title: Order of the President of the Court of First Instance of 22 December 2004 in Case T-201/04 R Microsoft Corporation v Commission of the European Communities (Proceedings for interim relief — Article 82 EC)

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/16

      ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

   of 22 December 2004
   in Case T-201/04 R Microsoft Corporation v Commission of the European Communities
   (Proceedings for interim relief - Article 82 EC)
   (2005/C 69/31)
   Language of the case: English
   In Case T-201/04 R: Microsoft Corporation, established in Redmond, Washington (United States), represented by J.-F. Bellis, lawyer, and I.S. Forrester QC, supported by The Computing Technology Industry Association, Inc., established in Oakbrook Terrace, Illinois (United States), represented by G. van Gerven and T. Franchoo, lawyers, and B. Kilpatrick, Solicitor, Association for Competitive Technology, Inc., established in Washington, DC (United States), represented by L. Ruessmann and P. Hecker, lawyers, TeamSystem SpA, established in Pesaro (Italy) and Mamut ASA, established in Oslo (Norway), both represented by G. Berrisch, lawyer, DMDsecure.com BV, established in Amsterdam (Netherlands), MPS Broadband AB, established in Stockholm (Sweden), Pace Micro Technology plc, established in Shipley, West Yorkshire (United Kingdom), Quantel Ltd, established in Newbury, Berkshire (United Kingdom) and Tandberg Television Ltd, established in Southampton, Hampshire (United Kingdom), all represented by J. Bourgeois, lawyer, Exor AB, established in Uppsala (Sweden), represented by S. Martínez Lage, H. Brokelmann and R. Allendesalazar Corcho, lawyers against Commission of the European Communities (Agents: R. Wainwright, W. Mölls, F. Castillo de la Torre and P. Hellström), supported by RealNetworks, Inc., established in Seattle, Washington (United States), represented by A. Winckler, M. Dolmans and T. Graf, lawyers, Software & Information Industry Association, established in Washington, DC, represented by C.A. Simpson, Solicitor, Free Software Foundation Europe eV, established in Hamburg (Germany), represented by C. Piana, lawyer — application for suspension of the operation of Articles 4, 5(a) to (c) and 6(a) of Commission Decision C(2004) 900 final of 24 March 2004 relating to a proceeding under Article 82 EC (Case COMP/C-3/37.792 Microsoft) — the President of the Court of First Instance has made an order on 22 December 2004, the operative part of which is as follows:

               1.

               The request for confidential treatment submitted by Microsoft Corporation is granted at the interim measures stage.

               2.

               Audiobanner.com, trading as VideoBanner, is granted leave to intervene in support of the form of order sought by the Commission in the interim measures proceedings.

               3.

               The Computer & Communications Industry Association is removed from the case as intervener in support of the form of order sought by the Commission in the interim measures proceedings.

               4.

               Novell Inc. is removed from the case as intervener in support of the form of order sought by the Commission in the interim measures proceedings.

               5.

               The application for interim measures is dismissed.

               6.

               Costs are reserved.


title: Case T-372/03: Action brought on 10 November 2003 by Yves Mahieu against the Commission of the European Communities

text:
C 7/42                 EN                         Official Journal of the European Union                                          10.1.2004
In support of his claims, the applicant alleges:                          —     order the Commission to pay all costs and expenses in
                                                                                these proceedings.
—    a combination of an error in law and a manifest error of
     assessment of the facts, inasmuch as the contested
     decision does not consider the work carried out by him
     for the Delegation of the Autonomous Community of                    Pleas in law and main arguments
     Murcia in Brussels ‘work done for [a] State’, in the sense
     recognised in the Staff Regulations as an exception to the
     reference period. In the alternative, he claims that the
                                                                          The Contested Decision in this case rejected the applicants
     Council wrongly concluded in the contested decision that
                                                                          request to declassify rosin as a dangerous substance listed in
     the applicant’s centre of interest and habitual residence
                                                                          Annex I of Council Directive 67/548/EEC of 27 June 1967 on
     were in Brussels and not in Murcia;
                                                                          the approximation of laws, regulations and administrative
—    infringement of the principle of equal treatment, in                 provisions relating to the classification, packaging and labelling
     that the appointing authority discriminated between                  of dangerous substances (1).
     essentially identical personal situations.
                                                                          In support of their application the applicants submit that the
                                                                          Contested Decision is unlawful on the grounds that the
                                                                          classification of rosin was decided on the basis of test results
                                                                          relating to a different substance, namely oxidised rosin. They
                                                                          further submit that the classification in question is not
Action brought on 29 October 2003 by Arizona Chemical                     supported by the conclusion of the scientific assessment
B.V., Eastman Belguim B.V.B.A., Resinall Europe B.V.B.A.                  conducted under Directive 67/548 and was decided on the
and Cray Valley Iberica S.A. against the Commission of                    wrong premise that rosin always produces oxidised rosin and
                 the European Communities                                 that the latter causes skin sensitisation under normal handling
                                                                          and use. The applicants also contend that the Contested
                                                                          Decision is unlawful because it is based on the ‘precautionary
                         (Case T-369/03)
                                                                          principle’, which does not apply to hazard-based decisions,
                                                                          that the Contested Decision violates the EC Treaty as it fails to
                          (2004/C 7/77)                                   consider new, state-of-the-art scientific evidence on oxidised
                                                                          rosin and that, finally, the Contested Decision also violates
                  (Language of the case: English)                         fundamental principles of Community law, more especially
                                                                          the principles of legal certainty, legitimate expectations and
                                                                          proportionality.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                          (1) OJ P 196 , 16.08.1967, p. 1-98, English special edition: Series I
European Communities on 29 October 2003 by Arizona                            Chapter 1967, p. 234.
Chemical B.V., Almere, the Netherlands, Eastman Belguim
B.V.B.A., Kallo, Belguim, Resinall Europe B.V.B.A., Brugge,
Belguim and Cray Valley Iberica S.A., Madrid, Spain , represent-
ed by Claudio Mereu and Koen Van Maldegem, lawyers.
The applicant claims that the Court should:
—    annul Commission          Decision    D(2003)430245        of
                                                                          Action brought on 10 November 2003 by Yves Mahieu
     20 August 2003;
                                                                            against the Commission of the European Communities
—    declare that the rosin entry in Annex I of Council Directive
     67/548/EEC of 27 June 1967 on the approximation of                                           (Case T-372/03)
     laws, regulations and administrative provisions relating
     to the classification, packaging and labelling of dangerous
     substances, is unlawful;                                                                       (2004/C 7/78)
—    in the alternative, declare that the rosin Annex I entry is
     inapplicable to the Applicants under Article 241 EC                                     (Language of the case: French)
     Treaty;
—    compensate Applicants for damages suffered as a result of
     the adoption of the contested Decision, in the provisional           An action against the Commission of the European Communi-
     amount of EUR 1; or, in the alternative declare the                  ties was brought before the Court of First Instance of the
     Commission liable for imminent damage foreseeable with               European Communities on 10 November 2003 by Yves
     sufficient certainty, even if the damage cannot be precisely         Mahieu, residing in Brussels, represented by Lucas Vogel,
     assessed;                                                            lawyer.
 ---pagebreak--- 10.1.2004             EN                          Official Journal of the European Union                                          C 7/43
The applicant claims that the Court should:                                      Removal from the register of Case T-131/02 (1)
—     annul the implied decision which the appointing auth-                                        (2004/C 7/80)
      ority might be deemed to have taken, rejecting the
      complaint made by the applicant on 29 October 2002,
      by which it requested the annulment of a decision dated                               (Language of the Case: English)
      6 August 2002, refusing to grant a request for assistance
      and compensation made on 24 January 2002 on the basis
      of Article 24 and Article 90(1) of the Staff Regulations;           By order of 2 October 2003 the President of the Fifth Chamber
                                                                          of the Court of First Instance of the European Communities
—     so far as necessary also annul that decision of 6 August            ordered the removal from the register of Case T-131/02:
      2002, against which the complaint of 29 October 2002                Travelex Global and Financial Services Limited and Interpay-
      was made;                                                           ment Services Limited v Commission of the European Com-
                                                                          munities.
—     order the defendant to pay compensation of EUR 50 000,
      without prejudice to subsequent increase, reduction or
      alteration;                                                         (1) OJ C 169 of 13.07.2002.
—     order the defendant to pay the costs and the expenses
      necessarily incurred for the purposes of the proceedings,
      inter alia, accommodation, travel and subsistence
      expenses, and lawyers fees.
                                                                                Removal from the register of Case T-159/02 (1)
Pleas in law and main arguments
                                                                                (2004/C 7/81)
The applicant made a request for assistance to the Commission
seeking the opening of an investigation and payment of                                      (Language of the Case: English)
compensation following psychological harassment to which
he was allegedly subjected in Eurostat.
                                                                          By order of 15 September 2003 the President of the Fifth
In support of his application, the applicant alleges a manifest           Chamber of the Court of First Instance of the European
error of assessment in the decision rejecting his request, a              Communities ordered the removal from the register of Case
breach of the principle of legitimate expectations and of the             T-159/02: Masdar (U.K.) Ltd v Commission of the European
duty to have regard for the welfare of officials and, finally, a          Communities.
breach of the principle of equal treatment and the right to
reasonable career expectations.                                           (1) OJ C 202 of 24.08.2002.
        Removal from the register of Case T-68/02 (1)
                                                                                Removal from the register of Case T-162/03 (1)
                         (2004/C 7/79)
                                                                                (2004/C 7/82)
                  (Language of the Case: English)
                                                                                (Language of the Case: French)
By order of 15 September 2003 the President of the Fifth
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case                 By order of 30 September 2003 the President of the Fourth
T-68/02: Masdar (U.K.) Ltd v Commission of the European                   Chamber of the Court of First Instance of the European
Communities.                                                              Communities ordered the removal from the register of Case
                                                                          T-162/03: Pascal Millot v Commission of the European
                                                                          Communities.
(1) OJ C 131 of 1.06.2002.
                                                                          (1) OJ C 171 of 19.07.2003.


