title: JUDGMENT OF THE COURT (Sixth Chamber) of 12 October 1995 in Case C-236/94: Commission of the European Communities v. Kingdom of Belgium (Failure to fulfil obligations - Directive 91/339/EEC - Non-transposition)

text:
 11 . 11 . 95           tN                   Official Journal of the European Communities                                   No C 299/7
2 . Council Directive 92/106/EEC of 7 December 1992 on                        of Article 5 (1 ) (a), is not applicable to customs
      the establishment of common rules for certain types of                  transactions in respect of goods from non-member
      combined transport of goods between Member States                       countries , in particular members of EETA ;
      does not apply to combined transport of goods between
      third   countries   and    Member     States  and      Council
                                                                         2 . the Member States are not entitled unilaterally to impose
      Regulation (EEC) No 4055/86 of 22 December 1986                         charges having equivalent effect in trade with
      applying the principle of freedom to provide services                   non-member countries. Where the prohibition of such
      to maritime transport between Member States and                         charges is contained in bilateral or multilateral
      between Member States and third countries does not
                                                                              agreements concluded by the Community with one or
      apply to the transportation by road of goods unloaded                   more non-member countries with a view to eliminating
      from the vessel.                                                        obstacles to trade and in the Council Regulations
                                                                              providing for common organization of the markets in
(') O J No C 146 , 28 . 5 . 1994 .                                            various agricultural products regarding trade with
                                                                              non-member countries, the scope of that prohibition is
                                                                              the same as in the case of intra - Community trade.
                                                                         (') OJ No C : 174 , 25 . 6 . 1994 .
                JUDGMENT OF THE COURT
                         ( Sixth Chamber )
                        of 5 October 1995
in Case C-125 /94 ( reference for a preliminary ruling from                              JUDGMENT OF THE COURT
the Giudice Conciliatore, Milan ): Aprile Srl, in liquidation ,                                    ( Sixth Chamber )
        v. Amministrazione delle Finanze dello Stato (')
                                                                                of 12 October 1995
(Charges having equivalent effect — Prohibition —
 Whether applicable to trade with non-member countries)                  in    Case C-236/94 : Commission of the European
                           ( 95/C 299/ 10 )
                                                                                Communities v. Kingdom of Belgium (')
                                                                         (Failure to fulfil obligations — Directive 91/339/EEC —
                                                                                Non-transposition)
                 (Language of the case: Italian)
                                                                                ( 95 /C 299/ 1 1 )
(Provisional translation; the definitive translation will be
           published in the European Court Reports)                                         (Language of the case: French)
In Case C - 125 /94 : reference to the Court under Article 177           (Provisional translation; the definitive translation will be
of the EEC Treaty from the Giudice Conciliatore                                     published in the European Court reports)
(Judge-Conciliator ), Milan , for a preliminary ruling in the
proceedings pending before that court between Aprile Sri , in            In Case C-236/94 : Commission of the European
liquidation , and Amministrazione delle Finanze dello Stato              Communities ( Agent: Hendrik van Eier ) v. Kingdom of
— on the interpretation of Articles 3 ( a ) and ( h ), 5 , 9 , 11 , 12 , Belgium ( Agent: Jan Devadder ) — application for a
13 , 16 and 189 of the EEC Treaty and Council Directive                  declaration that, by not adopting and, in the alternative, by
83 /643 /EEC of 1 December 1983 on the facilitation of                   not communicating to the Commission within the
physical inspections and administrative formalities in                   prescribed period the laws, regulations and administrative
respect of the carriage of goods between Member States ( OJ              provisions necessary to comply with Council Directive
 1983 L 359 , p. 8 ), as amended by Council Directive                    91 /339/EEC of 18 June 1991 amending for the 11th time
87/53/EEC of 15 December 1986 ( OJ 1987 L 24 , p. 33 ) —                 Directive 76/769/EEC on the approximation of the laws,
the Court ( Sixth Chamber ), composed of F. A. Schockweiler              regulations and administrative provisions of the Member
( Rapporteur ), President of the Chamber, C. N. Kakouris,                States relating to restrictions on the marketing and use of
J. L. Murray , G. Hirsch and H. Ragnemalm, Judges;                       certain dangerous substances and preparations ( OJ 1991
D. Ruiz-Jarabo Colomer, Advocate-General ; L. Hewlett,                    L 1 86 , p. 64 ), the Kingdom of Belgium has failed to fulfil its
Administrator, for the Registrar, has given a judgment on                obligations under the EC Treaty — the Court ( Sixth
5 October 1995 , in which it rules :                                     Chamber ), composed of C. N. Kakouris , President of the
                                                                         Chamber, G. Hirsch ( Rapporteur ), G. F. Mancini , F. A.
                                                                         Schockweiler and P. J. G. Kapteyn , Judges ; G. Tesauro,
 1 . without prejudice to the application of special                     Advocate-General ; R. Grass, Registrar, has given a
      Community provisions in force governing trade with                 judgment on 12 October 1995 , in which it:
      certain   non-member countries,         Council Directive
      83/643 /EEC of 1 December 1983 on the facilitation of
      physical inspections and administrative formalities in              1 . declares that, by not adopting within the prescribed
      respect of the carriage ofgoods between Member States,                  period the laws, regulations and administrative
      as amended by Council Directive 87/53/EEC of                            provisions necessary to comply with Council Directive
       15 December 1986 , in particular the second indent                      91 /339/EEC of 18 June 1991 amending for the 11th
 ---pagebreak--- No C 299/ 8            EN                   Official Journal of the European Communities                                      11 . 11 . 95
     time Directive 76/769/EEC on the approximation of the                  control of classical swine-fever, the Italian Republic has
     laws, regulations and administrative provisions of the                 failed to fulfil its obligations under Article 2 of Directive
     Member States relating to restrictions on the marketing                91 /685;
     and use of certain dangerous substances and
     preparations, the Kingdom ofBelgium has failed to fulfil          2 . orders the Italian Republic to pay the costs.
     its obligations under the EC Treaty;
                                                                       (') OJ No C 304 , 29 . 10 . 1994 .
2 . orders the Kingdom of Belgium to pay the costs.
(') OJ No C 275 , 1 . 10 . 1994 , p . 21 .
                                                                       Action brought on 14 August 1995 by Hedwig
                                                                       Kuchlenz-Winter against the Commission of the European
                                                                                Communities
                                                                                ( Case C-281 /95 )
                                                                                ( 95/C 299/ 13 )
               JUDGMENT OF THE COURT
                        ( Sixth Chamber )                              An action against the Commission of the European
                      of 12 October 1995                               Communities was brought before the Court of Justice of the
                                                                       European Communities on 14 August 1995 by Hedwig
in    Case    C-257/94 :     Commission      of the    European        Kuchlenz-Winter, residing at Domaine du Brameschhof 35 ,
              Communities v. Italian Republic (')                      L-8290 Kehlen , represented by Dieter Rogalla ,
(Failure by a Member State to fulfil its- obligations —                Rechtsanwalt, Eicklohken 19 , D-45549 Sprockhovel , with
        Directive 91/685/EEC — Failure to transpose)                   an address for service in Luxembourg at the Chambers of
                          ( 95 /C 299/ 12 )                            Armin Machmer, Rue Roger Barthel 1 , L-7212
                                                                       Bereldange .
                 ( Language of the case: Italian)                      The applicant claims that the Court should :
(Provisional translation; the definitive translation will be           — declare that the Commission has unlawfully failed to act
          published in the European Court Reports)                          in relation to the applicant, inasmuch as, following the
                                                                            pension rights adjustment effected in her favour
                                                                            pursuant to paragraph 1587 et seq. of the Biirgerliches
In    Case    C-257/94 :     Commission      of the    European             Gesetzbuch ( German Civil Code ), the applicant should
                                                                            not have been excluded from the sickness insurance
Communities ( Agent: Eugenio de March ) v. Italian Republic
( Agents : Umberto Leanza and Maurizio Fiorilli ) —                         scheme, which the defendant prevented by unlawfully
application for a declaration that, by not adopting within                  failing to propose to the competent EC institutions the
the prescribed period the laws, regulations and                             corresponding amendments to the Staff Regulations of
administrative provisions necessary to comply with Council                  Officials ,
Directive 91 /685/EEC of 11 December 1991 amending
Directive 80/217/EEC introducing Community measures                    — order the defendant to pay the costs .
for the control of classical swine-fever ( OJ 1991 L377,p . 1 )
and with Council Directive 91 /688/EEC of 11 December                  Pleas in law and main arguments adduced in support:
 1991 amending Directive 72/462/EEC on health and
veterinary inspection problems upon importation of bovine ,            The applicant considers that the Commission is under an
ovine and caprine animals and swine , fresh meat or meat               obligation to cause the Rules on Sickness Insurance for
products from third countries ( OJ 1991 L 377, p. 18 ), the            Officials to be amended so as to provide that the divorced
 Italian Republic has failed to fulfil its obligations under the       spouse of an official who is entitled , in consequence of a
 EC Treaty — the Court ( Sixth Chamber ), composed of C. N.            pension rights adjustment effected pursuant to paragraph
 Kakouris, President of the Chamber, E. A. Schockweiler,                1587 et seq . of the German Civil Code , to part of the
 P. J. G. Kapteyn, J. L. Murray and H. Ragnemalm                        retirement pension of his or her former spouse should
 ( Rapporteur ), Judges; M. B. Elmer , Advocate-General ;              continue to enjoy the benefit of sickness insurance . She
 R. Grass, Registrar, has given a judgment on 12 October                maintains in particular that, in the absence of such a rule, she
 1995 , in which it:                                                    is obliged for practical purposes to remain in Luxembourg,
                                                                        since it is only there — by contrast with Germany — that she
                                                                        may voluntarily become a member of a statutory sickness
 1 . declares that, by not adopting within the prescribed               insurance scheme ; she regards this as constituting a breach
      period the laws, regulations and administrative                   of her right to freedom of movement .
      provisions necessary to comply with Council Directive
      91 /685/EEC of 1 1 December 1991 amending Directive
      80/217/EEC introducing Community measures for the


