title: JUDGMENT OF THE COURT of 18 December 1997 in Case C-129/96 (reference for a preliminary ruling from the Belgian Conseil d'État): Inter-Environnement Wallonie ASBL v. Région Wallonne (Directive 91/156/EEC - Period for transposition - Effects - Definition of waste)

text:
7.2.98                 EN                 Official Journal of the European Communities                                       C 41/7
to the Treaty on European Union Ð the Court (Sixth                   1968 on coordination of safeguards which, for the
Chamber) composed of: R. Schintgen, President of the                 protection of the interests of members and others, are
Second Chamber, acting as President of the Sixth                     required by Member States of companies within the
Chamber, G. F. Mancini (Rapporteur), P. J. G. Kapteyn,               meaning of the second paragraph of Article 58 of the
J. L. Murray and G. Hirsch, Judges; G. Cosmas,                       Treaty, with a view to making such safeguards equivalent
Advocate-General; L. Hewlett, Administrator, gave a                  throughout the Community (OJ, English Special Edition
judgment on 11 December 1997, the operative part of                  1968 (I), p. 41) Ð the Court (Sixth Chamber), composed
which is as follows:                                                 of: H. Ragnemalm (Rapporteur), President of the
                                                                     Chamber, G. F. Mancini and P. J. G. Kapteyn, Judges; A.
                                                                     La Pergola, Advocate-General; L. Hewlett, Administrator,
1. Periods of service completed by part-time workers                 for the Registrar, has given a judgment on 16 December
     who have suffered indirect discrimination based on sex          1997, in which it has ruled:
     must be taken into account as from 8 April 1976, the
     date of the judgment in Case C-43/75 Defrenne, for
     the purposes of calculating the additional benefits to          The rules governing the enforceability as against third
     which they are entitled.                                        parties of acts done by members of company organs in
                                                                     circumstances where there is a conflict of interests with
                                                                     the company fall outside the normative framework of the
2. Community law precludes the application, to a claim               First Council Directive 68/151/EEC of 9 March 1968 on
     based on Article 119 of the EC Treaty for recognition           coordination of safeguards which, for the protection of the
     of the claimants' entitlement to join an occupational           interests of members and others, are required by Member
     pension scheme, of a national rule under which such             States of companies within the meaning of the second
     entitlement, in the event of a successful claim, is             paragraph of Article 58 of the Treaty, with a view to
     limited to a period which starts to run from a point in         making such safeguards equivalent throughout the
     time two years prior to commencement of proceedings             Community, and are matters for the national legislature.
     in connection with the claim.
                                                                     (1) OJ C 145, 18.5.1996.
(1) OJ C 269, 14.9.1996.
                                                                                JUDGMENT OF THE COURT
                JUDGMENT OF THE COURT
                                                                                of 18 December 1997
                        (Sixth Chamber)
                                                                     in Case C-129/96 (reference for a preliminary ruling from
                     of 16 December 1997                             the Belgian Conseil d'EÂtat): Inter-Environnement Wallonie
in Case C-104/96 (reference for a preliminary ruling from                             ASBL v. ReÂgion Wallonne (1)
the Hoge Raad der Nederlanden): Coöperatieve Rabobank                (Directive 91/156/EEC Ð Period for transposition Ð
Vecht en Plassengebied' BA v. Erik Aarnoud Minderhoud                               Effects Ð Definition of waste)
         (receiver in bankruptcy of Mediasafe BV) (1)
                                                                                (98/C 41/12)
(Company law Ð First Directive 68/151/EEC Ð Scope Ð
Representation of a company Ð Conflict of interests Ð
Lack of authority of a director to enter into a binding                             (Language of the case: French)
            transaction on behalf of the company)
                          (98/C 41/11)
                                                                       (Provisional translation; the definitive translation will be
                                                                              published in the European Court Reports)
                 (Language of the case: Dutch)
                                                                     In Case C-129/96: reference to the Court under Article 177
  (Provisional translation; the definitive translation will be       of the EC Treaty by the Belgian Conseil d'EÂtat for a
          published in the European Court Reports)                   preliminary ruling in the proceedings pending before that
                                                                     court between Inter-Environnement Wallonie ASBL and
                                                                     ReÂgion Wallonne Ð on the interpretation of Articles 5
In Case C-104/96: reference to the Court under Article 177           and 189 of the EEC Treaty and Article 1(a) of Council
of the EC Treaty from the Hoge Raad der Nederlanden                  Directive 75/442/EEC of 15 July 1975 on waste (OJ L 194,
(Supreme Court of the Netherlands) for a preliminary                 25.7.1975, p. 39), as amended by Council Directive 91/
ruling in the proceedings pending before that court                  156/EEC of 18 March 1991 (OJ L 78, 26.3.1991, p. 32)
between Coöperatieve Rabobank Vecht en Plassengebied'               Ð the Court composed of: G. C. Rodríguez Iglesias,
BA and Erik Aarnoud Minderhoud (receiver in bankruptcy               President, C. Gulmann, H. Ragnemalm and R. Schintgen,
of Mediasafe BV) Ð on the interpretation of Article 9(1)             Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
of the First Council Directive 68/151/EEC of 9 March                 Almeida, P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward,
 ---pagebreak--- C 41/8                EN                  Official Journal of the European Communities                                        7.2.98