title: Action brought on 17 September 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-325/97)

text:
1 . 11 . 97            EN                    Official Journal of the European Communities                                    C 331 / 15
Pleas in law and main arguments adduced in support:                     necessary to comply with the Directive named in the
                                                                        Commission's application.
Pleas in law and main arguments correspond to those set                 (') OJ L 168 , 18 . 7. 1995, p. 14 .
                                                                        ( 2 ) OJ L 384 , 31 . 12 . 1986 , p. 1 .
out in Case C-320/97 (2 ); the period prescribed in the
Directive expired on 31 December 1995 .
O OJ L 368 , 31 . 12 . 1994 , p. 38 .
(2) See p. 13 of this Official Journal.
                                                                        Action brought on 17 September 1997 by the Commission
                                                                        of the European Communities against the Federal
                                                                                Republic of Germany
                                                                                ( Case C-325/97)
                                                                                ( 97/C 331 /29 )
Action brought on 17 September 1997 by the Commission
 of the European Communities against the Italian Republic
                                                                        An action against the Federal Republic of Germany was
                          ( Case C-324/97)                              brought before the Court of Justice on 17 September 1997
                                                                        by the Commission of the European Communities,
                            ( 97/C 331/28 )                             represented by Klaus-Dieter Borchardt, of its Legal
                                                                        Service, acting as Agent, with an address for service in
                                                                        Luxembourg at the office of Carlos Gomez de la Cruz,
                                                                        also of the Commission's Legal Service, Wagner Centre,
An action against the Italian Republic was brought before               Kirchberg.
the Court of Justice of the European Communities on
17 September 1997 by the Commission of the European
Communities, represented by Paolo Stancanelli of its Legal              The Commission claims that the Court should:
Service, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gomez de la Cruz,
Wagner Centre, Kirchberg.                                               1 . declare that, by failing to adopt the measures
                                                                               necessary to comply with Directives 94/39/EC ( ! ) and
                                                                               95/10/EC (2 ) within the period prescribed, the Federal
                                                                               Republic of Germany has failed to fulfil its obligations
The applicant claims that the Court should:                                    under the EC Treaty and those Directives;
                                                                        2 . order the defendant to pay the costs.
— declare that, by not adopting the laws, regulations and
     administrative provisions necessary to comply with
     European Parliament and Council Directive 95/27/EC                 Pleas in law and main arguments adduced in support:
     of 29 June 1995 (') amending Council Directive
     86/662/EEC       on     the  limitation  of   noise  emitted       Pleas in law and main arguments correspond to those set
     by hydraulic excavators, rope-operated excavators,                 out in Case C-320/97 ( 3 ); the period prescribed for
     dozers, loaders and excavator-loaders ( 2) or, in any              transposition expired on 30 June 1995 .
     event, by not having communicated such measures, the
     Italian Republic has failed to fulfil its obligations
                                                                        O OJ L 207, 10 . 8 . 1994, p. 20 .
     under that Directive;
                                                                        (2 ) OJ L 91 , 22 . 4 . 1995 , p . 39 .
                                                                        (3 ) See p. 13 of this Official Journal.
— order the Italian Republic to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                        Action brought on 17 September 1997 by the Commission
                                                                        of the European Communities against the Kingdom of
                                                                                Belgium
Article 1 89 of the EC Treaty, in providing that a directive                                         (Case C-326/97)
is binding, as to the result to be achieved, upon the
Member State to which it is addressed, places Member                                                   ( 97/C 331 /30 )
States under an obligation to comply with the time-limits
set by directives for their implementation. In the present
case, when the time-limit expired on 31 December 1995 ,                 An action against the Kingdom of Belgium was brought
the Italian Republic had not adopted the measures                        before the Court of Justice on 17 September 1997 by the


title: Case C-394/16: Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 14 July 2016 — FMS Wertmanagement AöR v Heta Asset Resolution AG

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/25

         Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 14 July 2016 — FMS Wertmanagement AöR v Heta Asset Resolution AG
   (Case C-394/16)
   (2016/C 419/34)
   Language of the case: German

      Referring court

   Landgericht Frankfurt am Main

      Parties to the main proceedings

      Applicant: FMS Wertmanagement AöR

      Defendant: Heta Asset Resolution AG

      Questions referred

               1.

               Is Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms, (1) and in particular Articles 1(1) and 2(1).2 and 2(1).23 thereof, in conjunction with Article 4(1)(1) of Regulation (EU) No 575/2013 of the European Parliament and the Council on prudential requirements for credit institutions and investment firms, (2) to be interpreted as meaning that its scope of application also covers a divestment unit (divestment company), which, at the time when Directive 2014/59/EU entered into force on 2 July 2014, was still a credit institution within the meaning of Article 4(1)(1) of Regulation (EU) No 575/2013 (‘a CRR Institution’), but ceased to be so prior to the expiry on 31 December 2014 of the period provided for transposition of Directive 2014/59/EU into national law, and no longer has a banking licence for conducting banking transactions, but is entitled to carry out (banking) transactions, solely on the basis of a statutory licence, for the sole purpose of portfolio divestment?

               2.

               Is Directive 2014/59/EU, in particular Article 43(2)(b) and Article 37(6) thereof, to be interpreted as meaning that a measure which corresponds to the bail-in tool of Article 43 of Directive 2014/59/EU also comes within its substantive scope of application if, in consequence of a national provision of the home Member State, it is applied in a case in which there is no longer any realistic prospect of restoring the viability of the divestment unit, which has already sold the parts which are to continue to operate after the entry into force of Directive 2014/59/EU on 2 July 2014 but before the expiry of the transposition period on 31 December 2014, and no further services having systemic consequences are to be transferred to a bridge institution and also no further parts of the institution are to be disposed of or transferred, and instead the divestment unit serves only to administer the assets, rights and liabilities for the purpose of an orderly, proactive and best-value divestment of those individual assets, rights and liabilities (portfolio divestment)?

               3.

               Is Article 3(2) of Directive 2001/24/EC of the European Parliament and of the Council on the reorganisation and winding-up of credit institutions (3) (as amended by Article 117 of Directive 2014/59/EU) to be interpreted as meaning that a reduction in the liabilities of a divestment unit which is carried out by an administrative authority of the divestment unit’s home Member State, those liabilities being governed by a different national law, and the reduction of the interest rate and the postponement of liabilities in the Member State whose law governs the obligations and in which the creditor in question has its seat, are fully effective without any further formalities, or is this subject to the conditions that the divestment unit (divestment company) comes within the scope ratione personæ of Directive 2014/59/EU (see Question 1) and the measure which is taken is within the scope ratione materiæ of application of Directive 2014/59/EU?
               Does the term ‘fully effective … without any further formalities’ mean that the court of a Member State which is required to decide whether to recognise the measures taken pursuant to the law of the home Member State within the framework of the law governing the liabilities has no power to examine whether those measures are compatible with Directive 2014/59/EU?