title: Case T-215/07 R: Order of 15 November 2007 of the Judge hearing the application for interim measures — Donnici v Parliament (Application for interim measures — Decision of the European Parliament — Verification of the credentials of elected members — Invalidation of a parliamentary mandate resulting from the application of national electoral law — Application for a suspension of operation — Admissibility — Prima facie case — Urgency — Balancing of interests)

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/16

         Order of 15 November 2007 of the Judge hearing the application for interim measures — Donnici v Parliament
   (Case T-215/07 R)
   (Application for interim measures - Decision of the European Parliament - Verification of the credentials of elected members - Invalidation of a parliamentary mandate resulting from the application of national electoral law - Application for a suspension of operation - Admissibility - Prima facie case - Urgency - Balancing of interests)
   (2008/C 8/31)
   Language of the case: Italian
   Parties

      Applicant: Beniamino Donnici (Castrolibero, Italy) (represented by: M. Sanino, G.M. Roberti, I. Perego and P. Salvatore, lawyers)

      Defendant: European Parliament (represented by: H. Krück, N. Lorenz and A. Caiola, Agents)

      Intervener in support of the applicant: Italian Republic (represented by: I. Braguglia, Agent, and P. Gentili, lawyer)

      Intervener in support of the defendant: Achille Occhetto (Rome, Italy) (represented by: P. De Caterini and F. Paola, lawyers)
   Re:
   Application for a suspension of the operation of the decision of the European Parliament of 24 May 2007 on the verification of the credentials of Beniamino Donnici [2007/2121(REG)] until the Court has ruled on the action in the main proceedings.
   Operative part of the order

               1.

               The operation of the decision of the European Parliament of 24 May 2007 on the verification of the credentials of Beniamino Donnici [2007/2121(REG)] is suspended.

               2.

               Costs are reserved.


title: Case F-83/12: Judgment of the Civil Service Tribunal (Third Chamber) of 12 February 2014 — Bodson and Others v EIB (Civil service — EIB staff — Contractual nature of the employment relationship — Remuneration — Reform of the EIB awards scheme)

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/26

         Judgment of the Civil Service Tribunal (Third Chamber) of 12 February 2014 — Bodson and Others v EIB
   (Case F-83/12) (1)

   (Civil service - EIB staff - Contractual nature of the employment relationship - Remuneration - Reform of the EIB awards scheme)
   2014/C 85/43
   Language of the case: French

      Parties

      Applicants: Jean-Pierre Bodson and Others (Luxembourg, Luxembourg) (represented by: L. Levi, lawyer)

      Defendant: European Investment Bank (represented by: C. Gómez de la Cruz, T. Gilliams and G. Nuvoli, acting as Agents, and P.E. Partsch, lawyer)

      Re:

   First, application for annulment of the decisions to distribute awards to the applicants pursuant to the new performance system resulting from the decision of 14 December 2010 of the Board of Directors and the decisions of 9 November 2010 and 16 November 2011 of the Management Committee and, second, subsequent application for the defendant to be ordered to pay the difference in remuneration, and damages.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr Bodson and the seven other applicants whose names are listed in the annex to bear their own costs and to pay those incurred by the European Investment Bank.

      (1)  OJ C 295, 29.9.2012, p. 34.


title: Case T-115/05: Action brought on 28 February 2005 by José Jiménez Martinez against the Commission of the European Communities

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/33

         Action brought on 28 February 2005 by José Jiménez Martinez against the Commission of the European Communities
   (Case T-115/05)
   (2005/C 115/60)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 February 2005 by José Jiménez Martinez, residing in Brussels, represented by Eric Boigelot, lawyer.
   The applicant claims that the Court should:

               1.

               annul the Invalidity Committee's decision of 21 April 2004 refusing the applicant's request of 19 January 2004 to be declared invalid, notified by memo of 27 April 2004,

               2.

               annul the Invalidity Committee's decision of 22 July 2004 granting a declaration of invalidity, in so far as the effect of the declaration of invalidity is not retroactive to 21 April 2004,

               3.

               grant the applicant compensation for material and non-material damage assessed on an equitable basis at EUR 222 568, subject to increase in the course of the proceedings,

               4.

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant in this case objects to the defendant's decision to grant his declaration of invalidity for three years from 1 September 2004 without providing for retroactive effect to 21 April 2004, the date on which the Invalidity Committee took an initial adverse decision in regard to him.
   In support of his claims, the applicant pleads:

               —

               infringement of Article 7 of Annex II to the Staff Regulations and of the rules relating to the operation of the Invalidity Committee. He maintains in that regard that two of the three doctors comprising the Invalidity Committee had no knowledge either of his illness or of his state of health,

               —

               in this case, the Committee made a manifest error of assessment regarding the nature of his illness. It is stated in that regard that the Invalidity Committee took no account whatsoever of the existence of an illness different from sleeping disorders, namely the chronic fatigue previously diagnosed,

               —

               failure to comply with the obligation to state reasons,

               —

               infringement of Articles 53 and 78 of the Staff Regulations and of Articles 13 to 18 of Annex VIII to those regulations,

               —

               breach of the principle of good administration and sound management and breach of the duty to have regard for the welfare of officials.


title: Reference for a preliminary ruling by the Liverpool Industrial Tribunal, by order of that court of 28 April 1997, in the case of Donna Marie Davies against Girobank plc (Case C-197/97)

