wharves to carry out those operations ?
                                                                                ( 95/C 351 / 11 )
( B ) Having regard to the situation set out in question ( A )
      and if there is a dominant position within the common            An action against the European Parliament was brought
      market or a substantial part of it, is there an abuse of         before the Court of Justice of the European Communities on
      the aforesaid 'dominant position' within the meaning             7 November 1995 by the French Republic, represented by
      of Article 86 of the EC Treaty, in particular of                 Marc Perrin de Brichambaut and Denys Wibaux, acting as
      subparagraphs ( a ), ( c ) and ( d ) and are there related       Agents, with an address for service in Luxembourg at the
      'practices ', when an undertaking holding the exclusive          French Embassy, 9 Boulevard du Prince Henri .
      concession for a service ( even though on the basis of a
      decision of the authority granting the concession )              The applicant claims that the Court should :
      charges fees :
                                                                       — declare null and void the Decision of the European
      — which are compulsory and independent of the                         Parliament of 20 September 1995 fixing the timetable of
           provision of an efficient surveillance and/or                    work for 1996 ,
           intervention service, merely because a vessel berths
           in a mooring in the Porto Petroli and loads/unloads         — order the defendant to pay the costs .
           goods, whether petroleum products or chemicals
           and petrochemicals, according to the contractual
           terms imposed,                                              Pleas in law and main arguments adduced in support:
      — the amount of which depends solely on the tonnage              — breach of the Decision taken by common agreement
           of the vessel, the amount of the product and also , in           between the Representatives of the Governments of the
           the event of any actual intervention, the duration               Member States on the location of the seats of the
           thereof, but not on the product's nature, quality or             institutions and of certain bodies and departments of the
           capacity to pollute,                                             European Communities, adopted in Edinburgh on
 ---pagebreak--- No C 351 /8              EN                     Official Journal of the European Communities                                       30 . 12 . 95
     12 December 1992 ( ): that Decision forms part of the                 2 . If question 1 is answered in the affirmative :
     primary law binding upon the Member States and on the
     institutions created by the Treaties . It constitutes a legal               ( a ) what period of accommodation can regularly by
     rule relating to the application of the Treaties,                                 regarded as short-term ?
     compliance with which is to be ensured by the Court. By
     deciding to hold eleven periods of plenary sessions in                            Is it no longer 'provision of accommodation in the
     Strasbourg and, in parallel, to fix at eight the number of                        hotel sector' if the operator keeps the rooms ready
     additional sessions in Brussels, the Parliament has failed                        for long-term accommodation and this finds
     to comply to the letter with the Edinburgh decision,                              expression in the conclusion of a long-term letting
     which imposed on it a binding obligation to hold 12                               agreement ( longer than six months )?
     plenary sessions in Strasbourg, the seat of the institution .
     Moreover, the contested decision does not respect the
     inherent balance of that decision and renders it                            ( h ) Is a tax exemption under Article 13 ( B ) ( b ) ( 1 ) for a
                                                                                proportion of the time possible if it transpires that
     nugatory ,                                                                        all the accommodation can be let on a short or
                                                                                long-term basis according to choice ?
— lack of competence : the European Parliament is obliged ,
     in the exercise of its powers to regulate its internal
     organization, to respect the competence of the Member                 3 . If question 1 is answered in the negative :
     States to fix the location of the seats of the institutions .
     To allow the European Parliament to hold additional
                                                                                On the basis of what temporal , spatial and
     plenary sessions in Strasbourg without first holding the                    conceptual criteria must the phrase 'provision of
     1 2 monthly sessions in Strasbourg would effectively call                   accommodation ... in the hotel sector or in sectors with
     in question the reality of the seat of the institution,                     a similar function ' be defined and which of them must
                                                                                necessarily be present ?
— breach of essential procedural requirements : the
     President of the European Parliament did not have the
     capacity to accept an amendment which is contrary to                  (') OJ No L 145 , p . 1 .
     the Decision adopted in Edinburgh .
      ( In the alternative :) A statement of reasons should have
     been given for the contested Decision , despite the
     absence of any express provision to that effect in the
     Treaties .
                                                                           Reference for a preliminary ruling by the Supremo Tribunal
(■) OJ No C 341 , 23 . 12 . 1992 , p . 1 .                                 Administrativo ( Second Chamber — Fiscal Matters ) by
                                                                           judgment of that court of 11 October 1995 in the case of
                                                                           Fazenda Publica against UCAL ( Uniao das Cooperativas
                                                                                Abastecedoras de Leite de Lisboa, UCRL )
                                                                                ( Case C-347/95 )
                                                                                ( 95./C 351 / 13 )
Reference for a preliminary ruling from the Finanzgericht
Miinchen by order of that court of 20 September 1995 in the                Reference has been made to the Court of Justice of the
         case of Elisabeth Blasi v. Finanzamt Miinchen I
                                                                           European Communities by judgment of the Supremo
                           ( Case C-346/95 )                               Tribunal Administrativo ( Supreme Administrative Court )
                              ( 95/C 351 / 12 )                             ( Second Chamber — Fiscal Matters ) of 11 October 1995 ,
                                                                           which was received at the Court Registry on 1 3 November
                                                                            1 995 , for a preliminary ruling in the case of Fazenda Publica
Reference has been made to the Court of Justice of the                      against UCAL (Uniao das Cooperativas Abastecedoras de
European Communities by an order of the Third Senate of                     Leite de Lisboa , UCRL ) on the following questions :
the Finanzgericht Miinchen ( Munich Finance Court ) of
20 September 1995 , which was received at the Court
Registry on 9 November 1995 , for a preliminary ruling in                   1 . are the 'charges ' described, which have the
the case of Elisabeth Blasi v. Finanzamt Miinchen I on the                         characteristics of taxes described above ('), contrary to
 following questions :                                                             Article 95 of the Treaty of Rome ?
 1 . Is Article 13 ( B ) ( b ) ( 1 ) of Council Directive 77/388/EEC        2 . Are they to be regarded as charges having an effect
        of 1 7 May 1 977 on the harmonization of the laws of the                   equivalent to a customs duty on imports, prohibited by
        Member States relating to turnover taxes ( Sixth VAT                       Articles 9 and 12 of that Treaty ?
        Directive ) (') to be interpreted as meaning that the
        provision of accommodation ... in the hotel sector or in
        sectors with a similar function consists solely in the               3 . Are they to be regarded as turnover tax within the
        short-term accommodation of guests ?                                       meaning fo Article 33 of the Sixth Directive ( 2 ), without


title: Case T-313/15: Action brought on 12 June 2015 — Italy v Commission

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/35

         Action brought on 12 June 2015 — Italy v Commission
   (Case T-313/15)
   (2015/C 262/47)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato, and G. Palmieri, acting as Agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the notice of Competition EPSO/AD/301/15 — Administrators (AD 5);