      (1)  Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190).

      (2)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

      (3)  Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ 2001 L 125, p. 15).


title: Case C-143/01: Action brought on 30 March 2001 by the Commission of the European Communities against the Kingdom of Spain

text:
C 150/18               EN                    Official Journal of the European Communities                                         19.5.2001
—     The Court of First Instance decided to rule on the                Action brought on 30 March 2001 by the Commission of
      admissibility of the application without appraising all the       the European Communities against the Kingdom of Spain
      relevant matters of fact and of law.
—     The Court of First Instance infringed upon the applicant’s                                   (Case C-143/01)
      right of action by failing to take into consideration
      whether or not it was possible for the parties to have
      proper access to the facts relevant to the case, which were                                  (2001/C 150/34)
      in fact not available until 15 May 1995 for objective
      reasons and because of the conduct of the Community.
      The appellant also alleges that the limitation period laid        An action against the Kingdom of Spain was brought before
      down by the abovementioned provision, to which there              the Court of Justice of the European Communities on 30 March
      are no exceptions, was improperly curtailed.                      2001 by the Commission of the European Communities,
                                                                        represented by Mr Dı́az-Llanos La Roche and Mr Gómez de la
                                                                        Cruz Talegón, whose address for service in Luxembourg is that
                                                                        of Mr Gómez de la Cruz, Wagner Centre C2/254, Kirchberg.
                                                                        The applicant claims that the Court should:
Action brought on 28 March 2001 by the Commission of                    —     Declare that, by applying a reduced rate of VAT to
  the European Communities against the Italian Republic                       supplies, intra-Community acquisitions or importations
                                                                              of liquified petroleum gas, the Kingdom of Spain has
                         (Case C-142/01)                                      failed to fulfil its obligations under Article 12 of the Sixth
                                                                              VAT Directive (1)
                         (2001/C 150/33)
                                                                        —     Order the Kingdom of Spain to pay the costs.
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 28 March
2001 by the Commission of the European Communities,
represented by Maria Patakia and Antonio Aresu, acting as               Pleas in law and main arguments
Agents.
The applicant claims that the Court should:                             The Commission does not concur with the arguments put
                                                                        forward by the Spanish authorities that butane gas is a fuel
                                                                        similar to natural gas, for which reason it should be subject to
—     Declare that, by maintaining in force Article 12(1) of Law
                                                                        the same tax system. Article 12(3)(b) of the Sixth VAT Directive
      No 81 of 8 March 1991, which makes the recognition of
                                                                        constitutes an exception and does not allow for application by
      ski monitors’ diplomas subject to a reciprocal condition,
                                                                        analogy.
      the Italian Republic has failed to fulfil its obligations
      under Council Directive 92/51/EEC (1) of 18 June 1992
      on a second general system for the recognition of
      professional education and training to supplement Direc-          Even if a supply of butane gas (sucAh gas being the fuel used
      tive 89/48/EEC (2); and                                           by social groups with limited economic means), could be
                                                                        considered as falling within the ambit of ‘cultural or social
—     Order the Italian Republic to pay the costs.                      services’ for the purposes of Annex H, to which Article 12(3)(a)
                                                                        refers, the application of a reduced rate of VAT would lack,
                                                                        even in that case, any legal basis. Paragraph 14 of Annex H to
                                                                        the directive states that such supplies of goods or services must
Pleas in law and main arguments                                         be made by ‘organisations recognised as charities by Member
                                                                        States and engaged in welfare or social security’.
Article 12(1) of Law No 81 of 8 March 1991 is incompatible
with Directive 92/51/EEC given that it imposes a condition of
reciprocity in order to obtain recognition of a diploma for ski
monitors obtained in another Member State, thereby adding               (1) Council Directive 77/388/EEC of 17 May 1977 on the harmonis-
to the directive a condition which it does not provide for.                 ation of the laws of the Member States relating to turnover taxes
                                                                            — Common system of value added tax: uniform basis of
                                                                            assessment (OJ L 145 of 13.6.1977, p. 1).
(1) OJ 1992 L 209, p. 25.
(2) OJ 1989 L 19, p. 16.


title: Case C-15/12 P: Judgment of the Court (Second Chamber) of 19 September 2013 — Dashiqiao Sanqiang Refractory Materials Co. Ltd v Council of the European Union (Appeals — Dumping — Regulation (EC) No 826/2009 — Imports of certain magnesia bricks originating in the People’s Republic of China — Regulation (EC) No 384/96 — Article 2(10)(b) — Fair comparison — Article 11(9) — Interim partial review — Obligation to apply the same methodology as in the investigation leading to the imposition of the duty — Change in circumstances)

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/5

         Judgment of the Court (Second Chamber) of 19 September 2013 — Dashiqiao Sanqiang Refractory Materials Co. Ltd v Council of the European Union
   (Case C-15/12 P) (1)

   (Appeals - Dumping - Regulation (EC) No 826/2009 - Imports of certain magnesia bricks originating in the People’s Republic of China - Regulation (EC) No 384/96 - Article 2(10)(b) - Fair comparison - Article 11(9) - Interim partial review - Obligation to apply the same methodology as in the investigation leading to the imposition of the duty - Change in circumstances)
   2013/C 336/11
   Language of the case: French

      Parties

      Appellant: Dashiqiao Sanqiang Refractory Materials Co. Ltd (represented by: J.-F. Bellis and R. Luff, avocats)

      Other party to the proceedings: Council of the European Union (represented by: J.-P. Hix, acting as Agent, assisted by G. Berrisch, Rechtsanwalt, and by N. Chesaites, Barrister), European Commission (represented by: E. Gippini Fournier and H. van Vliet, acting as Agents)

      Re:

   Appeal against the judgment of the General Court (First Chamber) of 16 December 2011 in Case T-423/09 Dashiqiao Sanqiang Refractory Materials v Council, by which the General Court dismissed the application for annulment of Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China (OJ 2009 L 240, p. 7) — Comparison between the normal value and the export price — Taking into account the value added tax of the country of origin — Application of a different methodology from that used in the initial investigation — Errors of law

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Dashiqiao Sanqiang Refractory Materials Co. Ltd to pay the costs of the present proceedings;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 89, 24.3.2012.


title: Case C-193/09 P: Order of the Court (Eighth Chamber) of 4 March 2010 — Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bayer AG (Appeal — Application for registration of Community word mark ARCOL — Opposition by proprietor of Community word mark CAPOL — Implementation by OHIM of a judgment annulling a decision of its Boards of Appeal — Right to be heard — Likelihood of confusion — Minimal degree of similarity of the marks required — Rejection for manifest irrelevance of new evidence adduced before the Board of Appeal — Articles 8(1)(b), 61(2), 63(6), 73, second sentence, and 74(2) of Regulation No 40/94)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/18

         Order of the Court (Eighth Chamber) of 4 March 2010 — Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bayer AG
   (Case C-193/09 P) (1)

   (Appeal - Application for registration of Community word mark ARCOL - Opposition by proprietor of Community word mark CAPOL - Implementation by OHIM of a judgment annulling a decision of its Boards of Appeal - Right to be heard - Likelihood of confusion - Minimal degree of similarity of the marks required - Rejection for manifest irrelevance of new evidence adduced before the Board of Appeal - Articles 8(1)(b), 61(2), 63(6), 73, second sentence, and 74(2) of Regulation No 40/94)
   2010/C 234/27
   Language of the case: English

      Parties

      Appellant: Kaul GmbH (represented by: R. Kunze, Rechtsanwalt and Solicitor)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent), Bayer AG

      Re:

   Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 25 March 2009 in Case T-402/07 Kaul GmbH v OHIM by which the Court of First Instance dismissed an action for annulment brought by the proprietor of the Community word mark ‘CAPOL’ for goods in Class 1 against Decision R 782/2000-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 1 August 2007, dismissing for the second time the appeal brought against the decision of the Opposition Division which rejected the opposition brought against the application for registration of the Community word mark ‘ARCOL’ for goods in Classes 1, 17 and 20, following the annulment in Case C-29/05 P OHIM v Kaul of the Third Board of Appeal’s initial decision to reject the opposition

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Kaul GmbH shall pay the costs.