text:
No C 212/20              EN                  Official Journal of the European Communities                                       12 . 7. 97
Communities, represented by Paolo Stancanelli, of its                   3.   refer the action back to the Court of First Instance for
Legal Service, acting as Agent, with an address for service                  determination on the merits;
in Luxembourg at the office of Carlos Gomez de la Cruz,
also of its Legal Service, Wagner Centre, Kirchberg.                    4 . order the Commission to pay the costs of the
                                                                             interlocutory dispute .
The applicant claims that the Court should :
                                                                        Pleas in law and main arguments adduced in support:
— declare that, by failing to adopt and notify within the
      prescribed period the provisions necessary to transpose
      into its domestic legal system Council Directive 91/              The contested order states, contrary to the appellant's
      676/EEC of 12 December 1991 concerning the                        express intention, that the real object of the appellant's
      protection of waters against pollution caused by                  action was a declaration that the Federal Republic of
      nitrates from agricultural sources ('), and in particular         Germany has infringed the Treaty through the case-law
      by failing to comply with the obligation laid down in             of its courts, and that the appellant has thereby suffered
      Article 3 ( 2 ) of that Directive, the Italian Republic has       loss . That reinterpretation is factually unjustified and
      failed to fulfil its obligations under Community law,             procedurally inadmissible .
— order the Italian Republic to pay the costs of the
      proceedings.
Pleas in law and main arguments adduced in support:
                                                                        Reference for a preliminary ruling by the Liverpool
                                                                        Industrial Tribunal, by order of that court of 28 April
 Article 189 of the EC Treaty, which provides that a                    1997, in the case of Donna Marie Davies against
 Directive is binding, as to the result to be achieved, upon                                          Girobank pic
 each Member State to which it is addressed, implies an
 obligation on Member States to respect the time limits for                                        ( Case C-197/97)
 transposition laid down in Directives . That time limit                                             ( 97/C 212/38 )
 passed without the Italian Republic having adopted the
 measures necessary to comply with the Directive referred
 to in the form of order sought by the Commission.                      Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Liverpool
 0 ) OJ No L 375 , 31 . 12 . 1991 , p . 1 .                             Industrial Tribunal of 28 April 1997, which was received
                                                                         at the Court Registry on 23 May 1997, for a preliminary
                                                                         ruling in the case of Donna Marie Davies against
                                                                         Girobank pic, on the following questions :
                                                                         1 . Are all or any of the following contractual provisions
 Appeal brought on 21 May 1997 by Intertronic F.                              contrary to the principle of equal pay for equal work
 Cornelis GmbH against the order made on 19 February                          under Article 119 of the EC Treaty so far as they
  1997 by the Third Chamber of the Court of First Instance                    affect a woman who has returned to work after taking
 of the European Communities in Case T- 11 7/96 between                       maternity leave to which she was entitled:
 Intertronic F. Cornelis GmbH and the Commission of the
                       European Communities                                   ( a ) a provision whereby entitlement to a pension
                          ( Case C-196/97 P)                                         ( under a final salary pension scheme ) is calculated
                                                                                according to a formula which includes a factor
                             ( 97/C 212/37 )                                         representing pensionable service, where that
                                                                                pensionable service does not accrue during any
  An appeal against the order made on 19 February 1997                               period of unpaid leave (which term includes a
  by the Third Chamber of the Court of First Instance of the                         period of unpaid maternity leave when the woman
  European Communities in Case T-l 17/96 between                                     is no longer in receipt of the contractual or
  Intertronic F. Cornelis GmbH and the Commission of the                             statutory maternity pay ) when the employee does
  European Communities was brought before the Court of                               not pay contributions into the employer's
  Justice of the European Communities on 21 May 1997 by                              contributory pension scheme ;
  Intertronic F. Cornelis GmbH, Emden ( Germany ),
  represented by Detlef Schumacher and Wilhelm Wiltfang,                       ( b ) a practice whereby entitlement to a pension ( under
  Rechtsanwalte, Bremen.                                                              a final salary pension scheme ) is calculated
                                                                                according to a formula which includes a factor
                                                                                representing final pensionable salary, which means
  The appellant claims that the Court should:
                                                                                whichever is the greater of ( i ) the amount of the
                                                                                employee's pensionable salary paid during the
   1.  set aside the order of the Court of First Instance                             period of 12 months ending on the last day of her
       (Third Chamber ) of 19 February 1997;                                          employment, and ( ii ) the highest amount of
                                                                                pensionable salary received by the employee during
  2 . declare the action admissible;                                                  any one of the last five complete tax years before
 ---pagebreak--- 12 . 7. 97                EN                Official Journal of the European Communities                                 No C 212/21
           the last day of her employment, with the result             Action brought on 23 May 1997 by the Commission of
           that employees who took unpaid leave ( including            the European Communities against the Federal Republic
           unpaid maternity leave ) during the periods referred                                       of Germany
           to would usually have a lower final pensionable                                        ( Case C-198/97)
           salary than they would have had if they had not
           taken such unpaid leave;                                                                 ( 97/C 212/39 )
     (c ) a provision whereby entitlement to a voluntary               An action against the Federal Republic of Germany was
           redundancy payment is calculated according to a             brought before the Court of Justice of the European
           formula which includes a factor representing                Communities on 23 May 1997 by the Commission of the
           service ( which is calculated as pensionable service        European Communities, represented by Claudia Schmidt,
           under the pension scheme plus any period of                 of its Legal Service, assisted by Alexander Bohlke,
           actual service before joining the scheme ), where           Rechtsanwalt, with an address for service in Luxembourg
           that service does not accrue during any period of           at the office of Carlos Gomez de la Cruz, of the
           unpaid leave (which term includes a period of               Commission's Legal Service, Wagner Centre, Kirchberg.
           unpaid maternity leave when the woman is no
           longer in receipt of contractual or statutory               The applicant claims that the Court should:
           maternity pay ) when the employee does not pay
           contributions into the employer's contributory              ( a ) declare the Federal Republic of Germany in breach of
           pension scheme;                                                   its obligations under Articles 4 ( 1 ) and 6 ( 1 ) of
                                                                             Council Directive 76/ 160/EEC of 8 December 1975
     ( d ) a practice whereby entitlement to a voluntary                     concerning the quality of bathing water ( OJ No L 31 ,
           redundancy payment is calculated according to a                   5 . 2 . 1976, p. 1 ) in that, in relation to the original
                                                                             Bundeslander:
           formula which includes a factor representing a
           week's pay, where the amount of a week's pay is                   — it failed to take the necessary measures to ensure
           based on final pensionable salary as mentioned in                      that, within 10 years following notification of the
           ( b) above, with the result that an employee who                       Directive on 10 December 1975 , the quality of
           took unpaid leave ( including unpaid maternity                         bathing water conformed to the limit values set in
           leave ) during the period of 12 months ending on                       accordance with Article 3 thereof,
           the last day of her employment would receive a
           lower redundancy payment than she would have                      — and failed to carry out sampling operations with
           had if she had not taken such unpaid leave ?                           the minimum frequency laid down in the Annex to
                                                                                the Directive .
2 . What difference, if any, would it make to the answer
                                                                       ( b ) order the Federal Republic of Germany to pay the
     to question 1 , if the woman were entitled to continue                  costs .
     to accrue pensionable service during a period of
     unpaid maternity leave by paying:                                 Pleas in law and main arguments adduced in support:
     ( a ) a member's contributions; or                                — Infringement of Article 4 ( 1 ) of the Directive:
     ( b ) a member's and the employer's contributions to                    The statistics provided by the Federal Republic of
           the pension scheme ?                                              Germany, as contained in the published annual reports
                                                                             to the Commission pursuant to Article 13 of the
3 . What difference, if any, does it make to the answer to                   Directive, show that in the Federal Republic of
     question 1 , or any part thereof, if a considerably                     Germany a large proportion of bathing water still does
     greater proportion of female employees than of male                     not comply with the mandatory limit values laid down
     employees have had their pay ( whether entitlement to                   by the Directive . It can be deduced from the report to
     a pension or a voluntary redundancy payment )                           the Commission on the 1995 bathing season that, of
     reduced because they have taken unpaid leave                            the 446 coastal bathing areas, 11,9% do not satisfy
     ( including unpaid maternity leave )?                                   the limits in the Directive . Taking into account the
                                                                             further consideration that 6,5 % of bathing areas on
                                                                             the German coasts have not been sufficiently
4 . Is it contrary to the principle of equal pay for equal                   monitored, these figures are significant. The situation
     work if a woman on maternity leave, having received                     regarding the 1 822 German inland bathing areas is
     the contractual and/or statutory maternity pay to                       even worse . Whilst only 10,3% fail to comply with
     which       she   is   entitled under   her    contract   of
                                                                             the limit values, 42,5 % of them have not been
     employment and/or national legislation, does not                        sufficiently monitored .
     receive any further contractual maternity pay in
     circumstances where an employee who is absent from                      It is irrelevant, even if true, that, if the proposal for
     work by reason of sickness, for the same period as the                  amendment by the Commission were to be accepted
     woman is absent from work on maternity leave to                         by the Council, and if, in particular, the 'total
     which she is entitled, would receive contractual sick                   coliform' microbiological parameter were to disappear
     pay ?                                                                   and be replaced by a mandatory limit value for
                                                                             Streptococcus faec., part of the infringements
                                                                             ascertained would become nugatory.