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The pleas in law and main arguments are those relied on in Case T-17/15 Italy v Commission (OJ 2015 C 81, p. 27).


title: Case C-295/03 P: Appeal brought on 2 July 2003 by Alessandrini Srl and Others against the judgment delivered on 10 April 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Joined Cases T-93/00 and T-46/01 between Alessandrini Srl and Others and the Commission of the European Communities

text:
6.9.2003                 EN                        Official Journal of the European Union                                         C 213/19
Action brought on 7 July 2003 by the Commission of the                     In accordance with Article 228 (2) of the EC Treaty, the
            European Communities against Ireland                           Commission asks the Court to impose a penalty payment of
                                                                           EUR 21 600 on Ireland for each day’s delay in implementing
                                                                           the Court’s judgment in Case C-392/96, beginning from the
                           (Case C-294/03)                                 day on which the Court gives its judgment in the present case.
                           (2003/C 213/32)                                 (1 ) OJ L 175, 05.07.1985, p. 40.
An action against Ireland was brought before the Court of
Justice of the European Communities on 7 July 2003 by the
Commission of the European Communities, represented by
Xavier Lewis and Florence Simonetti, acting as agents, with an
address for service in Luxembourg.
                                                                           Appeal brought on 2 July 2003 by Alessandrini Srl and
                                                                           Others against the judgment delivered on 10 April 2003
The Applicant claims that the Court should:                                by the Fifth Chamber of the Court of First Instance of the
                                                                           European Communities in Joined Cases T-93/00 and
                                                                           T-46/01 between Alessandrini Srl and Others and the
1)    Declare that, by failing to adopt the laws, regulations                        Commission of the European Communities
      or administrative provisions necessary to comply with
      Article 4 (2) of Council Directive 85/337/EEC of 27 June
      1985 on the assessment of the effects of certain public                                      (Case C-295/03 P)
      and private projects on the environment (1) in respect of
      peat extraction projects or, in any event, by failing to
      notify such provisions to the Commission, Ireland has
                                                                                (2003/C 213/33)
      not implemented all the measures necessary to comply
      with the judgment of the Court of 21 September 1999 in
      Case C-392/96 Commission v. Ireland and has failed to
      fully fulfil its obligations under Article 228 of the Treaty;
                                                                           An appeal against the judgment delivered on 10 April 2003
2)    Order Ireland to pay to the Commission of the European               by the Fifth Chamber of the Court of First Instance of the
      Communities, into the account EC own resources, a                    European Communities in Joined Cases T-93/00 and T-46/01
      penalty payment of EUR 21 600 for each day of delay in               between Alessandrini Srl and Others and the Commission of
      implementing the measures necessary to comply with                   the European Communities was brought before the Court of
      the judgment in Case C-392/96, from delivery of the                  Justice of the European Communities on 2 July 2003 by
      judgment in these proceedings until judgment in Case                 Alessandrini Srl and Others, represented by W. Viscardini and
      C-392/96 has been complied with,                                     G. Donà.
3)    Order Ireland to pay the costs.
                                                                           The appellants claim that the Court should:
                                                                           1.    set aside the judgment of the Court of First Instance of
                                                                                10 April 2003 in Joined Cases T-93/00 and T-46/01 as
Pleas in law and main arguments
                                                                                to that part which deals with the application for damages;
                                                                           2.    order the Commission to pay the appellants damages for
This application concerns the failure by Ireland to comply                       the losses sustained as a result of the Commission’s failure
with the judgment of 21 September 1999 in Case C-392/96                          to grant certificates for the import of bananas from non-
in so far as Ireland has taken inadequate measures since that                    member countries, in the sum quantified in para-
judgment to ensure that Irish legislation complies with Council                  graph 114-A of the pleading, totalling LIT 370 983 900
Directive 85/337/EEC of 27 June 1985 on the assessment of                        (EUR 191 597,20) together with currency re-valuation
the effects of certain public and private projects (‘the Directive’)             and interest, and
in respect of peat extraction projects covered by point 2(a) of
Annex II of that Directive. Although Ireland has taken some
measures in an effort to execute the judgment, they remain                 3.    order the Commission to reimburse the appellants their
inadequate in theory and have not been implemented in                            costs of the proceedings both at first instance and on
practice.                                                                        appeal.
 ---pagebreak--- C 213/20               EN                     Official Journal of the European Union                                          6.9.2003
Pleas in law and main arguments                                       2003 by the Commission of the European Communities,
                                                                      represented by M. van Beek and G. Valero Jordana, acting as
The appellants plead that the Court erred in finding that the         Agents, with an address for service in Luxembourg.
damage which they alleged arose from the fact of not
managing to import ACP bananas. In truth, the appellants
were complaining that in 1999 and 2000 they had not                   The applicant claims that the Court should:
obtained certificates to import bananas from non-member
countries despite their right to do so under their reference          1.    declare that, by failing to bring into force the laws,
quantity based exclusively on imports of bananas from non-                  regulations and administrative provisions needed in order
member countries. The appellants submit that the Court failed               to comply with Council Directive 1999/22/EC (1) relating
to take account of their arguments in support of their                      to the keeping of wild animals in zoos or, in any event,
application for damages.                                                    by failing to have informed the Commission of any
                                                                            such laws, regulations or administrative provisions, the
                                                                            Kingdom of Spain has failed to fulfil its obligations under
                                                                            that Directive;
                                                                      2.    order the Kingdom of Spain to pay the costs.
Reference for a preliminary ruling by the Conseil d’État,
Section d’Administration by judgment of that Court of
27 June 2003 in the case of Société Anonyme Glaxo-
                SmithKline against Belgian State
                                                                      Pleas in law and main arguments
                         (Case C-296/03)
                                                                      The period within which the directive was to be incorporated
                         (2003/C 213/34)
                                                                      into national law expired on 9 April 2002.
Reference has been made to the Court of Justice of the                (1 ) OJ L 94 of 9.4.1999, p. 24.
European Communities by judgment of the Conseil d’État,
Section d’Administration (Council of State, Administrative
Section) of 27 June 2003, received at the Court Registry on
8 July 2003, for a preliminary ruling in the case of Société
Anonyme GlaxoSmithKline against Belgian State on the fol-
lowing question:
Must the time-limit of 90 days, which may be extended for a
further 90 days, referred to in the first subparagraph of             Action brought on 14 July 2003 by the Commission of
Article 6(1) of Council Directive 89/105/EEC of 21 December             the European Communities against the Italian Republic
1988 relating to the transparency of measures regulating the
prices of medicinal products for human use and their inclusion
in the scope of national health insurance systems (1) be                                        (Case C-302/03)
considered to be a strict time-limit precluding, upon expiry,
the adoption of any decision, even where an initial decision
                                                                                (2003/C 213/36)
adopted timeously has been annulled?
( 1) OJ L 40 of 11.02.1989, p. 8.
                                                                      An action against the Italian Republic was brought before the
                                                                      Court of Justice of the European Communities on 14 July
                                                                      2003 by the Commission of the European Communities,
                                                                      represented by M. Van Beek and R. Amorosi, acting as Agents.
Action brought on 10 July 2003 by the Commission of
the European Communities against the Kingdom of Spain                 The applicant claims that the Court should:
                         (Case C-298/03)
                                                                      —     find that, by failing to adopt the laws, regulations
                                                                            and administrative provisions necessary to comply with
                         (2003/C 213/35)                                    Council Directive 1999/22/EC (1) of 29 March 1999
                                                                            relating to the keeping of wild animals in zoos or, in any
                                                                            event, by failing to communicate the same to the
An action against the Kingdom of Spain was brought before                   Commission the Italian Republic has failed to fulfil its
the Court of Justice of the European Communities on 10 July                 obligations under Article 9 of that directive;