      (1)  OJ C 193, 15.8.2009.


title: Case T-426/16: Action brought on 2 August 2016 — Perfumes y Aromas Artesanales v EUIPO — Aromas Selective (Aa AROMAS artesanales)

text:
               3.10.2016

               EN

               Official Journal of the European Union

               C 364/21

      Action brought on 2 August 2016 — Perfumes y Aromas Artesanales v EUIPO — Aromas Selective (Aa AROMAS artesanales)
      (Case T-426/16)
      (2016/C 364/21)
      Language in which the application was lodged: Spanish

         Parties

         Applicant: Perfumes y Aromas Artesanales, SL (Arganda del Rey, Spain) (represented by: J. Botella Reyna, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Aromas Selective, SL (Dos Hermanas, Spain)

         Details of the proceedings before EUIPO

         Applicant: Applicant

         Trade mark at issue: EU figurative mark containing the word elements ‘Aa AROMAS artesanales’– Application for registration No 12 215 018

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 20 May 2016 in Case R 766/2015-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

                  Existence of priority rights and peaceful co-existence on the market and in the registration of the allegedly conflicting marks.

                  —

                  Weak distinctive character of the term ‘AROMAS’.

                  —

                  Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-508/03: Judgment of the Court (First Chamber) of  4 May 2006  — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Admissibility — Subject-matter of the case — Jurisdiction of national courts — Action devoid of purpose — Legal certainty and legitimate expectations of developers — Directive 85/337/EEC — Assessment of the effects of certain projects on the environment — White City development project — Crystal Palace development project — Projects falling within Annex II to Directive 85/337 — Obligation to assess projects likely to have significant effects on the environment — Burden of proof — Transposition of Directive 85/337 into national law — Grant of consent comprising more than one stage)

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/3

         Judgment of the Court (First Chamber) of 4 May 2006 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
   (Case C-508/03) (1)

   (Failure of a Member State to fulfil obligations - Admissibility - Subject-matter of the case - Jurisdiction of national courts - Action devoid of purpose - Legal certainty and legitimate expectations of developers - Directive 85/337/EEC - Assessment of the effects of certain projects on the environment - White City development project - Crystal Palace development project - Projects falling within Annex II to Directive 85/337 - Obligation to assess projects likely to have significant effects on the environment - Burden of proof - Transposition of Directive 85/337 into national law - Grant of consent comprising more than one stage)
   (2006/C 165/05)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: F. Simonetti and X. Lewis, Agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: K. Manji, acting as Agent, D. Elvin QC and J. Maurici, Barrister)
   Re:
   Failure of a Member State to fulfil obligations — Incorrect implementation of Articles 2(1), 4(2), 5(2) and 8 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment — Failure to carry out an impact assessment in respect of urban development projects at White City and Crystal Palace
   Operative part of the judgment
   The Court:

               1.

               Declares that the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Community law by incorrectly transposing into domestic law Articles 2(1) and 4(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, as a result of the national rules under which, in the case of outline planning permission with a requirement of subsequent approval of the reserved matters, an assessment may be carried out only at the initial stage of granting such permission, and not at the later reserved matters stage;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Commission of the European Communities and the United Kingdom to bear their own costs.

      (1)  OJ C 47, 21.2.2004.


title: Case C-377/17: Action brought on 23 June 2017 — European Commission v Federal Republic of Germany

text:
               14.8.2017

               EN

               Official Journal of the European Union

               C 269/13

         Action brought on 23 June 2017 — European Commission v Federal Republic of Germany
   (Case C-377/17)
   (2017/C 269/19)
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: W. Mölls, H. Tserepa-Lacombe and L. Malferrari, Agents)

      Defendant: Federal Republic of Germany

      Form of order sought

   The applicant claims that the Court should:

               1.

               declare that, in so far as it has maintained compulsory fees for architects and engineers under the HOAI (Fee Ordinance for Architects and Engineers), the Federal Republic of Germany has failed to fulfil its obligations under Article 15(1), 15(2)(g) and 15(3) of Directive 2006/123/EC and under Article 49 TFEU;

               2.

               order the Federal Republic of Germany to pay the costs of the proceedings.

      Pleas in law and main arguments

   The German Fee Ordinance for Architects and Engineers (Honorarordnung für Architekten und Ingenieure — ‘HOAI’) contains a system of minimum and maximum prices for the services of that group of professionals. That system makes it more difficult for architects and engineers who wish to compete with established providers by way of offers outside the permitted price range to become established. Those providers, it is submitted, are prevented in that regard from providing services of the same quality at lower prices and from providing services of a higher quality at higher prices.
   This constitutes a restriction of the freedom of establishment for the purposes of both Article 15(1), 15(2)(g) and 15(3) of Directive 2006/123/EC and Article 49 TFEU.
   That restriction is not justified; in particular it is not justified by the interest of safeguarding the quality of services, which is not directly linked to the price.


title: Case T-141/16: Judgment of the General Court of 8 June 2017 — Commission v IEM (Arbitration clause — Contract FAIR-CT98-9544 concluded under the Fourth Framework programme for research, technological development and demonstration activities (1994-1998) — Termination of the contract — Reimbursement of sums advanced — Default interest — Default procedure)

text:
               31.7.2017

               EN

               Official Journal of the European Union

               C 249/25

         Judgment of the General Court of 8 June 2017 — Commission v IEM
   (Case T-141/16) (1)

   ((Arbitration clause - Contract FAIR-CT98-9544 concluded under the Fourth Framework programme for research, technological development and demonstration activities (1994-1998) - Termination of the contract - Reimbursement of sums advanced - Default interest - Default procedure))
   (2017/C 249/38)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: A. Katsimerou and S. Lejeune, acting as Agents, and O. Lytra, lawyer)

      Defendant: IEM — Erga — Erevnes — Meletes perivallontos kai chorotaxias AE (Athens, Greece)

      Re:

   Action on the basis of Article 272 TFEU seeking an order that IEM — Erga — Erevnes — Meletes perivallontos kai chorotaxias AE reimburse the advances paid by the European Commission in relation to contract FAIR-CT98-9544, together with default interest.

      Operative part of the judgment

   The Court:

               1.

               Orders IEM — Erga — Erevnes — Meletes perivallontos kai chorotaxias AE to pay the sum of EUR 75 728,33 to the European Commission, together with default interest at the rate of 3 % to run from 4 September 2010 until payment in full;

               2.

               Orders IEM to pay the costs.

      (1)  OJ C 191, 30.5.2016.


title: Case C-479/01: Action brought on 11 December 2001 by Commission of the European Communities against Kingdom of Belgium