title: Judgment of the Court (Fifth Chamber) of 7 January 2004 in Case C-201/02 (Reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court): The Queen on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions (Directive 85/337/EEC — Assessment of the effects of certain projects on the environment — National measure granting consent for mining operations without an environmental impact assessment being carried out — Direct effect of directives Triangular situation)

text:
C 47/8                    EN                         Official Journal of the European Union                                             21.2.2004
Regulation (EC) No 241/1999 of 25 January 1999 (OJ                           interpretation of Article 6(1)(b) of First Council Directive 89/
1999 L 27, p. 1), the Court (Fifth Chamber), composed of:                    104/EEC of 21 December 1988 to approximate the laws of
D.A.O. Edward (Rapporteur), acting for the President of the                  the Member States relating to trade marks (OJ 1989 L 40,
Fifth Chamber, A. La Pergola and P. Jann, Judges; D. Ruiz-                   p. 1), the Court (Fifth Chamber), composed of: P. Jann, acting
Jarabo Colomer, Advocate General; R. Grass, Registrar, has                   for the President of the Fifth Chamber, C.W.A. Timmermans
given a judgment on 7 January 2004, in which it has ruled:                   and D.A.O. Edward (Rapporteur), Judges; C. Stix-Hackl, Advo-
                                                                             cate General; M.-F. Contet, Principal Administrator, for the
1.    Articles 2 and 11 of Council Regulation (EC) No 3295/94 of             Registrar, has given a judgment on 7 January 2004, in which
      22 December 1994 laying down measures concerning the entry             it has ruled:
      into the Community and the export and re-export from the
      Community of goods infringing certain intellectual property            Article 6(1)(b) of First Council Directive 89/104/EEC of 21 Decem-
      rights, as amended by Council Regulation (EC) No 241/1999              ber 1988 to approximate the laws of the Member States relating to
      of 25 January 1999, are applicable to situations in which              trade marks is to be interpreted as meaning that, where there exists a
      goods in transit between two countries not belonging to the            likelihood of aural confusion between a word mark registered in one
      European Community are temporarily detained in a Member                Member State and an indication, in the course of trade, of the
      State by the customs authorities of that State.                        geographical origin of a product originating in another Member
                                                                             State, the proprietor of the trade mark may, pursuant to Article 5 of
2.    The duty to interpret national law so as to be compatible with         Directive 89/104, prevent the use of the indication of geographical
      Community law, in the light of its wording and purpose, in             origin only if that use is not in accordance with honest practices in
      order to attain the aim pursued by the latter, cannot, of itself       industrial or commercial matters. It is for the national court to carry
      and independently of a law adopted by a Member State, have             out an overall assessment of all the circumstances of the particular
      the effect of determining or aggravating the liability in criminal     case in that regard.
      law of an entity which has failed to meet the requirements of
      Regulation No 3295/94.
                                                                             (1) OJ C 144 of 15.6.2002.
(1) OJ C 131 of 1.6.2002.
                   JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                            (Fifth Chamber)
                                                                                (Fifth Chamber)
                           of 7 January 2004
                                                                                of 7 January 2004
in Case C-100/02 (Reference for a preliminary ruling from
the Bundesgerichtshof): Gerolsteiner Brunnen GmbH &
                                                                             in Case C-201/02 (Reference for a preliminary ruling from
                       Co. v Putsch GmbH (1)
                                                                             the High Court of Justice (England & Wales), Queen’s
                                                                             Bench Division (Administrative Court): The Queen on
(Directive 89/104/EEC — Limitation of the effects of a trade                 the application of Delena Wells v Secretary of State for
mark in relation to indications concerning geographical                            Transport, Local Government and the Regions (1)
origin — Use of a geographical indication as a trade mark
as an element of use in accordance with ‘honest practices in
                 industrial or commercial matters’)                          (Directive 85/337/EEC — Assessment of the effects of
                                                                             certain projects on the environment — National measure
                                                                             granting consent for mining operations without an environ-
                             (2004/C 47/13)
                                                                             mental impact assessment being carried out — Direct effect
                                                                                of directives Triangular situation)
                     (Language of the case: German)
                                                                                (2004/C 47/14)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)
                                                                                (Language of the case: English)
In Case C-100/02: Reference to the Court under Article 234
EC by the Bundesgerichtshof (Germany) for a preliminary
ruling in the proceedings pending before that court between                  In Case C-201/02: Reference to the Court under Article 234
Gerolsteiner Brunnen GmbH & Co. and Putsch GmbH, on the                      EC by the High Court of Justice of England and Wales, Queen’s
 ---pagebreak--- 21.2.2004                 EN                           Official Journal of the European Union                                                    C 47/9
Bench Division (Administrative Court), for a preliminary ruling                                  JUDGMENT OF THE COURT
in the proceedings pending before that court between The
Queen on the application of Delena Wells and Secretary of
                                                                                (Fifth Chamber)
State for Transport, Local Government and the Regions, on
the interpretation of Council Directive 85/337/EEC of 27 June
1985 on the assessment of the effects of certain public                                                of 11 December 2003
and private projects on the environment, the Court (Fifth
Chamber), composed of: P. Jann (Rapporteur), acting for the
President of the Fifth Chamber, D.A.O. Edward and A. La                        in Case C-289/02 (Reference for a preliminary ruling from
Pergola, Judges; P. Léger, Advocate General; L. Hewlett, Princi-               the Oberlandesgericht München): AMOK Verlags GmbH
pal Administrator, for the Registrar, has given a judgment on                                   v A & R Gastronomie GmbH (1)
7 January 2004, in which it has ruled:
                                                                               (Freedom to provide services — Lawyer established in
                                                                               one Member State working in conjunction with a lawyer
1.    Article 2(1) of Council Directive 85/337/EEC of 27 June                  established in another Member State — Legal costs to be
      1985 on the assessment of the effects of certain public and              reimbursed by the unsuccessful party in a dispute to the
      private projects on the environment, read in conjunction with                                successful party Limitation)
      Article 4(2) thereof, is to be interpreted as meaning that, in the
      context of applying provisions such as section 22 of the
      Planning and Compensation Act 1991 and Schedule 2 to that                                             (2004/C 47/15)
      Act, the decisions adopted by the competent authorities, whose
      effect is to permit the resumption of mining operations,                                     (Language of the case: German)
      comprise, as a whole, a ‘development consent’ within the
      meaning of Article 1(2) of that directive, so that the competent
      authorities are obliged, where appropriate, to carry out an              (Provisional translation; the definitive translation will be published
      assessment of the environmental effects of such operations.                                   in the European Court Reports)
      In a consent procedure comprising several stages, that assess-
      ment must, in principle, be carried out as soon as it is possible
      to identify and assess all the effects which the project may have        In Case C-289/02: Reference to the Court under Article 234 EC
      on the environment.                                                      by the Oberlandesgericht München (Germany) for a prelimi-
                                                                               nary ruling in the proceedings pending before that court
2.    In circumstances such as those of the main proceedings, an               between AMOK Verlags GmbH and A & R Gastronomie
      individual may, where appropriate, rely on Article 2(1) of               GmbH, on the interpretation of Articles 12 EC and 49 EC, the
      Directive 85/337, read in conjunction with Articles 1(2) and             Court (Fifth Chamber), composed of: P. Jann (Rapporteur),
      4(2) thereof.                                                            acting for the President of the Fifth Chamber, A. La Pergola
                                                                               and S. von Bahr, Judges; J. Mischo, Advocate General; M.-
                                                                               F. Contet, Principal Administrator, for the Registrar, has given
3.    Under Article 10 EC the competent authorities are obliged to
                                                                               a judgment on 11 December 2003, in which it has ruled:
      take, within the sphere of their competence, all general or
      particular measures for remedying the failure to carry out an
      assessment of the environmental effects of a project as provided         1.    Article 49 EC, Article 50 EC and Council Directive 77/249/
      for in Article 2(1) of Directive 85/337.                                       EEC of 22 March 1977 to facilitate the effective exercise by
                                                                                lawyers of freedom to provide services must be interpreted as not
      The detailed procedural rules applicable in that context are a                 precluding a judicial rule of a Member State limiting to the
      matter for the domestic legal order of each Member State, under                level of the fees which would have resulted from representation
      the principle of procedural autonomy of the Member States,                     by a lawyer established in that State the reimbursement, by an
      provided that they are not less favourable than those governing                unsuccessful party in a dispute to the successful party, of costs
      similar domestic situations (principle of equivalence) and that                in respect of the services provided by a lawyer established in
      they do not render impossible in practice or excessively difficult             another Member State.
      the exercise of rights conferred by the Community legal order
      (principle of effectiveness).                                            2.    Article 49 EC and Directive 77/249 must, however, be
                                                                                construed as precluding a judicial rule of a Member State which
      In that regard, it is for the national court to determine whether
                                                                                provides that the successful party to a dispute, in which that
      it is possible under domestic law for a consent already granted
                                                                                party has been represented by a lawyer established in another
      to be revoked or suspended in order to subject the project to an
                                                                                Member State, cannot recover from the unsuccessful party, in
      assessment of its environmental effects, in accordance with the
                                                                                addition to the fees of that lawyer, the fees of a lawyer practising
      requirements of Directive 85/337, or alternatively, if the
                                                                                before the court seised of the dispute who, under the national
      individual so agrees, whether it is possible for the latter to claim
                                                                                legislation in question, was required to work in conjunction
      compensation for the harm suffered.
                                                                                with the first lawyer.
(1) OJ C 180 of 27.7.2002.                                                     (1) OJ C 261 of 26.10.2002.