J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón                    Article 5(a) of Council Regulation (EEC) No 2137/85 of
(Rapporteur), Judges; F. G. Jacobs, Advocate-General; H.             25 July 1985 on the European Economic Interest
von Holstein, Deputy Registrar, gave a judgment on                   Grouping (EEIG) is to be interpreted as meaning that the
18 December 1997, the operative part of which is as                  business name of an EEIG must include the words
follows:                                                             European Economic Interest Grouping' or the initials
                                                                     EEIG', whilst the other elements to be included may be
1. A substance is not excluded from the definition of                imposed by the provisions of internal law applicable in the
     waste in Article 1(a) of Council Directive 75/442/EEC           Member State in which the grouping has its official
     of 15 July 1975 on waste, as amended by Council                 address.
     Directive 91/156/EEC of 18 March 1991, merely
     because it directly or indirectly forms an integral part        (1) OJ C 74, 8.3.1997.
     of an industrial production process.
2. The second paragraph of Article 5 and the third
     paragraph of Article 189 of the EEC Treaty, and
     Directive 91/156/EEC, require the Member States to
     which that Directive is addressed to refrain, during the        Reference for a preliminary ruling from the
     period laid down therein for its implementation, from           Bundesgerichtshof by order of that court of 17 June 1997
     adopting measures liable seriously to compromise the                in proceedings brought by Farmitalia Carlo Erba Srl
     result prescribed.                                                                      (Case C-392/97)
(1) OJ C 180, 22.6.1996.                                                                       (98/C 41/14)
                                                                     Reference has been made to the Court of Justice of the
                                                                     European       Communities       by    an    order    of    the
                                                                     Bundesgerichtshof (Federal Court of Justice) of 17 June
                                                                     1997, which was received at the Court Registry on
               JUDGMENT OF THE COURT                                 18 November 1997, for a preliminary ruling in
                        (Fifth Chamber)                              proceedings brought by Farmitalia Carlo Erba Srl on the
                                                                     following questions:
                     of 18 December 1997
in Case C-402/96 (reference to the Court by the                      1. Is it a condition of the application of Article 3(b) of
Oberlandesgericht Frankfurt am Main for a preliminary                     Council Regulation (EEC) No 1768/92 (1) of 18 June
ruling): concerning the commercial registration of an                     1992 concerning the creation of a supplementary
undertaking in the process of formation, brought by                       protection certificate for medicinal products that the
European        Information      Technology       Observatory,            product in respect of which the grant of a protection
    Europäische Wirtschaftliche Interessenvereinigung (1)                 certificate is sought is described as an active
 (European Economic Interest Grouping Ð Business name)                    ingredient' in the medicinal authorization?
                          (98/C 41/13)
                                                                          Are, then, the terms of Article 3(b) not satisfied where
                                                                          only one individual salt of a substance is stated in the
               (Language of the case: German)
                                                                          notice of authorization to be an active ingredient', but
                                                                          the grant of a protection certificate is sought for the
  (Provisional translation; the definitive translation will be            free basis and/or for other salts of the active
          published in the European Court Reports)                        ingredient?
In Case C-402/96: reference to the Court under Article 177           2. If the questions at 1 are answered in the negative:
of the EC Treaty by the Oberlandesgericht Frankfurt am
Main (Germany) for a preliminary ruling in the
                                                                          According to which criteria is it to be determined
proceedings pending before that court, concerning the
                                                                          whether the product is protected by a basic patent
commercial registration of an undertaking in the process
                                                                          within the meaning of Article 3(a), where the grant of
of formation, brought by European Information
                                                                          a protection certificate is sought for the free base of an
Technology Observatory, Europäische Wirtschaftliche
                                                                          active ingredient including any of its salts, but the
Interessenvereinigung Ð on the interpretation of
                                                                          basic patent in its patent claims mentions only the free
Article 5(a) of Council Regulation (EEC) No 2137/85 of
                                                                          base of this substance and, moreover, mentions only a
25 July 1985 on the European Economic Interest
                                                                          single salt of this free base? Is the wording of the
Grouping (EEIG) (OJ L 199, 31.7.1985, p. 1) Ð the
                                                                          claim for the basic patent or the latter's scope of
Court (Fifth Chamber) composed of: C. Gulmann
                                                                          protection the determining criterion?
(Rapporteur), President of the Chamber, M. Wathelet, J. C.
Moitinho de Almeida, D. A. O. Edward and J.-P.
Puissochet, Judges; A. La Pergola, Advocate-General; R.              (1) OJ L 182, 2.7.1992, p. 1.
Grass, Registrar, gave a judgment on 18 December 1997,
the operative part of which is as follows:


title: Case T-288/07: Action brought on 30 July 2007 — Alcan France v Commission

text:
               6.10.2007

               EN

               Official Journal of the European Union

               C 235/17

         Action brought on 30 July 2007 — Alcan France v Commission
   (Case T-288/07)
   (2007/C 235/31)
   Language of the case: French
   Parties

      Applicant: Alcan France SAS (Paris, France) (represented by: M. Thill-Tayara, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the contested decision of the Commission and find that the measure in dispute does not constitute State aid or, in the alternative, find that that aid may not be recovered since the Commission infringed the principle of legitimate expectations and did not order that the aid be recovered within a reasonable time limit;

               —

               Annul Article 1 of the contested decision classing the contested measure as aid;

               —

               Annul Articles 2 and 3 of the contested decision classing the aid measure as incompatible;

               —

               Annul Articles 4 to 6 of the contested decision ordering recovery of the aid;

               —

               Order the Commission to pay the applicant the expenses and costs resulting from the contested decision.

         Pleas in law and main arguments
   By decision of 30 June 1997, adopted following a proposal from the Commission and in accordance with the procedure laid down in Council Directive 92/81/EEC (1), the Council authorised the Member States to apply or to continue to apply the existing reduced rates of excise duty or exemptions from excise duty to certain mineral oils when used for specific purposes. By four subsequent decisions, the Council extended that authorisation, the final authorisation period expiring on 31 December 2006. France was authorised to apply those reduced rates or exemptions to heavy fuel oil used as fuel for the production of alumina in the Gardanne region.
   In a letter of 30 December 2001, the Commission notified France of its decision to initiate proceedings under Article 88(2) of the EC Treaty relating to the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne region (2). On 7 December 2005, in consequence of this procedure, the Commission adopted Decision 2006/323/EC finding that exemptions from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, implemented by France, Ireland and Italy respectively, constituted State aid within the meaning of Article 87(1) EC that is in part incompatible with the common market, and thus ordered the Member States concerned to recover all such aid (3).
   The Commission decided to extend the formal investigation procedure regarding the exemption from excise duty on heavy mineral oils used for alumina production for the period commencing 1 January 2004. After giving the Member States and the third parties concerned the opportunity to submit their observations on that matter, the Commission adopted Decision C (2007) 286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, applied by France, Ireland and Italy respectively (State aid No C 78-79-80/2001). That is the decision which is contested in the present action.
   In support of its action the applicant claims, at the outset, that the decision is invalid as a result of a formal defect in that France was not given notice to submit its comments pursuant to Article 88 EC, since the second procedure for the period after 2004 was opened, in its view, on the basis of recitals in the preamble to the decision of 7 December 2005.
   As regards the merits the applicant relies on two pleas in support of its action for annulment.
   By its first plea it submits that the Commission found there to be State aid in infringement of Articles 87 and 88 EC both at the stage of classifying the use of the aid and at the stage of examining its compatibility. In addition, in the context of that plea, it alleges that the Commission infringed Article 1(c) of Regulation No 659/1999 (4) and erroneously applied the criterion of selectivity of the aid. It also claims that the grounds of the contested decision are contradictory and insufficient and thus infringe Article 253 EC. Moreover, the applicant submits that the Commission based its finding that the aid was incompatible on the wrong legal basis since, in its view, the conditions for the applicability of the Community guidelines on State aid for environmental protection (5) were not met.
   In the alternative, the applicant claims by its second plea that the recovery of the aid ordered by the Commission infringes the principles of legitimate expectation and legal certainty.