text:
C 84/46                EN                     Official Journal of the European Communities                                       6.4.2002
Action brought on 11 December 2001 by Commission of                      Action brought on 13 December 2001 by the Commission
 the European Communities against Kingdom of Belgium                     of the European Communities against the French Republic
                         (Case C-479/01)                                                          (Case C-483/01)
                                                                                (2002/C 84/80)
                          (2002/C 84/79)
                                                                         An action against the French Republic was brought before the
An action against the Kingdom of Belgium was brought                     Court of Justice of the European Communities on 13 December
before the Court of Justice of the European Communities on               2001 by the Commission of the European Communities,
11 December 2001 by the Commission of the European                       represented by R. Tricot, acting as Agent, with an address for
Communities, represented by M. Wolfcarius, acting as Agent,              service in Luxembourg.
with an address for service in Luxembourg.
                                                                         The Commission of the European Communities claims that
The applicant claims that the Court should:                              the Court should:
                                                                         —     declare that, by failing to adopt all the laws, regulations
1.    Declare that, by failing to adopt or by failing to communi-
                                                                               and administrative measures necessary in order to comply
      cate to the Commission the laws, regulations and adminis-
                                                                               with Council Directive 96/29/Euratom of 13 May 1996
      trative provisions necessary to comply with Commission
                                                                               laying down basic safety standards for the protection of
      Directive 1999/19/EC of 18 March 1999 amending
                                                                               the health of workers and the general public against the
      Council Directive 97/70/EC of 11 December 1997 (1), the
                                                                               dangers arising from ionizing radiation (1), or at any rate
      Kingdom of Belgium has failed to fulfil its obligations
                                                                               by failing to notify those measures to the Commission,
      under that directive and the EC Treaty;
                                                                               the French Republic has failed to fulfil its obligations
                                                                               under that directive;
2.    Order Belgium to pay the costs.
                                                                         —     order the French Republic to pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
The pleas in law and main arguments are similar to those
                                                                         The pleas in law and main arguments are similar to those
advanced in Case C-466/01; the period prescribed by the                  advanced in Case C-389/01 (2); although the prescribed time-
directive expired on 31 May 2000.                                        limit (13 May 2000) has expired, France has not yet adopted
                                                                         the majority of the provisions necessary in order to transpose
                                                                         the directive into national law.
(1) Commission Directive 1999/19/EC of 18 March 1999 amending
    Council Directive 97/70/EC of 11 December 1997 setting up a
    harmonised safety regime for fishing vessels of 24 metres in         (1) OJ L 314 of 4.12.1996, p. 20.
    length and over OJ 1999 L 83, p. 48.                                 (2) OJ C 348 of 8.12.2001, p. 16.


title: Judgment of the Court of First Instance of 7 March 2002 in Case T-212/99: Intervet International BV v Commission of the European Communities (Regulation (EEC) No 2377/90 — Veterinary medicinal products — Application for the inclusion of "Altrenogest" in the list of substances for which a provisional maximum residue limit may be established — Opinion of the Committee for Veterinary Medicinal Products (CVMP) — Action for annulment — Inadmissibility — Action for failure to act — Adoption of a position putting an end to the inaction — No need to adjudicate)

text:
29.6.2002              EN                       Official Journal of the European Communities                                          C 156/17
(Third Chamber, Extended Composition), composed of J. Azizi,               2.    Declares that there is no longer need to adjudicate on the claim
President of the Chamber, K. Lenaerts, V. Tiili, R.M. Moura                      for a declaration that the Commission failed to act;
Ramos and M. Jaeger, Judges; J. Plingers, Administrator, for the
Registrar, has given a judgment on 6 March 2002 in which it:               3.    Orders the Commission to bear its own costs and to pay one
                                                                                half of the applicant’s costs.
1.    Declares that there is no need to adjudicate on the application;
2.    Orders the applicant to pay the costs.
                                                                           (1) OJ C 352 of 4.12.1999.
(1) OJ C 281 of 2.10.1999.
                                                                               JUDGMENT OF THE COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                                        of 28 February 2002
                         of 7 March 2002                                   in Joined Cases T-227/99 and T-134/00: Kvaerner Warnow
                                                                           Werft GmbH v Commission of the European Communi-
in Case T-212/99: Intervet International BV v Commission                                                    ties (1)
               of the European Communities (1)
                                                                           (State aids — Shipbuilding — Former German Democratic
(Regulation (EEC) No 2377/90 — Veterinary medicinal                        Republic — Limits on capacity — Composition of the
products — Application for the inclusion of ‘Altrenogest’ in               Commission — Commission Member given leave of absence
the list of substances for which a provisional maximum                     — Election of Commission Members to the European Parlia-
residue limit may be established — Opinion of the Committee                                                 ment)
for Veterinary Medicinal Products (CVMP) — Action for
annulment — Inadmissibility — Action for failure to act —
Adoption of a position putting an end to the inaction — No                                           (2002/C 156/32)
                        need to adjudicate)
                                                                                (Language of the case: German)
                          (2002/C 156/31)
                   (Language of the case: English)
                                                                           In Joined Cases T-227/99 and T-134/00: Kvaerner Warnow
                                                                           Werft GmbH, established in Rostock-Warnemünde (Germany),
                                                                           represented by M. Schütte, lawyer, with an address for service
In Case T-212/99, Intervet International BV, formerly Hoechst              in Luxembourg, v Commission of the European Communities
Roussel Vet GmbH, established in Boxmeer (Netherlands),                    (Agent: K.-D. Borchardt) — application for annulment of
represented by D. Waelbroek and D. Brinckman, lawyers, with                Commission Decision 1999/675/EC of 8 July 1999, as
an address for service in Luxembourg, v Commission of the                  amended, and of Commission Decision 2000/336/EC of
European Communities (Agents: T. Christoforou, H. Stolvlbaek               15 February 2000 on State aid granted by the Federal Republic
and F. Ruggeri-Laderchi): Application for the annulment of an              of Germany to Kvaerner Warnow Werft GmbH (OJ 1999
alleged Commission decision rejecting an application by the                L 274, p. 23 and OJ 2000 L 120, p. 12, respectively) — the
applicant for the insertion of the substance ‘altrenogest’ in              Court of First Instance (Fourth Chamber, Extended Compo-
Annex III to Council Regulation (EEC) No 2377/90 of                        sition), composed of: P. Mengozzi, President, R. Garcı́a-
26 June 1990 laying down a Community procedure for                         Valdecasas, V. Tiili, R.M. Moura Ramos and J.D. Cooke, Judges;
the establishment of maximum residue limits of veterinary                  D. Christensen, Administrator, for the Registrar, has given a
medicinal products in foodstuffs of animal origin (OJ 1990                 judgment on 28 February 2002, in which it:
L 224, p. 1) and, in the alternative, for a declaration that the
Commission unlawfully failed to prepare a draft of measures
                                                                           1.    Annuls Commission Decision 1999/675/EC of 8 July 1999
to be taken with a view to such insertion and to initiate the
                                                                                on the State aid implemented by Germany in favour of Kvaerner
procedure laid down in Article 8 of that regulation. The Court
                                                                                Warnow Werft GmbH, as amended by Commission Decision
of First Instance (Second Chamber), composed of: R.M. Moura
                                                                                2000/416/EC of 29 March 2000 on State aid implemented
Ramos, President, J. Pirrung and A.W.H. Meij, Judges; H. Jung,
                                                                                by Germany in favour of Kvaerner Warnow Werft GmbH
Registrar, has given a judgment on 7 March 2002, in which it:
                                                                                (1999) and Commission Decision 2000/336/EC of 15 Febru-
                                                                                ary 2000 on State aid implemented by Germany in favour of
1.    Dismisses the claim for annulment as inadmissible;                         Kvaerner Warnow Werft GmbH;


title: Case T-17/02: Action brought on 29 January 2002 by Fred Olsen S.A. against Commission of the European Communities