title: Case C-428/12: Judgment of the Court (Fifth Chamber) of 3 April 2014  — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Articles 34 TFEU and 36 TFEU — Measures of equivalent effect to quantitative restrictions on imports — Complementary private goods transport — The first vehicle of the fleet of a company — Rules for obtaining the road transport authorisation — Road safety and environmental protection)

text:
               26.5.2014

               EN

               Official Journal of the European Union

               C 159/5

         Judgment of the Court (Fifth Chamber) of 3 April 2014 — European Commission v Kingdom of Spain
   (Case C-428/12) (1)

   ((Failure of a Member State to fulfil obligations - Articles 34 TFEU and 36 TFEU - Measures of equivalent effect to quantitative restrictions on imports - Complementary private goods transport - The first vehicle of the fleet of a company - Rules for obtaining the road transport authorisation - Road safety and environmental protection))
   2014/C 159/06
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: I. Galindo Marin and G. Wilms, Agents)

      Defendant: Kingdom of Spain (represented by: J. García-Valdecasas Dorrego and Centeno Huerta, Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 34 TFEU and 36 TFEU — Granting of authorisations for motor vehicles — National legislation requiring, in order to obtain an ‘authorisation for private, own-account transport’, no more than five months to have elapsed since the first registration of the first heavy goods vehicle of an undertaking’s fleet

      Operative part of the judgment

   The Court:

               1)

               declares that by requiring, in Article 31 of Ministerial Decree FOM/734/2007 of 20 March 2007 implementing the Law on the Regulation of Inland Transport in respect of authorisations for the transport of goods by road for vehicles with a maximum authorised mass exceeding 3,5 tons, that, in order to obtain an authorisation for the private, own-account transport of goods, no more than five months must have elapsed since the first registration of the first vehicle of an undertaking’s fleet, the Kingdom of Spain has failed to fulfil its obligations under Article 34 TFEU;

               2)

               orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 379, 08.12.2012.


title: Case T-665/13: Action brought on 16 December 2013 — Zitro IP v OHIM — Gamepoint (SPIN BINGO)

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/13

         Action brought on 16 December 2013 — Zitro IP v OHIM — Gamepoint (SPIN BINGO)
   (Case T-665/13)
   2014/C 61/22
   Language in which the application was lodged: English

      Parties

      Applicant: Zitro IP Sàrl. (Luxembourg, Luxembourg) (represented by: A. Canela Giménez, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Gamepoint BV (The Hague, Netherlands)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 14 October 2013 given in Case R 1388/2012-4;

               —

               Order the defendant and the other party, should it intervene, to bear the costs of proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The coloured figurative mark in colours containing the verbal element ‘SPIN BINGO’ for goods and services in Classes 9, 41 and 42 — Community trade mark application No 9 545 658

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: The word mark ‘ZITRO SPIN BINGO’ for goods and services in Classes 9, 28 and 41 — Community trade mark registration No 9 058 868

      Decision of the Opposition Division: Upheld the opposition in part

      Decision of the Board of Appeal: Annuled the contested decision and rejected the opposition

      Pleas in law: Infringement of Article 8(1)(b) CTMR.


title: Case C-42/10: Reference for a preliminary ruling from the Raad van State (Belgium), lodged on 25 January 2010 — 1. Vlaamse Dierenartsenvereniging VZW, 2. Marc Janssens v Belgische Staat; intervener: Luk Vangheluwe

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/20

         Reference for a preliminary ruling from the Raad van State (Belgium), lodged on 25 January 2010 — 1. Vlaamse Dierenartsenvereniging VZW, 2. Marc Janssens v Belgische Staat; intervener: Luk Vangheluwe
   (Case C-42/10)
   2010/C 100/31
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

               Applicants

               :

               Vlaamse Dierenartsenvereniging VZW
               Marc Janssens

               Defendant

               :

               Belgische Staat

               Intervener

               :

               Luk Vangheluwe

      Questions referred

               1.

               Do Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation (EC) No 998/2003 (1) of the European Parliament and of the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC, and the articles of and annexes to Commission Decision 2003/803/EC (2) of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets preclude national legislation regulating passports for cats and ferrets from, on the one hand, referring to the model and the additional requirements laid down in the aforementioned Commission Decision of 26 November 2003, yet, on the other hand, also prescribing that every passport must bear a unique number consisting of 13 characters, namely, ‘BE’, being the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits, and a serial number consisting of nine digits?

               2.

               Do Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation (EC) No 998/2003 … and the articles of and annexes to … Decision 2003/803/EC … preclude national legislation from also using the model of the European pet passport as proof of both the identification and the registration of dogs and, in that connection, making provision for third parties to insert changes with regard to the identification of the owner and the animal in Parts I to III of a European pet passport attested by an authorised veterinarian by means of identification stickers which are superimposed on the previous identification details?

      (1)  OJ 2003 L 146, p. 1.

      (2)  OJ 2003 L 312, p. 1.


C 83/28                 EN                         Official Journal of the European Union                                      5.4.2003
        Removal from the register of Case T-43/01 (1)                      Communities ordered the removal from the register of Case
                                                                           T-288/01: OPI Products, Inc. v Office for Harmonisation in
                          (2003/C 83/59)                                   the Internal Market.
                    (Language of the Case: French)
                                                                           (1 ) OJ C 31 of 2.2.2002.
By order of 10 January 2003 the President of the Second
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case
T-43/01: Jean-Jacques Rateau v Commission of the European
Communities.
                                                                                Removal from the register of Case T-192/02 (1)
( 1) OJ C 118 of 21.4.2001.
                                                                                (2003/C 83/61)
                                                                                (Language of the Case: English)
        Removal from the register of Case T-288/01 (1)
                                                                           By order of 23 January 2003 the President of the Fourth
                          (2003/C 83/60)                                   Chamber of the Court of First Instance of the European
                                                                           Communities ordered the removal from the register of Case
                   (Language of the Case: English)                         T-192/02: G.D. Searle LLC v Office for Harmonisation in the
                                                                           Internal Market.
By order of 7 January 2003 the President of the Fourth
Chamber of the Court of First Instance of the European                     (1 ) OJ C 202 of 24.8.2002.


title: Case F-118/05: Action brought on  12 December 2005  — Klopfer v Commission

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/52

         Action brought on 12 December 2005 — Klopfer v Commission
   (Case F-118/05)
   (2006/C 60/96)
   Language of the case: German
   Parties

      Applicant: Matthias Klopfer (Berlin, Germany) (represented by: E. Pätzel)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Tribunal should:

               —

               annul Decision ADMIN.B.2/D (05) 18479/EGL-ade of the Director of the European Personnel Selection Office (EPSO) of 29 August 2005;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant took part in competition EPSO/B/11/03 to constitute a 'reserve pool of assistants in the field of production of publications: proofreading' in Grades B 5/B 4.
   The Selection Board for that competition decided to exclude the applicant from the competition as he had completed the necessary three-year period of professional experience only through part-time work, which, in the view of the Selection Board, did not fulfil the requirements.
   In support of his action, the applicant claims infringement of the principle of equal treatment laid down in Article 5 of the Staff Regulations. Furthermore, the wording of the notice of competition is, he argues, ambiguous in such a way that it also amounts to infringement of the principle that the administrative authorities are bound by the provision which they themselves have laid down.