title: Case C-285/11: Judgment of the Court (Third Chamber) of 6 December 2012 (reference for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — BONIK (EOOD) v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (VAT — Directive 2006/112/EC — Right of deduction — Refusal)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/10

         Judgment of the Court (Third Chamber) of 6 December 2012 (reference for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — BONIK (EOOD) v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
   (Case C-285/11) (1)

   (VAT - Directive 2006/112/EC - Right of deduction - Refusal)
   2013/C 26/17
   Language of the case: Bulgarian

      Referring court

   Administrativen sad — Varna

      Parties to the main proceedings

      Applicant: BONIK (EOOD)

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

      Re:

   Reference for a preliminary ruling — Administrativen sad — Varna — Interpretation of Articles 14, 62, 63, 167, 168 and 178(a) and (b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Formalities laid down by Member States in relation to the right to deduct VAT — Measures taken to prevent certain forms of tax evasion or avoidance — Refusal of the right to deduct VAT in the case of a taxable person in receipt of intra-Community supplies, on the ground that there was no evidence that supplies of goods had actually been carried out as between the preceding suppliers, despite the existence of evidence establishing that supplies of goods had been carried out by the last supplier direct to the taxable person

      Operative part of the judgment

   Articles 2, 9, 14, 62, 63, 167, 168 and 178 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the case before the referring court, a taxable person may not be refused the right to deduct VAT in relation to a supply of goods on the ground that, in view of fraud or irregularities committed upstream or downstream of that supply, the supply is considered not to have actually taken place, where it has not been established on the basis of objective evidence that the taxable person knew, or should have known, that the transaction relied on as a basis for the right of deduction was connected with VAT fraud committed upstream or downstream in the chain of supply — a matter which it is for the referring court to determine.

      (1)  OJ C 238, 13.8.2011.


title: Case C-88/12: Order of the President of the Court of 14 September 2012 — (reference for a preliminary ruling from the Rechtbank Roermond — Netherlands) — Criminal proceedings against Jibril Jaoo

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/20

         Order of the President of the Court of 14 September 2012 — (reference for a preliminary ruling from the Rechtbank Roermond — Netherlands) — Criminal proceedings against Jibril Jaoo
   (Case C-88/12) (1)

   2012/C 379/34
   Language of the case: Dutch
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 126, 28.4.2012.


title: Reference for a preliminary ruling from the Finanzgericht Köln by order of that court of 30 June 1997 in the case of Compagnie de Saint-Gobain, German branch v. Finanzamt Aachen-Innenstadt (Case C-307/97)

text:
18 . 10 . 97                 I EN                  Official Journal of the European Communities                                  C 318/ 11
Reference for a preliminary ruling by the High Court                          2 . Is it compatible with the applicable Community law,
of Ireland, by order of that court dated 29 May 1997, in                           and in particular with Articles 52 and 58 of the EC
the case of Connemara Machine Turf Company against                                 Treaty, read together, for the tax levied in a non
                                Coillte Teoranta                                   member State on the profits of a subsidiary in that
                                ( Case C-306/97)                                   State of a branch establishment in Germany of a
                                                                                company having its seat in another Member State not
                                  ( 97/C 318/19 )                                  to be credited against the German corporation tax on
                                                                                that German branch establishment under the same
                                                                                conditions as for a company having its seat in
Reference has been made to the Court of Justice of the                             Germany ?
European Communities by an order of the High Court of
Ireland dated 29 May 1997, which was received at the
Court Registry on 2 September 1997, for a preliminary                         3 . Is it compatible with the applicable Community law,
ruling in the case of Connemara Machine Turf Company '                             and in particular with Articles 52 and 58 of the EC
against Coillte Teoranta on the following questions:                               Treaty, read together, for a branch establishment in
                                                                                Germany of a company having its seat in another
                                                                                Member State not to be accorded Schachtelprivileg in
( i ) Is the Defendant a 'contracting authority' within
                                                                                respect of capital tax under the same conditions as for
       the definition of the term 'contracting authorities'                        a company having its seat in Germany ?
       contained in Article 1 ( b) of Council Directive 77/62/
       EEC H ?
( ii ) Is the Defendant a 'contracting authority' within
       the definition of the term 'contracting authorities'
       contained in Article 1 ( b) of Council Directive 93/36/
       EEC ( 2)?                                                              Reference for a preliminary ruling by Pretura
                                                                              Circondariale di Bari, by order of that court of 19 August
(') Council        Directive      77/62/EEC   of   21  December    1976         1997, in the case of Giuseppe Manfredi v. Regione Puglia
      coordinating procedures for the award of public supply                                            ( Case C-308/97)
      contracts ( OJ L 13 , 15 . 1 . 1977, p. 1 ).
( 2 ) Council Directive 93/36/EEC of 14 June 1993 coordinating                                              97/C 318/21 )
      procedures for the award of public supply contracts ( OJ L 199,
      9 . 8 . 1993 , p. 1 ).
                                                                              Reference has been made to the Court of Justice of the
                                                                              European Communities by an order of the Pretura
                                                                              Circondariale di Bari ( Magistrate's Court, District of Bari )
                                                                              of 19 August 1997, which was received at the Court
                                                                              Registry on 3 September 1997, for a preliminary ruling
Reference for a preliminary ruling from the Finanzgericht                     in the case of Giuseppe Manfredi v. Regione Puglia
Koln by order of that court of 30 June 1997 in the case of                    concerning the extension of the prohibition of the planting
Compagnie de Saint-Gobain, German branch v. Finanzamt                         of new vines laid down in Article 6 ( 1 ) of Council
                               Aachen-Innenstadt                              Regulation ( EEC) No 822/87 ( ] ) to vines intended for the
                                                                              production of table grapes.
                                  Case C-307/97 )
                                  ( 97/C 318/20 )                             0 ) OJ L 84, 27. 3 . 1987, p . 1 .
Reference has been made to the Court of Justice of the
European Communities by an order of the Finanzgericht
Koln (Finance Court, Cologne ) of 30 June 1997, which
was received at the Court Registry on 2 September 1997,
for a preliminary ruling in the case of Compagnie de                          Appeal brought on 4 September 1997 by the Commission
Saint-Gobain, German branch v. Finanzamt Aachen                              of the European Communities against the judgment
Innenstadt on the following questions:                                        delivered on 10 July 1997 by the Second Chamber
                                                                              ( extended composition) of the Court of First Instance of
1 . Is it compatible with the applicable Community law,                       the European Communities in Case T-227/95 between
       and in particular with Articles 52 and 58 of the EC                    AssiDoman Kraft Products AB and Others and the
       Treaty, read together, for a branch establishment in                            Commission of the European Communities
       Germany of a company having its seat in another                                                ( Case C-3 10/97 P)
       Member State not to be accorded Schachtelprivileg (a
       form of tax relief in respect of profits distributed                                               ( 97/C 318/22 )
       between parent company and subsidiary) in respect of
       dividends under a double taxation agreement with a
       non-member State under the same conditions as for a                    An appeal against the judgment delivered on 10 July 1997
       company having its seat in Germany ?                                   by the Second Chamber (extended composition) of the