text:
C 97/12               EN                     Official Journal of the European Communities                                      20.4.2002
The applicant asserts that the decision refusing his application        Grounds of claim:              —     incorrect application of the
is contrary to Article 5(2) of Annex VII, since the conditions                                               provisions of Regulation
for granting an installation allowance are fulfilled, and that the                                           (EC) No 40/94 (1) and of
European Parliament cannot validly rely on the ground of                                                     Regulation (EC) No 2868/
exclusion laid down in Article 5(4) of Annex VII.                                                            95 (2);
                                                                                —     incorrect application of
                                                                                Article 7(1)(b) and (c) of
                                                                                Regulation (EC) No 40/94;
                                                                                —     incorrect application of
                                                                                Article 7(3) of Regulation
                                                                                (EC) No 40/94.
Action brought on 30 January 2002 by Audi AG against
the Office for Harmonisation in the Internal Market
                                                                        (1) Council Regulation (EC) No 40/94 of 20.12.1003 on the Com-
                  (Trade Marks and Designs)
                                                                            munity trade mark (OJ 1994 L 11, p. 1).
                                                                            (2) Commission Regulation (EC) No 2868/95 of 13 December
                                                                            1995 implementing Council Regulation (EC) No 40/94 on the
                         (Case T-16/02)                                     Community trade mark (OJ 1995 L 303, p. 1).
                         (2002/C 97/25)
                  (Language of the case: German)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on                  Action brought on 29 January 2002 by Fred Olsen S.A.
30 January 2002 by Audi AG, of Ingolstadt (Germany),                         against Commission of the European Communities
represented by L. von Zumbusch, lawyer.
                                                                                (Case T-17/02)
The applicant claims that the Court should:
                                                                                (2002/C 97/26)
—     annul the decision adopted on 8 November 2001 by the
      First Board of Appeal in appeal No R 0652/2000-1;
                                                                                (Language of the case: Spanish)
—     order the defendant Office to pay the costs.
                                                                        An action against the Commission of the European Communi-
Pleas in law and main arguments                                         ties was brought before the Court of First Instance of the
                                                                        European Communities on 29 January 2002 by Fred Olsen
                                                                        S.A., whose registered office is in Santa Cruz de Tenerife
The trade mark con-           the verbal mark ‘TDI’ — appli-            (Spain), represented by Rafael Marı́n Correa, lawyer.
cerned:                       cation No 19752
Goods or services:            goods and services in Classes 12          The applicant claims that the Court should:
                              and 37 (vehicles and constructive
                              parts thereof; repair and mainten-        —      annul the decision of the Commission of 25 July 2001
                              ance of vehicles)
Decision        contested     refusal of registration by the            —      order the Commission of the European Communities
before the Board of           examiner                                         to initiate the procedure for verifying whether aid is
Appeal:                                                                        compatible with the EC Treaty in accordance with its
                                                                               judgment;
Decision of the Board of      rejection of the appeal
Appeal:                                                                 —      order the defendant to pay the costs.
 ---pagebreak--- 20.4.2002              EN                    Official Journal of the European Communities                                        C 97/13
Pleas in law and main arguments                                         —    infringes Article 86(2) of the EC Treaty and general
                                                                             communications on services in the general interest and
                                                                             those specifically concerning aid to maritime transport
                                                                             by considering, in blatant contradiction to those pro-
The applicant, a Spanish maritime company which, although                    visions, that the aid is compatible with Article 86(2). The
the majority of its shares are held in the Netherlands, has for a            applicant would point out in that respect that:
long time been operating a number of sea routes between
the islands of the Canaries archipelago, is challenging the
Commission decision                                                          (a)   there is no act emanating from the public authorities
                                                                                defining the content of services in the general
                                                                                interest and recommending Transmediterránea to
                                                                                provide them;
(a)   not to contest the payment to Transmediterránea S.A. of
      PTA 15 560 625 000 intended to make up for the losses
      arising from the provision of cabotage services during                 (b) it was not necessary to declare Canary routes as
      1997 and, secondly, to settle the rights and obligations                     being in the general interest; and
      of the State directly linked to the public service contract
      entered into in 1977 between Transmediterránea and the
      Spanish State and,                                                     (c)   the routes were not awarded by means of an open
                                                                                tender procedure.
(b) not to raise any objection whatever to the aid valued at
      PTA 1 650 000 000 paid to Transmediterránea in the
      form of public service compensation for the maritime
      cabotage services provided by that company in the
      Canaries archipelago during 1998.
As regards the first aspect, that is to say the amounts paid to         Action brought on 8 February 2002 by Daiichi Pharma-
Transmediterránea in the form of settling accounts for 1997            ceutical Co. Ltd. against the Commission of the European
and final settlement of the contract which the Commission                                         Communities
accepts because it deems such payments existing aid — prior
to the accession of Spain — in that they arise directly from the
                                                                                (Case T-26/02)
implementation of the contract entered into in 1977, the
applicant claims that the contested decision is vitiated by an
error of assessment inasmuch as it allows:                                                       (2002/C 97/27)
—     certain expenditure relating to staff reduction to be                                (Language of the case: English)
      charged to the accounts for 1997 and for final settlement;
      and
                                                                        An action against the Commission of the European Communi-
—     payment of the entire amount by way of final settlement           ties was brought before the Court of First Instance of the
      without charging the debts to the financial years in which        European Communities on 8th February 2002 by Daiichi
      they may have arisen and without offsetting them with             Pharmaceutical Co. Ltd., represented by Mr Jacques Buhart and
      any surpluses.                                                    Mr Pierre-M. Louis of Coudert Brothers LLP, Brussels (Belgium).
As regards the second aspect, that is to say the aid granted in         The applicant claims that the Court should:
the form of compensation for the routes provided in the
Canaries during 1998, which the Commission classifies as new            —    annul Article 3 (f) of the Commission Decision of
aid, the applicant alleges that the contested decision:                      21 November 2001 relating to a proceeding pursuant to
                                                                             Article 81 of the EC Treaty and Article 53 of the EEA
                                                                             Agreement (Case No. COMP/E-1/37,512 — Vitamins);
—     infringes Article 88 of the EC Treaty, since the competent
      Spanish authority, by granting the aid, has failed to fulfil      —    alternatively, substantially decrease the fine levied on the
      its obligations under the recommendation, drawn up by                  applicant; and
      the Commission pursuant to the aforementioned article,
      on the upkeep and maintenance of the system of aid
      applicable to Transmediterránea.                                 —    order the Commission to pay the costs.


title: Case C-4/15: Judgment of the Court (Fourth Chamber) of 21 July 2016 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v Argos Supply Trading BV (Reference for a preliminary ruling — Customs union — Common Customs Tariff — Customs procedures with economic impact — Outward processing — Regulation (EEC) No 2913/92 — Article 148(c) — Issue of authorisation — Economic conditions — Absence of serious harm to the essential interests of Community processors — Concept of ‘Community processors’)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/6

         Judgment of the Court (Fourth Chamber) of 21 July 2016 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v Argos Supply Trading BV
   (Case C-4/15) (1)

   ((Reference for a preliminary ruling - Customs union - Common Customs Tariff - Customs procedures with economic impact - Outward processing - Regulation (EEC) No 2913/92 - Article 148(c) - Issue of authorisation - Economic conditions - Absence of serious harm to the essential interests of Community processors - Concept of ‘Community processors’))
   (2016/C 343/07)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Staatssecretaris van Financiën

      Defendant: Argos Supply Trading BV

      Operative part of the judgment

   Article 148(c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that, in the context of a request for authorisation to use the outward processing procedure, in order to assess whether the economic conditions governing the use of that procedure are satisfied, it is necessary to take account not only of the essential interests of Community producers of products analogous to the finished product resulting from the envisaged processing operations, but also of those of Community producers of products analogous to the basic products or to the intermediate non-EU products intended to be incorporated in the Community goods temporarily exported during those operations.

      (1)  OJ C 107, 30.3.2015.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/37

         Removal from the register of Case C-413/03 (1)

   (2004/C 94/109)
   By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-413/03: Commission of the European Communities v Ireland.

      (1)  OJ C 275 of 15.11.2003.


title: Case T-258/17: Action brought on 3 May 2017 — Arbuzov v Council

text:
               3.7.2017

               EN

               Official Journal of the European Union

               C 213/35

         Action brought on 3 May 2017 — Arbuzov v Council
   (Case T-258/17)
   (2017/C 213/47)
   Language of the case: Czech

      Parties

      Applicant: Sergej Arbuzov (Kyiv, Ukraine) (represented by: M. Mleziva, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as it relates to Sergej Arbuzov;

               —

               order the Council of the European Union to bear its own costs and pay those incurred by Sergej Arbuzov.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging breach of the right to good administration

                           —

                           The applicant bases his application inter alia on the fact that the Council of the European Union did not proceed with proper care when adopting Decision (CFSP) 2017/381 of 3 March 2017, since it did not, before adopting the contested decision, address the applicant’s arguments and the evidence presented by him which supported his case, and proceeded essentially on the basis of a brief summary by the Ukraine Chief Public Prosecutor’s office without requiring any additional information on the progress of the investigation in Ukraine.

               2.