title: Judgment of the Court of First Instance of 27 July 2005 in Joined Cases T-49/02 to T-51/02 Brassierie nationale SA (formerly Brasseries Funck-Bricher and Bofferding) and Others v Commission of the European Communities (Cartels — Luxembourg beer market — Fines)

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/13

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 27 July 2005
   in Joined Cases T-49/02 to T-51/02 Brassierie nationale SA (formerly Brasseries Funck-Bricher and Bofferding) and Others v Commission of the European Communities (1)

   (Cartels - Luxembourg beer market - Fines)
   (2005/C 229/25)
   Language of the case: French
   In Joined Cases T-49/02 to T-51/02: Brassierie nationale SA (formerly Brasseries Funck-Bricher and Bofferding), established in Bascharage (Luxembourg), represented by A. Carnelutti and L. Schiltz, lawyers, with an address for service in Luxembourg, Brasserie Jules Simon et Cie SCS, established in Wiltz (Luxembourg), represented by A. Carnelutti and J. Mosar, lawyers, Brasserie Battin SNC, established in Esch-sur-Alzette (Luxembourg), represented by A. Carnelutti and M. Santini, lawyers, against Commission of the European Communities (Agents: W. Wils and A. Bouquet, with an address for service in Luxembourg) — application, first, for annulment of Article 1 of Commission Decision 2002/759/EC of 5 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/37.800/F3 — Luxembourg Brewers) (OJ 2002 L 253, p. 21), in so far as it concerns the applicants, and, second, principally, annulment of Article 2 of that decision in so far as it imposes fines on the applicants and, in the alternative, a substantial reduction in the amount of those fines — the Court of First Instance (Second Chamber), composed of A.W.H. Meij, President, N.J. Forwood and I. Pelikánová, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 27 July 2005, in which it:

               1.

               Dismisses the application;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 109 of 4.05.2002.


title: Case T-200/12: Action brought on 9 May 2012 — Shannon Free Airport Development v Commission

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/22

         Action brought on 9 May 2012 — Shannon Free Airport Development v Commission
   (Case T-200/12)
   2012/C 258/41
   Language of the case: English

      Parties

      Applicant: Shannon Free Airport Development Co. Ltd (Shannon, Ireland) (represented by: S. Pappas, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the decision of the Contracts and Finance Section of the European Union Delegation to Ukraine, dated 28 February 2012, contested in the present action, given in the framework of tender EuropeAid/131567/C/SER/UA ‘Crimean tourism diversification and support project’; as well as subsequent decisions of the same authority and of the director of the DG Development of the European Commission;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an infringement of the essential procedural requirement to state reasons, as:

                           —

                           Case-law and legislation impose a duty on the defendant to elaborate on the advantages of the selected tender clearly, instead of merely contesting the evidence the applicant brings forward; a good administration has to examine the truth of it and address the allegations correctly, all the more so when various aggravating factors intensify this requirement.

               2.

               Second plea in law, alleging an infringement of the essential procedural requirement to respect the applicable procedure, as:

                           —

                           The evaluation procedure the Evaluation Committee was to follow was vitiated by irregularities, of which the defendant was aware and did not take into account prior to publishing the results. Thus, the subsequent decisions are unlawful, to the extent that they are based on the result of these irregularities.

               3.

               Third plea in law, alleging infringement of equal treatment and misuse of power, as:

                           —

                           The illegal procedure was only applied in the case of the consortium the applicant was part of, in breach of the principle of non-discrimination. It also appears that the sole purpose of the illegal procedure was to eliminate the applicant’s consortium from the first place in the evaluation list.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 17 September 1997 in Case C-322/95 (reference for a preliminary ruling from the Pretura Circondariale di Roma): Emanuele Iurlaro v. Istituto Nazionale della Previdenza Sociale (INPS) (Regulations (EEC) Nos 1408/71 and 574/72 - Invalidity benefits - Acquisition of entitlement to benefit - Reference period - Taking into account of periods of unemployment in another Member State)