title: Case C-185/10: Action brought on 13 April 2010 — European Commission v Republic of Poland

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/11

         Action brought on 13 April 2010 — European Commission v Republic of Poland
   (Case C-185/10)
   ()
   2010/C 209/16
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: M. Simerdova and K. Herrmann, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

               —

               declare that, by adopting and maintaining in force Article 4 of the Usatawa ‘Prawo farmaceutyczne’ (Law on Medicinal Products) of 6 September 2001 as amended by the Law of 30 March 2007 (Dz. U. No 75, heading 492), in so far as that article allows medicinal products imported from abroad having the same active substances, the same dosage and the same form as medicinal products which have obtained marketing authorisation in Poland to be placed on the market in Poland without authorisation issued there if the price of the former medicinal products is competitive in relation to the price of the latter, the Republic of Poland has failed to fulfil its obligations under Article 6 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use; (1)

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   The adoption and application by the Republic of Poland of Article 4(1) and (3a) of the Law on Medicinal Products make it possible for medicinal products to be marketed in Poland when they do not possess a marketing authorisation in Poland issued by the competent national authorities, a situation which is contrary to Article 6(1) of Directive 2001/83.
   In the applicant’s submission, the Polish provision is not covered by Article 5(1) and Article 126a of Directive 2001/83, which provide for exceptions to the general requirement contained in Article 6(1) of that directive that medicinal products must have a national authorisation.
   Above all, Article 4(3a) of the Law on Medicinal Products, according to which the condition for allowing imported medicinal products is their ‘competitive price’ compared with the price of medicinal products already allowed on the national market, is based exclusively on an economic criterion. A criterion of that kind cannot, however, justify an exception to Article 6(1) of Directive 2001/83. Furthermore, the Polish provision concerns medicinal products with the same active substance, form and dosage as medicinal products already permitted on the national market, and it is therefore not possible to consider them to be unavailable on the national market, a situation which might justify the need for targeted import on the basis of Article 5(1) of the directive.

      (1)  OJ 2001 L 311, p. 67.


title: Case C-498/14 PPU: Judgment of the Court (Fourth Chamber) of 9 January 2015 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — (Information erased or replaced within the framework of protection of personal data and/or confidentiality.) v (Information erased or replaced within the framework of protection of personal data and/or confidentiality.) (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility — Child abduction — Regulation (EC) No 2201/2003 — Article 11(7) and (8))

text:
                  2.3.2015

                  EN

                  Official Journal of the European Union

                  C 73/8

         Judgment of the Court (Fourth Chamber) of 9 January 2015 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — RG (*1) v SF (*1)

         (Case C-498/14 PPU) (1)

         (Reference for a preliminary ruling - Urgent preliminary ruling procedure - Judicial cooperation in civil matters - Jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility - Child abduction - Regulation (EC) No 2201/2003 - Article 11(7) and (8))
         (2015/C 073/11)
         Language of the case: French

            Referring court

         Cour d’appel de Bruxelles

            Parties to the main proceedings

            Applicant: RG (*1)

            Defendant: SF (*1)

            Operative part of the judgment

         Article 11(7) and (8) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as not precluding, as a general rule, a Member State from allocating to a specialised court the jurisdiction to examine questions of return or custody with respect to a child in the context of the procedure set out in those provisions, even where proceedings on the substance of parental responsibility with respect to the child have already, separately, been brought before a court or tribunal.

            (*1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.

            (1)  OJ C 16, 19.1.2015.


title: Order of the Court (Fourth Chamber) of 11 May 2000 in Case C-428/9 P: Deutsche Post AG v International Express Carriers Conference (IECC), Commission of the European Communities, La Poste, United Kingdom of Great Britain and Northern Ireland and The Post Office (Appeal — Competition — Abuse of a dominant position — Postal services — Remail)