               Second plea in law, alleging breach of the applicant’s right to property

                           —

                           The applicant submits in this respect that the restrictions adopted with respect to him are disproportionate and unnecessary and breach the guarantees of international law protection of his right to property.


title: Case F-38/14: Judgment of the Civil Service Tribunal (First Chamber) of 26 March 2015 — Coedo Suárez v Council (Civil Service — Officials — Disciplinary procedure — Disciplinary action — Revocation and reduction of the invalidity allowance — Proportionality of the penalty — Manifest error of assessment — Concept of conduct of the official throughout his career — Adhering to working hours)

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/43

         Judgment of the Civil Service Tribunal (First Chamber) of 26 March 2015 — Coedo Suárez v Council
   (Case F-38/14) (1)

   ((Civil Service - Officials - Disciplinary procedure - Disciplinary action - Revocation and reduction of the invalidity allowance - Proportionality of the penalty - Manifest error of assessment - Concept of conduct of the official throughout his career - Adhering to working hours))
   (2015/C 155/62)
   Language of the case: French

      Parties

      Applicant: Ángel Coedo Suárez (Brussels, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer and A. Bisch, acting as Agents)

      Re:

   Application to annul the decision of the Secretary General of the Council to impose the penalty of revoking and reducing the invalidity allowance by 15 % until the age of retirement.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr Coedo Suárez to bear his own costs and to pay the costs incurred by the Council of the European Union.

      (1)  OJ C 212, 7.7.2014, p. 45.


C 348/22              EN                 Official Journal of the European Communities                                8.12.2001
       Removal from the register of Case C-249/00 (1)                      Removal from the register of Case C-443/00 (1)
                       (2001/C 348/39)                                                     (2001/C 348/42)
By order of 2 August 2001 the President of the Court of Justice     By order of 13 September 2001 the President of the Court of
of the European Communities has ordered the removal from            Justice of the European Communities has ordered the removal
the register of Case C-249/00: Commission of the European           from the register of Case C-443/00: Commission of the
Communities v Hellenic Republic.                                    European Communities v Federal Republic of Germany.
(1) OJ C 247 of 26.8.2000.                                          (1) OJ C 45 of 10.2.2001.
       Removal from the register of Case C-272/00 (1)                      Removal from the register of Case C-132/01 (1)
                       (2001/C 348/40)                                                     (2001/C 348/43)
By order of 4 September 2001 the President of the Court of          By order of 8 October 2001 the President of the Court of
Justice of the European Communities has ordered the removal         Justice of the European Communities has ordered the removal
from the register of Case C-272/00: Commission of the               from the register of Case C-132/01: Commission of the
European Communities v Hellenic Republic.                           European Communities v Republic of Austria.
(1) OJ C 259 of 9.9.2000.                                           (1) OJ C 161 of 2.6.2001.
       Removal from the register of Case C-354/00 (1)                      Removal from the register of Case C-133/01 (1)
                       (2001/C 348/41)                                                     (2001/C 348/44)
By order of 4 October 2001 the President of the Court of            By order of 8 October 2001 the President of the Court of
Justice of the European Communities has ordered the removal         Justice of the European Communities has ordered the removal
from the register of Case C-354/00: Commission of the               from the register of Case C-133/01: Commission of the
European Communities v Kingdom of Spain.                            European Communities v Republic of Austria.
(1) OJ C 316 of 4.11.2000.                                          (1) OJ C 161 of 2.6.2001.


title: Case C-214/03: Action brought on 19 May 2003 by the Commission of the European Communities against the Republic of Austria

text:
5.7.2003              EN                          Official Journal of the European Union                                             C 158/19
1.   Must Article 6(3) of the Athens Protocol of 17 May 1980                    2.     by failing to include in the relevant Austrian legal
     for the protection of the Mediterranean Sea against                               provisions (Luftreinhaltegesetz für Kesselanlagen —
     pollution from land-based sources (the Barcelona Con-                             LRG-K and LRV-K) (law on air purity for boiler
     vention), which has become Article 6(1) in the revised                            plants) the definitions of ’new plant’ and ’existing
     version, be held to have direct effect, so that any interested                    plant’ as set out in Article 2.9 and 2.10 of the
     party may rely on it before the national courts in an action                      directive;
     to halt discharges of water which are not authorised in
     accordance with the procedure and criteria which it                        3.     by failing fully, in particular by reason of the
     prescribes?                                                                       divergence of the Austrian definition of fuel from
                                                                                that set out in Article 2.6 of the directive, to
                                                                                incorporate in the relevant air-purity legislation the
2.   Must the same provision be interpreted to mean that it                            emission limit values for sulphur dioxide, oxides of
     prohibits the discharge into a saltwater marsh communi-                           nitrogen and dust laid down in Article 4.1 in
     cating with the Mediterranean Sea of substances which,                            conjunction with Annexes III to VII to the directive;
     although not toxic, adversely affect the oxygen content
     of the marine environment, without an authorisation                        4.     by failing correctly to transpose in the LRG-K
     issued by the competent authorities of the Member States,                         and LRV-K Article 9(2) and (3) of the directive
     taking into account the provisions of the abovementioned                          concerning the calculation of the emission limit
     Protocol and of Annex III C thereto (now Annex II)?                               value in multi-fuel firing units which use distillation
                                                                                and conversion residues from crude-oil refining for
                                                                                own consumption, alone or with other fuels,
                                                                                the Republic of Austria has failed to fulfil its obligations
                                                                                under Articles 2.6, 2.8, 2.9, 2.10 and 10(4)(1) of Directive
                                                                                88/609, in conjunction with Annexes III to VII thereto
                                                                                and Article 9(2) and (3) of that directive;
                                                                          II.   Order the Republic of Austria to pay the costs of the
                                                                                proceedings.
Action brought on 19 May 2003 by the Commission
of the European Communities against the Republic of
                              Austria                                     Pleas in law and main arguments
                                                                          The Commission finds that the Republic of Austria has failed
                                                                          to fulfil its obligations by failing to bring its national law into
                       (Case C-214/03)
                                                                          line with the directive, which was thus improperly and
                                                                          incompletely transposed, in so far as:
                       (2003/C 158/31)                                    —     it failed correctly to transpose Article 2.8 of the directive
                                                                                relating to the term ‘multi-fuel firing unit’ by restricting
                                                                                the term, in a manner not envisaged in the directive,
                                                                                to units in which the percentage of additional fuels
                                                                                contributing to the thermal input amounts to at least
An action against the Republic of Austria was brought before                    20 % and thus restricting the scope of the directive in
the Court of Justice of the European Communities on 19 May                      that regard;
2003 by the Commission of the European Communities,
                                                                          —     it failed to transpose Article 2.9 and 2.10 of the directive
represented by Josef Christian Schieferer and Gregorio Valero
                                                                                with regard to the definitions of ‘new plant’ and ‘existing
Jordana, of the Commission’s Legal Service, acting as Agents,
                                                                                plant’;
with an address for service in Luxembourg.
                                                                          —     it failed fully to give effect to the emission limit values for
                                                                                sulphur dioxide, oxides of nitrogen and dust in accord-
                                                                                ance with Article 4(1) in conjunction with Annexes III
The applicant claims that the Court should:
                                                                                to VII, particularly in light of the definition of fuel,
                                                                                which in the Austrian legal provisions is confined to
I.   Rule that:                                                                 ‘conventional fuels’, as a result of which only partial effect
                                                                                is given to the scope of the directive;
     1.   by laying down in paragraph 22(1) of the Luft-
          reinhalteverordnung für Kesselanlagen (regulation               —     it failed correctly to transpose Article 9(2) and (3) of the
          on air purity for boiler plants) (LRV-K) a definition                 directive with regard to the calculation of the limit values
          of ’multi-fuel firing unit’ that departs from Article 2.8             for multi-fuel firing units in refineries.
          of Council Directive 88/609/EEC of 24 November
          1988 on the limitation of emissions of certain                  (1 ) OJ 1988 L 336, p. 1.
          pollutants into the air from large combustion plants,
          as amended (1);