text:
C 331 /4                EN                   Official Journal of the European Communities                                          1 . 11 . 97
     — Commission Directive 93/49/EEC of 23 June 1993                   Ragnemalm and R. Schintgen, Judges; N. Fennelly,
         setting out the schedule indicating the conditions             Advocate General; H. A. Riihl, Principal Administrator,
         to be met by ornamental plant propagating                      for the Registrar, has given a judgment on 16 September
         material and ornamental plants pursuant to                     1997, in which it has ruled:
         Council Directive 91 /682/EEC and
                                                                        On a proper construction, Article 9 (2) (e), third indent,
     — Commission Directive 93/61 /EEC of 2 July 1993                   of the Sixth Council Directive 77/388/EEC of 17 May
         setting out the schedules indicating the conditions            1977 on the harmonization of the laws of the Member
         to be met by vegetable propagating and planting                States relating to turnover taxes — Common system of
         material, other than seed pursuant to Council                  value added tax: uniform basis of assessment does not
         Directive 92/33/EEC,
                                                                        refer to the services of a member of an arbitration
                                                                        tribunal.
     the Federal Republic of Germany has failed to comply
     with its obligations under the first subparagraph of               (') OJ C 197, 6 . 7. 1996 .
     Article 10 (1 ) of Directive 93/48/EEC, the first                  ( 2 ) OJ L 145 , 13 . 6 . 1977, p . 1 .
     subparagraph of Article 8 (1 ) of Directive 93/49/EEC
     and the first subparagraph of Article 7 (1 ) of Directive
     93/61 /EEC.
2 . orders the Federal Republic of Germany to pay the
     costs .                                                                             JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
(') OJ C 197, 6 . 7. 1996 .
(2) OJ L 250, 7.  10 . 1993 , p . 1 .                                                             of 17 September 1997
(3) OJ L 250, 7.  10 . 1993 , p . 9 .
(4) OJ L 250 , 7. 10 . 1993 , p . 19 .                                  in Case C-322/95 (reference for a preliminary ruling from
                                                                        the Pretura Circondariale di Roma): Emanuele Iurlaro v.
                                                                              Istituto Nazionale della Previdenza Sociale (INPS) (')
                                                                        (Regulations (EEC) Nos 1408/71 and 574/72 — Invalidity
                                                                        benefits — Acquisition of entitlement to benefit —
                                                                        Reference period — Taking into account of periods of
               JUDGMENT OF THE COURT                                                 unemployment in another Member State)
                          ( Sixth Chamber)                                                            ( 97/C 331 /08 )
                       of 16 September 1997
                                                                                (Language of the case: Italian)
in Case C-145/96 ( reference for a preliminary ruling
from the Finanzgericht Rheinland-Pfalz, Neustadt an der
  Weinstrasse): Bernd von Hoffmann v. Finanzamt Trier (')                  (Provisional translation; the definitive translation will be
(Sixth VAT Directive — Interpretation of Article 9 (2) (e),                         published in the European Court Reports)
third indent — Services of an arbitrator — Place where
                       services are supplied)                           In Case C-322/95 : reference to the Court under Article 177
                            ( 97/C 331 /07 )                            of the EC Treaty by the Pretura Circondariale di Roma for
                                                                        a preliminary ruling in the proceedings pending before
                                                                        that      court   between        Emanuele      Iurlaro and    Istituto
                (Language of the case: German)                          Nazionale della Previdenza Sociale (INPS ), on the
                                                                        interpretation of Article 9a of Regulation ( EEC ) No 1408/
                                                                        71 of the Council of 14 June 1971 on the application of
  (Provisional translation; the definitive translation will be
                                                                        social security schemes to employed persons, to self
          published in the European Court Reports)
                                                                        employed persons and to members of their families
                                                                        moving within the Community (2 ), as amended and
In Case C-145/96 : reference to the Court under Article 177             updated by Council Regulation ( EEC ) No 2001 /83 of
of the EC Treaty from the Finanzgericht Rheinland-Pfalz                 2 June 1993 ( 3 ) and subsequently amended by Council
( Financial Court, Rhineland-Palatinate ), Neustadt an der              Regulation ( EEC ) No 2332/89 of 18 July 1989 (4 ), and of
Weinstrasse ( Germany), for a preliminary ruling in the                 Article 15 of Regulation ( EEC ) No 574/72 of the Council
proceedings pending before that court between Bernd von                 of 21 March 1972 laying down the procedure for
Hoffmann and Finanzamt Trier — on the interpretation of                 implementing Regulation ( EEC ) No 1408/71 ( 5 ), as
Article 9 ( 2 ) ( e ), third indent, of the Sixth Council               amended and updated by Regulation No 2001/83 , — the
Directive 77/388/EEC of 17 May 1977 on the                              Court ( Fifth Chamber) composed of: J. C. Moitinho de
harmonization of the laws of the Member States relating                 Almeida, ( Rapporteur), L. Sevon, D. A. O. Edward, P.
to turnover taxes — Common system of value added tax:                   Jann and M. Wathelet, Judges; Advocate General; P. Leger,
uniform basis of assessment ( 2 ) — the Court ( Sixth                   H. A. Riihl, Principal Administrator, gave a judgment on
Chamber), composed of: G. F. Mancini, President of the                   17 December 1997, the operative part of which is as
Chamber, C. N. Kakouris ( Rapporteur), G. Hirsch, H.                     follows :
 ---pagebreak--- 1.11.97                 I EN                     Official Journal of the European Communities                                       C 331/5
Articles 48 to 51 of the EC Treaty, Article 9a of                           Administrativo (Portugal ) for a preliminary ruling in the
Regulation (EEC) No 1408/71 of the Council of 14 June                       proceedings pending before that court between Fazenda
1971 on the application of social security schemes to                       Publica and Uniao das Cooperativas Abastecedoras de
employed persons, to self-employed persons and to                           Leite de Lisboa, UCRL (UCAL) on the interpretation of
members of their families moving within the Community,                      Articles 9, 12 and 95 of the EC Treaty and Article 33 of
as amended and updated by Council Regulation (EEC)                          the Sixth Council Directive ( 77/388/EEC ) of 17 May 1977
No 2001 /83 of 2 June 1983 and subsequently amended by                      on the harmonization of the laws of the Member States
Council Regulation (EEC) No 2332/89 of 18 July 1989,                        relating to turnover taxes — Common system of value
and Article 15 (1 ) (f) (ii) of Regulation (EEC) No 574/72                  added tax: uniform basis of assessment (2 ) — the Court
of the Council of 21 March 1972 laying down the                             ( Fifth Chamber) composed of: J. C. Moitinho de Almeida,
procedure for implementing Regulation (EEC) No 1408/                        President of the Chamber, L. Sevon, D. A. O. Edward, P.
71 , as amended and updated by Regulation (EEC)                             Jann and M. Wathelet ( Rapporteur), Judges; Advocate
No 2001 /83 must be interpreted as not requiring a                          General; G. Tesauro, Registrar: R. Grass, gave a judgment
Member State to extend the reference period laid down by                    on 17 December 1997, the operative part of which is as
its legislation for determining the minimum insurance                       follows :
requirement for the grant of an invalidity benefit by a
period equivalent to the periods of unemployment spent
by the person concerned under the legislation of another                    1 . ( a ) A charge levied without distinction on domestic
Member State which, unlike that of the first Member
State, allows such an extension where the periods of
                                                                                and imported products constitutes a charge having
                                                                                an effect equivalent to a customs duty, prohibited
unemployment are spent on national territory. Moreover,
                                                                                by Articles 9 and 12 of the Treaty, if the revenue
Articles 48 to 51 of the Treaty do not preclude the
                                                                                from it is intended to finance activities benefiting
legislation of a Member State from refusing to take into                                only the taxed domestic products and if the
account, for the purposes of calculating whether the
                                                                                resultant advantages fully offset the burden which
minimum insurance requirement attaching to the grant of
                                                                                the latter products bear; if those advantages only
an invalidity benefit is satisfied, periods of insurance
                                                                                partly offset the burden borne by the domestic
against unemployment completed during a given period
                                                                                products, the charge constitutes discriminatory
preceding the contingency insured against under the                                     internal taxation prohibited by Article 95 of the
legislation of another Member State, over and above those
                                                                                Treaty and must be reduced proportionally.
which are taken into account by the legislation of the first
Member State during that same period.
                                                                                ( b ) If the activities financed by the charge benefit
0    OJ C 351 , 30. 12 . 1995 .                                                         domestic products and taxed imported products
(2)  OJ English Special Edition 1971 ( II ), p. 416 .                                   but the former obtain a proportionally greater
(3)  OJ L 230, 22 . 8 . 1983 , p . 6 .                                                  advantage from them, the charge constitutes, to
(4 ) OJ L 224, 2 . 8 . 1989, p. 1 .
( 5) OJ English Special Edition 1972 (I), p. 159.                                       that extent, a charge having an effect equivalent to
                                                                                a customs duty or discriminatory internal taxation,
                                                                                depending on whether the advantage accruing to
                                                                                the taxed domestic products fully or only partly
                                                                                offsets the burden which they bear.
                JUDGMENT OF THE COURT                                       2. It is for the national court to undertake the
                            (Fifth Chamber)                                      verifications necessary for determining how the
                         of 17 September 1997                                    contribution in question is to be characterized in law.
                                                                                In so doing, it will consider:
in Case C-347/95 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Fazenda Pública v.
União das Cooperativas Abastecedoras de Leite de Lisboa,                          ( a ) whether the revenue from the charge is used for
                           UCRL ( UCAL) H                                               stabilization only of trade with the other Member
                                                                                States in the products on which the charge is
(National charge on the marketing of dairy products —                                   imposed;
Charge having equivalent effect — Internal taxation —
                             Turnover tax)
                             ( 97/C 331/09 )                                      ( b ) whether the institutional integration of the
                                                                                organizations representing the economic agents
                                                                                concerned and the implementation of the national
               (Language of the case: Portuguese)                                       and Community aid schemes and financial and
                                                                                fiscal incentives in favour of the agri-foodstuffs
   (Provisional translation; the definitive translation will be                         industry and the distribution of agri-foodstuffs, to
          published in the European Court Reports)                                      which part of the revenue from the charges in
                                                                                question is appropriated, benefit only domestic
                                                                                production or whether they benefit such
In    Case   C-347/95 — reference to the                Court under                     production proportionally more than imported
Article 177 of the Treaty by the Supremo Tribunal                                       products.


title: Case T-145/05: Action brought on 4 April 2005 by José Antonio de Brito Sequeiro Carvalho against the Commission of the European Communities

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/24

         Action brought on 4 April 2005 by José Antonio de Brito Sequeiro Carvalho against the Commission of the European Communities
   (Case T-145/05)
   (2005/C 155/47)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 4 April 2005 by José Antonio de Brito Sequeiro Carvalho, residing in Lisbon, represented by Karel Hartog Hagenaar, lawyer.
   The applicant claims that the Court should:

               1.

               declare the contested act non-existent and void;

               2.

               annul or withdraw all subsequent acts referring to, confirming or seeking to extend the purported effects of that non-existent act;

               3.

               order the payment of compensation for the detrimental consequences of that act, provisonally estimated at EUR 30 000, out of damage estimated at EUR 300 000;

               4.

               order the defendant to pay the costs of proceedings and outlays.