text:
12.8.2000                EN                      Official Journal of the European Communities                                      C 233/11
1.    Article 2 of the First Council Directive 67/227/EEC of                anwalt, Cologne, with an address for service in Luxembourg at
      11 April 1967 on the harmonisation of legislation of Member           the Chambers of Loesch and Wolter, 11 Rue Goethe — Appeal
      States concerning turnover taxes and Article 17(2), (3) and (5)       against the judgment of the Court of First Instance of the
      of the Sixth Council Directive 77/388/EEC of 17 May 1977              European Communities (Third Chamber, Extended Composi-
      on the harmonisation of the laws of the Member States relating        tion) of 16 September 1998 in Cases T-133/95 and T-204/95
      to turnover taxes — Common system of value added tax:                 IECC v Commission [1998] ECR II-3645, seeking to have that
      uniform basis of assessment must be interpreted as meaning            judgment set aside, the other parties to the proceedings being:
      that, in principle, the existence of a direct and immediate link      International Express Carriers Conference (IECC), established
      between a particular input transaction and a particular output        in Geneva, Switzerland, represented by E. Morgan de Rivery,
      transaction or transactions giving rise to entitlement to deduct      of the Paris Bar, and J. Derenne and M. Cunningham, of the
      is necessary before the taxable person is entitled to deduct input    Brussels Bar, with an address for service in Luxembourg at the
      value added tax and in order to determine the extent of such          Chambers of A. Schmitt, 7 Val Sainte-Croix, Commission of
      entitlement.                                                          the European Communities (Agent: K. Wiedner, assisted by N.
                                                                            Forwood), La Poste, represented by H. Lehman, of the Paris
2.    It is for the national court to apply the ‘direct and immediate       Bar, with an address for service in Luxembourg at the
      link’ test to the facts of each case before it. A taxable person      Chambers of A. May, 398 Route d’Esch, United Kingdom of
      who makes transactions in respect of which value added tax is         Great Britain and Northern Ireland, and The Post Office —
      deductible and transactions in respect of which it is not may         The Court (Fourth Chamber), composed of: D.A.O. Edward,
      deduct the value added tax in respect of the goods or services        President of the Chamber, P.J.G. Kapteyn (Rapporteur) and A.
      acquired by him, provided that such goods or services have a          La Pergola, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
      direct and immediate link with the output transactions in             R. Grass, Registrar, has made an order on 11 May 2000, the
      respect of which value added tax is deductible, without it being      operative part of which is as follows:
      necessary to take into account Article 17(2), (3) or (5) of the
      Sixth Directive 77/388. However, such a taxable person                1.    The appeal is dismissed.
      cannot deduct in its entirety the value added tax charged on
      input services where they have been utilised not for the purpose      2.    Deutsche Post AG shall pay the costs.
      of carrying out a deductible transaction but in the context of
      activities which are no more than the consequence of making           3.    International Express Carriers Conference and La Poste shall
      such a transaction, unless that person can show by means of                 bear their own costs.
      objective evidence that the expenditure involved in the acquisition
      of such services is part of the various cost components of the
      output transaction.                                                   (1) OJ C 48 of 20.2.1999.
(1) OJ C 166 of 30.5.1998.
                                                                            Appeal brought on 14 April 2000 by the Commission of
                                                                            the European Communities against the judgment delive-
                                                                            red on 10 February 2000 by the Third Chamber of the
                      ORDER OF THE COURT                                    Court of First Instance of the European Communities in
                                                                            Joined Cases T-32/98 and T-41/98 between, on the one
                          (Fourth Chamber)                                  hand, the Government of the Netherlands Antilles and,
                                                                            on the other hand, the Commission of the European
                                                                                Communities, supported by the Kingdom of Spain
                           of 11 May 2000
                                                                                (Case C-142/00 P)
in Case C-428/9 P: Deutsche Post AG v International
Express Carriers Conference (IECC), Commission of the
European Communities, La Poste, United Kingdom of                                                    (2000/C 233/22)
Great Britain and Northern Ireland and The Post Office (1)
                                                                            An appeal against the judgment delivered on 10 February
(Appeal — Competition — Abuse of a dominant position —                      2000 by the Third Chamber of the Court of First Instance of
                      Postal services — Remail)                             the European Communities in Joined Cases T-32/98 and
                                                                            T-41/98 between, on the one hand, the Government of the
                                                                            Netherlands Antilles and, on the other hand, the Commission
                           (2000/C 233/21)                                  of the European Communities, supported by the Kingdom of
                                                                            Spain, was brought before the Court of Justice of the European
                                                                            Communities on 14 April 2000 by the Commission of the
                     (Language of the case: English)                        European Communities, represented by T. van Rijn, Legal
                                                                            Adviser, of the Commission’s Legal Service, with an address
In Case C-428/98 P: Deutsche Post AG, having its registered                 for service in Luxembourg at the office of C. Gómez de la
office in Bonn, Germany, represented by D. Schroeder, Rechts-               Cruz, of its Legal Service.


title: Case C-370/04: Action brought on 26 August 2004 by the Commission of the European Communities against the Federal Republic of Germany

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/22

         Action brought on 26 August 2004 by the Commission of the European Communities against the Federal Republic of Germany
   (Case C-370/04)
   (2004/C 262/38)
   An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 26 August 2004 by the Commission of the European Communities, represented by G. Braun and W. Wils of the Commission's Legal Service, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to implement Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system (1) in national law, the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty and under that directive;

               2.

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The period prescribed for implementation of Directive 2001/16/EC expired on 20 April 2003.

      (1)  OJ 2001 L 110, p. 1.


title: Case C-263/09 P: Appeal brought on 14 July 2009 by Edwin Co. Ltd against the judgment of the Court of First Instance (Fifth Chamber) delivered on 14 May 2009 in Case T-165/06 Elio Fiorucci v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/25

         Appeal brought on 14 July 2009 by Edwin Co. Ltd against the judgment of the Court of First Instance (Fifth Chamber) delivered on 14 May 2009 in Case T-165/06 Elio Fiorucci v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-263/09 P)
   2009/C 220/51
   Language of the case: Italian

      Parties

      Appellant: Edwin Co. Ltd (represented by: D. Rigattti, M. Bertani, S. Verea, K.P. Muraro, M. Balestriero, avvocati)

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

      Form of order sought

               —

               Set aside the judgment under appeal;

               —

               order Mr Fiorucci to reimburse the appellant for the costs of the proceedings at first instance and the appeal proceedings or, on the contested basis that the appeal is not upheld, order that such costs be shared.

      Pleas in law and main arguments

               1.

               First, the judgment under appeal infringes or misapplies Article 52(2)(a) of the RCTM. (1) The relative ground for refusal which, on the basis of that provision, results in the invalidity of the registration of a trade mark consisting of the name of a person other than that of the registrant, is to be found in the fact that the applicant for such a declaration of invalidity is the owner under national law of an exclusive right of use of that name. However, under Article 8(3) of the CPI, (2) relied on by the other party to the proceedings, Mr Fiorucci does not hold any such right. Rather, Article 8(3) of the CPI confers upon him simply a contingent right to register the sign ‘Elio Fiorucci’, which, however, he could never avail himself of, since a mark thus registered would conflict with the rights of Edwin in the word ‘Fiorucci’. It is against this background that the Court of First Instance declared invalid Edwin’s trade mark ‘Elio Fiorucci’, on the basis of a ground for refusal which does not exist and which could never come into existence. That amounts to infringement or misapplication of Article 52(2)(a) of the RCTM, which, if correctly interpreted, can be applied only where the applicant for a declaration of invalidity is already the owner of (or at the very least has the possibility of obtaining) an exclusive right of use of his own name as a trade mark.

               2.