title: Case C-98/03: Action brought on 28 February 2003 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 124/4               EN                         Official Journal of the European Union                                           24.5.2003
Action brought on 28 February 2003 by the Commission                     Pleas in law and main arguments
of the European Communities against the Federal Repub-
                         lic of Germany
                                                                         —     Provisions designed to transpose Article 6(3) of the
                                                                               directive are to be evaluated in terms of whether they
                         (Case C-98/03)                                        require an assessment of the implications in the case of
                                                                               all projects likely to have a significant effect on special
                                                                               areas of conservation. Whether a particular effect may be
                        (2003/C 124/07)                                        significant cannot be decided solely by reference to
                                                                               the project, but only by taking into consideration the
                                                                               conservation aims of each individual area of conservation
                                                                               which may be affected and the nature and extent of
                                                                               the habitats and species present in each individual
An action against the Federal Republic of Germany was                          area. However, the definition of ‘projects’ contained in
brought before the Court of Justice of the European Communi-                   Paragraph 10(1)(11)(b) and (c) of the Bundesnaturschutz-
ties on 28 February 2003 by the Commission of the European                     gesetz (Federal Law on Nature Conservation) does not
Communities, represented by Ulrich Wölker, Legal Adviser of                    take into account areas of conservation. Even if theoretical
the Commission of the European Communities, with an                            evidence is produced to show that, despite the restrictions
address for service in Luxembourg.                                             contained in the definition, all conceivable projects likely
                                                                               to have a significant effect on special areas of conservation
                                                                               are in fact covered, there would still be no guarantee that
                                                                               projects with atypical effects of, in principle, a less
The applicant claims that the Court should:
                                                                               apparent nature would be covered if they were likely to
                                                                               be significant in an actual individual case. In particular,
1.    Declare that                                                             small habitats containing unusual species may react much
                                                                               more sensitively to influences than may be anticipated
                                                                               by provisions concerning projects, which standardise
      —   by not providing for the duty to carry out an                        categories.
          assessment of the implications in the case of certain
          projects outside special areas of conservation, as
          referred to in Article 4(1) of Council Directive 92/
          43/EEC ( 1) of 21 May 1992 on the conservation of              —     It is contrary to Article 6(3) and (4) of the directive for
          natural habitats and of wild fauna and flora, which                  regard not to be had to pollution by noxious substances
          pursuant to Article 6(3) and (4) of the directive are                outside a (not clearly defined) area where the effects of a
          to be subject to such an assessment irrespective of                  project are felt, which is the position under Paragraph 36
          whether those projects are likely to have a significant              of the Bundesnaturschutzgesetz.
          effect on an area of special conservation;
      —   by authorising emissions in a special area of conser-          —     Restricting the protection of sites where animals nest,
          vation, irrespective of whether they are likely to                   breed, live or find refuge to cases where there are
          have a significant effect on that area;                              deliberate effects (Paragraph 43(4) of the Bundesnatur-
                                                                               schutzgesetz) is not consistent with Article 12(1)(d) of
                                                                               the directive, the clear wording of which indicates that
      —   by derogating from the scope of the provisions                       intention is not necessary in the context of the prohibition
          concerning the protection of species in the case of                  concerning deterioration or destruction of breeding sites
          certain non-deliberate effects on protected animals;                 or resting places.
      —   by failing to ensure compliance with the criteria for
          derogation set out in Article 16 of the directive in           —     Paragraph 43(4) of the Bundesnaturschutzgesetz also
          the case of certain activities which are supposed to                 provides for derogations from the provisions concerning
          be compatible with conservation of an area;                          the protection of species in favour of intervention or
                                                                               measures already authorised, without taking into account
                                                                               the fact that at the time of authorisation it may not yet
      —   by retaining provisions on the application of pesti-
                                                                               have been known that a protected species is affected.
          cides which do not take sufficient account of the
          protection of species;
      —   by failing to notify fishery catch legislation and/or
                                                                         (1 ) OJ L 206 of 22.7.1992, p. 7.
          to ensure that such legislation contains adequate
          bans on fishing, the Federal Republic of Germany
          has failed to fulfil its obligations under the directive.
2.    Order the Federal Republic of Germany to pay the costs.


title: Case C-3/06 P: Appeal brought on  4 January 2006  by Groupe Danone against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of  25 October 2005  in Case T-38/02: Groupe Danone v Commission of the European Communities

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/19

         Appeal brought on 4 January 2006 by Groupe Danone against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 25 October 2005 in Case T-38/02: Groupe Danone v Commission of the European Communities
   (Case C-3/06 P)
   (2006/C 48/37)
   Language of the case: French
   An appeal against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 25 October 2005 in Case T-38/02 Groupe Danone v Commission of the European Communities was brought before the Court of Justice of the European Communities on 4 January 2006 by Groupe Danone, represented by A. Winckler and S. Sorinas, avocats.
   The appellant claims that the Court should:

               —

               set aside in part, on the basis of Article 225(1) EC and Article 61 of the Statute, the judgment given by the Court of First Instance on 25 October 2005 in Case T-38/02 Groupe Danone v Commission of the European Communities in so far as (i) it dismisses the plea that there was no basis for taking into account the applicant's repeated infringement as an aggravating circumstance and (ii) it varies the method of calculation used by the Commission for the fine imposed;

               —

               grant the forms of order sought by Groupe Danone at first instance in relation to the plea that there was no basis for taking into account the applicant's repeated infringement as an aggravating circumstance and, consequently, on the basis of Article 229 EC and Article 17 of Regulation No 17 (1), reduce the fine imposed by the Commission;

               —

               reduce, on the basis of Article 229 EC and Article 17 of Regulation No 17, the amount of the fine pro rata to the decrease in the reduction for attenuating circumstances decided on by the Court of First Instance;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   In support of the present appeal, the appellant raises five pleas to have the judgment under appeal set aside in part. Those pleas are based, firstly, on an incorrect interpretation by the Court of First Instance of the concept of 'repeated infringement' and, secondly, on the manifest unlawfulness of the amendment of the method of calculation of the fine which led to a decrease in the reduction of the fine granted for attenuating circumstances and, accordingly, an increase in the amount of the fine by comparison with that which would have been applicable had the Court of First Instance reduced the increase for aggravating circumstances from 50 % to 40 % without amending the method of calculation of the fine used by the Commission.
   In support of its arguments in relation to the incorrect interpretation of the concept of repeated infringement, the appellant relies on three separate pleas.

               —

               By the first plea, the appellant maintains that the Court of First Instance failed to take account of the principle that offences and penalties must be defined by law and its corollary, the principle of non-retroactivity of more severe criminal laws, by confirming the increase in the appellant's fine for the aggravating circumstance of repeated infringement, in the absence of a clear and sufficiently foreseeable legal basis.

               —

               By its second plea, the appellant maintains that the Court of First Instance incorrectly applied the principle of legal certainty by refusing to limit in time the application of repeated infringement, contrary to the case-law of the Court of Justice.

               —

               Finally, by its third plea, the appellant maintains that the judgment is vitiated by a contradiction in the grounds amounting to a defect in the statement of grounds in relation to the assessment of the link between repeated infringement and the need to ensure that fines be sufficiently deterrent.

         The appellant raises two further pleas in support of its argument in relation to the manifestly unlawful nature of the increase in the amount of the fine decided on by the Court of First Instance following the change in the weighting applied for extenuating circumstances. The main plea relates to misuse of power, lack of jurisdiction and infringement of Articles 229 EC and 230 EC on the part of the Court of First Instance. That plea is divided into two parts.

               —

               The first part is based on the fact that the Court of First Instance failed to observe the limits of its jurisdiction under Articles 229 EC and 230 EC by varying the Commission's decision in relation to the method of calculation of the fine.

               —

               In the second part, the appellant complains that the Court of First Instance ruled ultra petita in amending the percentage reduction applied for attenuating circumstances and, consequently, increasing the amount of the fine imposed on the appellant.

         In the alternative, the appellant puts forward a second plea based on infringement of the rights of the defence and the principle of non-retroactivity of penalties. By failing to allow discussion on its intention to amend the method of calculation of the fine and increase the amount of the fine, the Court of First Instance acted in breach of a fundamental principle of Community law with a real impact on the ability of the appellant to defend itself. The Court of First Instance also retroactively applied to the ‘Belgian Beer’ decision of 2001 case-law dating from 2003, clarifying the method of applying the weighting for attenuating circumstances in the method of calculation of the fine.

      (1)  Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-62, p. 87).


title: Case C-311/16 P: Appeal brought on 20 May 2016 by Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 17 March 2016 in Case T-817/14, Zoofachhandel Züpke GmbH and Others v European Commission

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/23

         Appeal brought on 20 May 2016 by Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 17 March 2016 in Case T-817/14, Zoofachhandel Züpke GmbH and Others v European Commission
   (Case C-311/16 P)
   (2016/C 343/35)
   Language of the case: German

      Parties

      Appellants: Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG (represented by: E. Hauk, lawyer)

      Other party to the proceedings: European Commission
   This case was removed from the register of the Court by order of the Court of 20 July 2016.