         Pleas in law and main arguments
   The present action has been brought inter alia against the act which the Director-General acting for the Directorate-General for Development is alleged to have required the applicant to sign and to have had placed on his administrative file, whereby he decided to require the applicant to take sick leave. The applicant also objects to the maintenance of a parallel file.
   In the applicant's opinion, the act in question should be regarded as legally non-existent.
   In support of his claims, the applicant further alleges:

               —

               that the reasons for the contested act are invalid;

               —

               that the decision rejecting the complaint lodged pursuant to Article 90 of the Staff Regulations is based on facts and conduct attributed to him, of which he had no knowledge, which had never been referred to in his periodic reports and which had never been mentioned to him by his immediate superiors;

               —

               the existence in this case of misuse of powers and abuse of process;

               —

               breach of the principles of equality and non-discrimination.


title: Case T-513/12: Action brought on 22 November 2012 — NCL v OHIM (NORWEGIAN GETAWAY)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/65

         Action brought on 22 November 2012 — NCL v OHIM (NORWEGIAN GETAWAY)
   (Case T-513/12)
   2013/C 26/129
   Language of the case: German

      Parties

      Applicant: NCL Corporation Ltd (Miami, United States of America) (represented by N. Grüger, lawyer)

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

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in case R 1014/2012-4 of 12 September 2012 and refer the case back to the Board of Appeal;

               —

               in the alternative, annul the decision in respect of services in Class 39: ‘Arranging of cruises, Cruise ship services, Cruise arrangement’ and refer the case back to the Board of Appeal;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘NORWEGIAN GETAWAY’ for services in Class 39 — Community trade mark application No 10 281 939

      Decision of the Examiner: Registration refused

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 7(2) of Regulation No 207/2009


title: Case C-160/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Maria Rosa Gramegna v A.S.L. Lodi and Others

text:
               2.6.2012

               EN

               Official Journal of the European Union

               C 157/5

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Maria Rosa Gramegna v A.S.L. Lodi and Others
   (Case C-160/12)
   2012/C 157/08
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per la Lombardia

      Parties to the main proceedings

      Applicant: Maria Rosa Gramegna

      Defendants: A.S.L. Lodi and Others

      Question referred

   Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne not by the [national health service] but wholly by the citizen — and which accordingly also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical product, as well as a quota in relation to the number of commercial outlets which may be established in the national territory?


title: Case T -57/06: Action brought on  17 February 2006  — Marly v OHIM

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/22

         Action brought on 17 February 2006 — Marly v OHIM
   (Case T -57/06)
   (2006/C 96/39)
   Language in which the application was lodged: French
   Parties

      Applicant: Marly SA (Brussels, Belgium) (represented by: B. Mouffe, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Other party to the proceedings before the Board of Appeal of OHIM: Erdal Gesellschaft m.b.H. (Hallein, Austria)
   Form of order sought
   The applicant claims that the Court should:

               —

               annul the decision of the Board of Appeal of OHIM in so far as it upholds the opposition by the proprietor of the word mark ‘TOFIX’;

               —

               order the defendant to pay the costs, including expenses necessarily incurred during proceedings before the Board of Appeal, incurred by the party initiating the proceedings and as calculated in the decision under appeal.

         Pleas in law and main arguments
   Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the figurative mark ‘TOPIX’ for goods in Class 3 (application No 2 326 072)
   Proprietor of the mark or sign cited in the opposition proceedings: Erdal Gesellschaft m.b.H.

      Mark or sign cited in opposition: the international word mark ‘TOPIX’ for goods in Classes 3 and 4

      Decision of the Opposition Division: opposition upheld in respect of all the disputed goods
   Decision of the Board of Appeal: appeal dismissed

      Pleas in law: infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 in that there is a visual and conceptual difference between the conflicting trade marks and a very great difference between the goods to which the two trade marks relate.


title: Case T-505/14: Order of the General Court of 23 February 2015 — Seven for all mankind v OHIM — Seven (SEVEN FOR ALL MANKIND) (Community trade mark — Opposition proceedings — Application for Community word mark SEVEN FOR ALL MANKIND — Earlier Community and international figurative marks Seven — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/26

         Order of the General Court of 23 February 2015 — Seven for all mankind v OHIM — Seven (SEVEN FOR ALL MANKIND)
   (Case T-505/14) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark SEVEN FOR ALL MANKIND - Earlier Community and international figurative marks Seven - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009 - Action manifestly lacking any foundation in law))
   (2015/C 127/36)
   Language of the case: English

      Parties

      Applicant: Seven for all mankind LLC (Vernon, California, United States) (represented by: A. Gautier-Sauvagnac, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Seven SpA (Leinì, Italy) (represented by: L. Trevisan, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 9 April 2014 (Case R 1277/2013-1), relating to opposition proceedings between Seven SpA and Seven For All Mankind LLC.

      Operative part of the order

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Seven For All Mankind LLC to pay the costs.

      (1)  OJ C 292, 1.9.2014.


title: Case T-212/10: Action brought on 3 May 2010 — Strålfors Aktiebolag v OHMI (IDENTIFICATION SOLUTIONS)

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/21

         Action brought on 3 May 2010 — Strålfors Aktiebolag v OHMI (IDENTIFICATION SOLUTIONS)
   (Case T-212/10)
   2010/C 195/35
   Language of the case: English

      Parties

      Applicant: Strålfors AB (Malmö, Sweden) (represented by: M. Nielsen, lawyer)

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

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2010 in case R 1112/2009-2;

               —

               Approve for registration the Community trade mark application No 8235186 ‘IDENTIFICATION SOLUTIONS’ for ‘labels and boxes made from paper and cardboard (not for identification of individuals); bookbinding material; adhesives for stationery or household purposes, artists’ materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers’ type; printing blocks’ in class 16; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘IDENTIFICATION SOLUTIONS’ for goods in class 16 — Community trade mark application No 8235186

      Decision of the examiner: Partially refused registration of the application for a Community trade mark

      Decision of the Board of Appeal: Dismissed the appeal and confirmed the contested decision

      Pleas in law: The applicant claims that the Community trade mark application No 8235186 ‘IDENTIFICATION SOLUTIONS’ should be allowed for registration for goods in class 16 because ‘IDENTIFICATION SOLUTIONS’ is distinctive for these goods and thus meets with the requirements according to Article 4 of Council Regulation No 207/2009.


title: Case C-178/06: Action brought on  5 April 2006  — Commission of the European Communities v Republic of Estonia

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/26

         Action brought on 5 April 2006 — Commission of the European Communities v Republic of Estonia
   (Case C-178/06)
   (2006/C 143/48)
   Language of the case: Estonian
   Parties

      Applicant: Commission of the European Communities (represented by K. Simonsson and E. Randvere, acting as Agents)

      Defendant: Republic of Estonia
   Form of order sought

               —

               declare that, by failing to notify the laws and regulations necessary for transposing into national law Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services, (1) the Republic of Estonia has failed to fulfil its obligations under the directive;

               —

               order the Republic of Estonia to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposing the directive into national law expired on 31 December 2002.

      (1)  OJ L 176 of 5.7.2002, p. 21.


title: Case C-108/11: Action brought on 2 March 2011 — European Commission v Ireland

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/13

         Action brought on 2 March 2011 — European Commission v Ireland
   (Case C-108/11)
   2011/C 145/19
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: R. Lyal, C. Soulay, agents)

      Defendant: Ireland

      The applicant claims that the Court should:

               —

               Declare that by applying a VAT rate of 4.8% to supplies of greyhounds and horses not normally intended for the preparation of foodstuffs, to the hire of horses and to certain insemination services, Ireland has failed to comply with its obligations under Articles 96, 98 (in conjunction with Annex III) and Article 110 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

               —

               order Ireland to pay the costs.

      Pleas in law and main arguments

   Under article 96 of the VAT directive, the standard rate of VAT fixed by each Member State, subject to a minimum rate of 15 %, is applicable to all supplies of goods and services. A rate other than the standard rate may be applied only in so far as that is permitted by other provisions of the directive.
   Article 98 provides that Member States may apply one or two reduced rates to the supplies of goods and services listed in Annex III to the directive. The supplies now in issue do not appear in Annex III.
   The VAT directive also contains transitional provisions which permit Member States to continue to apply rates which derogate from the general rules on the structure and level of rates contained in the directive, if the relevant national provisions were in force on 1 January 1991.
   Under article 113 of the VAT directive, where a Member State applied, on 1 January 1991, a reduced rate lower than the minimum laid down in article 99, it may apply to those goods and services one of the reduced rates provided for in article 98. However, since the rate applied by Ireland to the goods and services now in issue is lower than the minimum set out in article 99 of the VAT directive, article 113 can be of no avail.
   Article 110 of the directive also applies to rates lower than the minimum laid down in article 99. It lays down a transitional arrangement for certain national measures adopted for clearly defined social reasons (i.e. to reduce the tax burden levied on consumption of goods and service which cover basic social needs) and for the benefit of the final consumer. The Commission submits that the supply of horses and greyhounds (other than for use in the preparation of foodstuffs), the hire of horses and insemination services cannot be deemed to be necessary in order to cover basic social needs. The Commission also submits that, since a large proportion of horses and greyhounds are intended for racing or breeding, the benefit of the measure cannot be considered as lying with the final consumer.

      (1)  OJ L 347, p. 1