               The judgment under appeal infringes or misapplies Article 8(3) of the RCTM. Contrary to the finding of the Court of First Instance, that provision is in fact applicable only to the names of persons that have become well-known in the non-commercial sector: it cannot therefore be applied to the patronymic ‘Elio Fiorucci’, which, on the basis of an appraisal of the facts which cannot be challenged in these proceedings, first became well-known in the commercial sector.
               That interpretation of Article 8(3) of the CPI is suggested primarily by the literal wording of the provision, which expressly states that it is intended to restrict the protection which it affords to the names of persons which have become well-known ‘in the artistic, literary, scientific, political or sporting fields’. That conclusion is confirmed by a systematic analysis of Italian trade mark law, from which it is apparent that, where a name has become well-known in the commercial sector, it is protected under Article 12(1)(b) and (f) of the CPI, whereas Article 8(3) of the CPI relates only to names which have first become well-known in the non-commercial sector. It is not possible for both of those provisions to be applied concurrently to the same sign, since that would give rise to two exclusive trade mark rights which are mutually incompatible. By registering his own surname as a trade mark (subsequently assigned to Edwin), Mr Fiorucci therefore relinquished all claim to exploiting the renown attached to his name for commercial purposes. He cannot therefore rely on Article 8(3) of the CPI to bring an action for a declaration that Edwin’s trade mark ‘Elio Fiorucci’ is invalid.
               Furthermore, the interpretation of Article 8(3) of the CPI proposed by Edwin, the consequence of which is that it does not apply to the present dispute, is consistent with the ratio of that provision, which is intended to prevent parasitical exploitation by a person who registers a sign which has gained a prestigious reputation through the merits of another person. No parasitical conduct can be imputed to Edwin since, in acquiring the ‘Fiorucci’ trade marks for a considerable sum, the appellant paid dearly for the right to benefit from the renown attached to the name of the famous Milanese fashion designer.
               The argument of the Court of First Instance that the protection given by Article 8(3) of the CPI is more extensive and does not duplicate the protection given to the reputation acquired by distinctive signs in the commercial sector is not convincing. According to the most authoritative Italian academic writing, the contingent right to register signs that are well-known in the non-commercial sector under Article 8(3) of the CPI is not an absolute right. However, the principal argument must be that the protection is not more extensive than that conferred in Article 12(1)(b) and (f) of the CPI for signs that are well-known or have acquired renown in the commercial sector. The fact that the fields in which those provisions operate overlap confirms once again that they cannot be applied concurrently.
               Contrary to the superficial conclusion of the Court of First Instance, it is apparent from a careful, detailed analysis of Italian academic writings commenting on Article 8(3) of the CPI (formerly Article 21(3)(m)) that the prevailing opinion is that that provision is applicable only to signs which have acquired renown in the non-commercial sector. That is confirmed by the small number of judgments delivered to date by the Italian courts on Article 8(3) of the CPI.
               No more convincing is the argument of the Court of First Instance that, having also become well-known in the non-commercial sector (specifically, in the artistic, cultural and ecological fields and in the field of child-protection), Mr Fiorucci could in any event rely on the protection afforded by Article 8(3) of the CPI. Rather, according to the most authoritative Italian academic writing, when a patronymic that is already registered by another person and has become widely known acquires renown in the non-commercial sector, its owner (in this case: Elio Fiorucci) cannot rely on Article 8(3) of the CPI, since the need to protect the owner (in this case: Edwin) of the well-known trade mark (in this case: the sign ‘Fiorucci’) which has previously been registered takes precedence.

               3.

               The judgment under appeal is unlawful in so far as it fails to state adequate grounds since the Court of First Instance omitted to examine the arguments and evidence supporting Edwin’s submission that it had obtained Elio Fiorucci’s consent to register his patronymic as a trade mark. In the alternative, Edwin submits that, should the Court of Justice find that neither it nor the Court of First Instance has jurisdiction to examine the argument in question, it must expressly refer the matter to the Board of Appeal (or other office or division) of OHIM (which the Court of First Instance failed to do) for it to do so, pursuant to Article 63(6) of the RCTM and Article 1d of Regulation No 216/96. (3)

               4.

               The judgment under appeal is also unlawful on the basis that it infringes or misapplies Article 63 of the RCTM and constitutes a denial of justice, in so far as the Court of First Instance incorrectly refused to consider Edwin’s argument based on the fact that the appellant acquired from Fiorucci SpA a de facto trade mark relating to (or, in any event, any other right to exploit the renown attached to) the patronymic ‘Elio Fiorucci’. In the alternative, Edwin submits that, should the Court of Justice find that neither it nor the Court of First Instance has jurisdiction to examine the argument in question, it must expressly refer the matter to the Board of Appeal (or other office or division) of OHIM (which the Court of First Instance failed to do) for it to do so, pursuant to Article 63(6) of the RCTM and Article 1d of Regulation No 216/96.

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

      (2)  Codice della Proprietà industriale italiano (Italian Industrial Property Code).

      (3)  Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 1996 L 28, p. 11).


title: Case C-155/15: Request for a preliminary ruling from the Kammarrätten i Stockholm — Migrationsöverdomstolen (Sweden) lodged on 1 April 2015 — George Karim v Migrationsverket

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/23

         Request for a preliminary ruling from the Kammarrätten i Stockholm — Migrationsöverdomstolen (Sweden) lodged on 1 April 2015 — George Karim v Migrationsverket
   (Case C-155/15)
   (2015/C 198/31)
   Language of the case: Swedish

      Referring court

   Kammarrätten i Stockholm — Migrationsöverdomstolen

      Parties to the main proceedings

      Applicant: George Karim

      Defendant: Migrationsverket

      Questions referred

               1.

               Do the new provisions on effective legal remedies in Regulation No 604/2013 (1) (recital 19 in the preamble thereto and Article 27(1) and (5) thereof) mean that an applicant for asylum is also to be able to challenge the criteria in Chapter III of the regulation on the basis of which he or she is to be transferred to another Member State which has agreed to receive him or her, or can effective legal remedies be limited to mean only the right to an examination of whether there are systemic deficiencies in the asylum procedure and the reception conditions in the Member State to which the applicant is to be transferred (corresponding to the ruling of the Court of Justice in Case C-394/12)?

               2.

               In the event that the Court should consider that it is possible to challenge the criteria in Chapter III of the regulation, an answer is also requested to the following question. Does Article 19(2) of Regulation No 604/2013 mean that the regulation may not be applied where the applicant for asylum shows that he or she has been outside the territory of the Member States for at least three months?

      (1)  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the member state responsible for examining an application for international protection lodged in one of the member states by a third-country national or a stateless person (recast) (OJ L 180, p. 31).


title: Case C-182/06: Judgment of the Court (First Chamber) of 18 July 2007 (reference for a preliminary ruling from the Cour administrative, Luxembourg) — État du Grand-Duché de Luxembourg v Hans Ulrich Lakebrink, Katrin Peters-Lakebrink (Article 39 EC — Income tax payable by non residents — Calculation of tax rate — Properties in another Member State — Negative rental income not taken into account)

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/7

         Judgment of the Court (First Chamber) of 18 July 2007 (reference for a preliminary ruling from the Cour administrative, Luxembourg) — État du Grand-Duché de Luxembourg v Hans Ulrich Lakebrink, Katrin Peters-Lakebrink
   (Case C-182/06) (1)

   (Article 39 EC - Income tax payable by non residents - Calculation of tax rate - Properties in another Member State - Negative rental income not taken into account)
   (2007/C 211/12)
   Language of the case: French
   Referring court
   Cour administrative, Luxembourg
   Parties to the main proceedings

      Applicant: État du Grand-Duché de Luxembourg

      Defendants: Hans Ulrich Lakebrink, Katrin Peters-Lakebrink
   Re:
   Reference for a preliminary ruling — Cour administrative (Luxembourg) — Interpretation of Article 39 of the EC Treaty — National income tax arrangements in respect of non-resident Community nationals — Refusal to take account of negative rental income relating to property situated in another Member State for calculation of the tax rate
   Operative part of the judgment
   Article 39 EC is to be interpreted as precluding national legislation which does not entitle a Community national who is not resident in the Member State in which he receives income that constitutes the major part of his taxable income to request, for the purposes of determination of the tax rate applicable to the income so received, that negative rental income relating to property situated in another Member State which he does not himself occupy be taken into account, whilst a resident of the first State can request that such negative rental income be taken into account.

      (1)  OJ C 143, 17.6.2006.


title: Case C-643/13 P: Order of the Court (Sixth Chamber) of 17 July 2014  — Melkveebedrijf Overenk BV and Others v European Commission (Appeal — Non-contractual liability — Regulation (EC) No 1468/2006 — Levy in the milk and milk products sector — Manifest inadmissibility)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/30

         Order of the Court (Sixth Chamber) of 17 July 2014 — Melkveebedrijf Overenk BV and Others v European Commission
   (Case C-643/13 P) (1)

   ((Appeal - Non-contractual liability - Regulation (EC) No 1468/2006 - Levy in the milk and milk products sector - Manifest inadmissibility))
   2014/C 315/48
   Language of the case: Dutch

      Parties

      Appellants: Melkveebedrijf Overenk BV, Maatschap Veehouderij Kwakernaak, Mulders Agro vof, Melkveebedrijf Engelen vof, Melkveebedrijf De Peel, Mathijs H. H. M. Moonen (represented by: P. E. Mazel and A van Beelen, advocaten)

      Other party to the proceedings: European Commission (represented by: H. Kranenborg and Z. Malůšková, acting as Agents)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Melkveebedrijf Overenk BV, Maatschap Veehouderij Kwakernaak, Mulders Agro vof, Melkveebedrijf Engelen vof, Melkveebedrijf De Peel and Mathijs Moonen shall pay the costs.

      (1)  OJ C 52, 22.2.2014.


title: Case T-168/12: Judgment of the General Court of 18 September 2014 — Georgias and Others v Council and Commission (Common foreign and security policy — Restrictive measures adopted against certain persons and entities in view of the situation in Zimbabwe — Freezing of funds — Non-contractual liability — Causal link — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Manifest error of assessment — Obligation to state reasons)

text:
               3.11.2014

               EN

               Official Journal of the European Union

               C 388/10

         Judgment of the General Court of 18 September 2014 — Georgias and Others v Council and Commission
   (Case T-168/12) (1)

   ((Common foreign and security policy - Restrictive measures adopted against certain persons and entities in view of the situation in Zimbabwe - Freezing of funds - Non-contractual liability - Causal link - Sufficiently serious breach of a rule of law intended to confer rights on individuals - Manifest error of assessment - Obligation to state reasons))
   2014/C 388/10
   Language of the case: English

      Parties

      Applicants: Aguy Clement Georgias (Harare, Zimbabwe); Trinity Engineering (Private) Ltd (Harare); and Georgiadis Trucking (Private) Ltd (Harare) (represented initially by M. Robson and E. Goulder, Solicitors, and H. Mercer QC, and subsequently by M. Robson, H. Mercer QC and I. Quirk, Barrister)

      Defendants: Council of the European Union (represented by: B. Driessen and G. Étienne, acting as Agents) and European Commission (represented by: M. Konstantinidis and S. Bartelt, acting as Agents)

      Re:

   Application for compensation for the damage allegedly suffered by the applicants following the adoption of Commission Regulation (EC) No 412/2007 of 16 April 2007 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2007 L 101, p. 6).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Aguy Clement Georgias, Trinity Engineering (Private) Ltd and Georgiadis Trucking (Private) Ltd to bear their own costs and to pay those incurred by the Council of the European Union and the European Commission.

      (1)  OJ C 165, 9.6.2012.


title: Case T-328/14: Judgment of the General Court of 18 February 2016 — Jannatian v Council (Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Admission restriction — Action for annulment — No need to adjudicate — Non-contractual liability — Sufficiently serious breach of a rule of law conferring rights on individuals — Non-material damage)

text:
               29.3.2016

               EN

               Official Journal of the European Union

               C 111/21

         Judgment of the General Court of 18 February 2016 — Jannatian v Council
   (Case T-328/14) (1)

   ((Common foreign and security policy - Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Admission restriction - Action for annulment - No need to adjudicate - Non-contractual liability - Sufficiently serious breach of a rule of law conferring rights on individuals - Non-material damage))
   (2016/C 111/25)
   Language of the case: English

      Parties

      Applicant: Mahmoud Jannatian (Tehran, Iran) (represented by: I. Smith Monnerville and S. Monnerville, lawyers)

      Defendant: Council of the European Union (represented by: F. Naert and M. Bishop, acting as Agents)

      Re:

   Action for the annulment of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1), as well as Council Implementing Regulations (EU) No 350/2012 of 23 April 2012, No 709/2012 of 2 August 2012, No 945/2012 of 15 October 2012, No 1264/2012 of 21 December 2012, No 522/2013 of 6 June 2013, No 1203/2013 of 26 November 2013, and No 397/2014 of 16 April 2014 implementing Regulation (EU) No 267/2012 (OJ 2012 L 110, p. 17, OJ 2012 L 208, p. 2, OJ 2012 L 282, p. 16, OJ 2012 L 356, p. 55, OJ 2013 L 156, p. 3, OJ 2013 L 316, p. 1, and OJ 2014 L 119, p. 1, respectively), in so far as those acts concern the applicant, and a claim for compensation for the damage which he claims to have suffered.

      Operative part of the judgment

   The Court:

               1.

               Rules that there is no need to adjudicate on the action in so far as it seeks the annulment of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413, Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007, and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010, as well as Council Implementing Regulations (EU) No 350/2012 of 23 April 2012, No 709/2012 of 2 August 2012, No 945/2012 of 15 October 2012, No 1264/2012 of 21 December 2012, No 522/2013 of 6 June 2013, No 1203/2013 of 26 November 2013, and No 397/2014 of 16 April 2014 implementing Regulation (EU) No 267/2012;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Mr Mahmoud Jannatian and the Council of the European Union to bear their own costs.

      (1)  OJ C 212, 7.7.2014.


title: Order of the Court (Fourth Chamber) of 25 February 2003 in Case C-445/01 (reference for a preliminary ruling from the Tribunale di Biella): Roberto Simoncello, Piera Boerio v Direzione Provinciale di Lavoro (Freedom of establishment — Freedom of movement for workers — Public undertaking — Requirements concerning hiring of workers — Inadmissibility)

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


title: Case T-708/15: Action brought on 3 December 2015 — Cham and Bena Properties v Council

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/31

         Action brought on 3 December 2015 — Cham and Bena Properties v Council
   (Case T-708/15)
   (2016/C 059/34)
   Language of the case: French

      Parties

      Applicant: Cham Holding Co. SA (Damascus, Syria), and Bena Properties Co. SA (Damascus) (represented by: E. Ruchat, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the applicant’s action admissible and well founded;

               —

               as a consequence, order the European Union to repair all of the harm allegedly suffered by the applicant at an amount to be fixed equitably by the Court;

               —

               order an expert to be appointed in order to establish the total extent of the harm suffered by the applicant;

               —

               order the Council of the European Union to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of their action, the applicants rely on three principal pleas and a subsidiary plea, alleging that they have suffered harm for which the Council of the European Union is liable.

               1.

               First plea, alleging the unlawfulness of the measures adopted by the Council, in that the Council has failed to fulfil its duty of care and diligence by basing its decisions to include the applicants on vague and imprecise grounds, notwithstanding the case-law requiring it to justify precisely its decisions, and by overlooking its obligation to have a hearing prior to maintaining the applicants in the lists of sanctions. Moreover, the restrictive measures adopted against the applicants are of an unjustified and disproportionate nature and infringe their right to reputation and their right to property.

               2.

               Second plea, alleging the non-material harm which the applicants have suffered, in that their inclusion in the lists of sanctions has undermined their reputation.

               3.

               Third plea, alleging material harm suffered by the applicants because of their inclusion in the lists of persons and entities covered by restrictive measures, in that by that fact they have lost many contracts and many sources of revenue.

               4.

               Fourth plea, put forward in the alternative, alleging the strict liability of the European Union for the harm caused to the applicants following their inclusion in the lists of persons and entities covered by the sanctions against Syria.


title: Case T-201/15: Action brought on 22 April 2015 — Unicorn v OHIM — Mercilink Equipment Leasing (UNICORN)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/44

         Action brought on 22 April 2015 — Unicorn v OHIM — Mercilink Equipment Leasing (UNICORN)
   (Case T-201/15)
   (2015/C 198/61)
   Language in which the application was lodged: English

      Parties

      Applicant: Unicorn a.s. (Prague, Czech Republic) (represented by: L. Lorenc, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Mercilink Equipment Leasing Ltd (Limassol, Cyprus)

      Details of the proceedings before OHIM

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

      Trade mark at issue: Community word mark ‘UNICORN’ — Community trade mark No 5 992 805

      Procedure before OHIM: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 16 February 2015 in Case R 1699/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision;

               —

               Order OHIM to pay the costs.

      Pleas in law

               —

               OHIM did not properly take into consideration evidence submitted by the applicant;

               —

               OHIM did not take into consideration evidence in Czech;

               —

               OHIM incorrectly considered good reputation of the earlier trademarks.


title: Case T-231/14 P: Appeal brought on 15 April 2014 by the European Medicines Agency against the judgment of the Civil Service Tribunal of 5 February 2014 in Case F-29/13 Drakeford v EMA

text:
               30.6.2014

               EN

               Official Journal of the European Union

               C 202/27

         Appeal brought on 15 April 2014 by the European Medicines Agency against the judgment of the Civil Service Tribunal of 5 February 2014 in Case F-29/13 Drakeford v EMA
   (Case T-231/14 P)
   2014/C 202/34
   Language of the case: French

      Parties

      Appellant: European Medicines Agency (EMA) (represented by T. Jabłoński and N. Rampal Olmedo, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers)

      Other party to the proceedings: David Drakeford (Dublin, Ireland)

      Form of order sought by the appellant

               —

               Set aside the judgment of the Civil Service Tribunal in Case F-29/13 in so far as it annuls the decision of the EMA not to renew the respondent’s contract;

               —

               grant the form of order sought at first instance by the appellant: to dismiss the action as entirely unfounded;

               —

               order the respondent to pay the costs of these appeal proceedings and of the proceedings before the Civil Service Tribunal.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on three pleas in law.

               1.

               First plea in law, alleging errors of law by the Civil Service Tribunal with regard to the interpretation of the first paragraph of Article 8 of the Conditions of Employment of Other Servants of the European Union, in so far as it held that the words ‘any further renewal’ should be interpreted as referring to any process that leads to temporary staff, within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Union, at the end of their engagement for a fixed period, continuing, in that capacity, their employment relationship with their employer, even if such renewal is accompanied by grade progression or a change in the duties performed.

               2.

               Second plea in law, alleging error of law by the Civil Service Tribunal as regards the stating of the exception to the interpretation of the first paragraph of Article 8 of the Conditions of Employment of Other Servants of the European Union.

               3.

               Third plea in law, alleging error of law on the part of the Civil Service Tribunal in so far as it used its unlimited jurisdiction.


title: Case C-290/09: Reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna (Italy), lodged on 27 July 2009 — Telecom Italia SpA v Regione autonoma della Sardegna

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/10

         Reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna (Italy), lodged on 27 July 2009 — Telecom Italia SpA v Regione autonoma della Sardegna
   (Case C-290/09)
   2009/C 233/16
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo per la Sardegna

      Parties to the main proceedings

      Claimant: Telecom Italia SpA

      Defendant: Regione autonoma della Sardegna

      Questions referred

               1.

               Must the provisions of Directive 2004/18/EC (1) on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts that are referred to in section 10 [of the order for reference] be interpreted as precluding a temporary grouping of undertakings, the members of which include a State agency of the kind described in section 12 [of the order for reference], from taking part in a tendering procedure for the award of a contract for a service such as the documentation, dissemination and implementation of the ‘Homogeneous System of Visual Identity of the Cultural Sites and Institutions: Cultural Heritage of Sardinia’, the subject of the tendering procedure advertised by the Sardinia Region?

               2.

               Are the provisions of Italian law contained in Article 3(22) and (19) of the Public Contracts Code, enacted by Legislative Decree No 163/2006 (which provide, respectively, that ‘the term “economic operator” shall include a contractor, supplier, service provider or a group or consortium of these’ and ‘the terms “contractor”, “supplier” and “service provider” shall mean any natural or legal person, or body without legal personality, including a European Economic Interest Group (EEIG) formed pursuant to Legislative Decree No 240 of 23 July 1991, which “offers on the market”, respectively, the execution of works or a work, the supply of products or the provision of services’), and in Article 34 of that Public Contracts Code (which lists the entities allowed to participate in public procurement procedures) contrary to Directive 2004/18/EC if interpreted as restricting participation in tendering procedures to professional providers of such services and as excluding public entities the primary objects of which are not-for-profit, such as research?

      (1)  OJ 2004 L 134, p. 114.