      (1)  Council Directive of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils.

      (2)  Published in OJ 2002 C 30.

      (3)  Decision C(2005) 4436 final, State aid Nos C 78-79-80/2001, OJ 2006 L 119, p. 12.

      (4)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

      (5)  Community guidelines on State aid for environmental protection (OJ 2001 C 37, p. 3).


title: Case T-194/17: Action brought on 27 March 2017 — CeramTec v EUIPO — C5 Medical Werks (Representation of a hip ball)

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/37

         Action brought on 27 March 2017 — CeramTec v EUIPO — C5 Medical Werks (Representation of a hip ball)
   (Case T-194/17)
   (2017/C 161/53)
   Language in which the application was lodged: English

      Parties

      Applicant: CeramTec (Plochingen, Germany) (represented by: A. Renck and E. Nicolás Gómez, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: C5 Medical Werks (Grand Junction, Colorado, United States)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU figurative colour mark in pink (Representation of a hip ball) — EU trade mark No 10 214 112

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 15 February 2017 in Case R 928/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order that the costs of the proceedings be borne by the defendant, or, if C5 Medical Werks joins, by the intervener.

      Plea in law

               —

               Infringement of Articles 59 and 83 of Regulation No. 207/2009.


title: Case C-219/16 P: Appeal brought on 19 April 2016 by GFKL Financial Services GmbH, formerly GFKL Financial Services AG, against the judgment of the General Court (Ninth Chamber) of 4 February 2016 in Case T-620/11 GFKL Financial Services AG v European Commission

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/8

         Appeal brought on 19 April 2016 by GFKL Financial Services GmbH, formerly GFKL Financial Services AG, against the judgment of the General Court (Ninth Chamber) of 4 February 2016 in Case T-620/11 GFKL Financial Services AG v European Commission

   (Case C-219/16 P)
   (2016/C 222/10)
   Language of the case: German

      Parties

      Appellant: GFKL Financial Services GmbH, formerly GFKL Financial Services AG (represented by: Dr M Schweda, J. Eggers, Dr M. Knebelsberger, Dr F. Loose, Rechtsanwälte)

      Other parties to the proceedings: European Commission, Federal Republic of Germany

      Form of order sought

   The appellant claims that the Court should:

               1.

               set aside the judgment of the General Court of the European Union (Ninth Chamber) of 4 February 2016 in Case T-620/11 in so far as that judgment dismissed the action as unfounded; and
               annul Commission Decision of 26 January 2011 on State aid C 7/10 (ex CP 250/09 and NN 5/10) implemented by Germany — Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel), (1) document C(2011) 275;

               2.

               in the alternative, set aside the judgment of the General Court of the European Union (Ninth Chamber) of 4 February 2016 in Case T-620/11 in so far as that judgment dismissed the action as unfounded, and refer the case back to the General Court;

               3.

               order the respondent to pay the costs of the proceedings.

      Grounds of appeal and main arguments

   By its appeal, the appellant contests the characterisation as selective State aid of the restructuring clause (Sanierungsklausel) in Paragraph 8c(1a) of the Law on corporation tax (Körperschaftsteuergesetz; ‘the KStG’).
   The appellant founds its appeal on two grounds of appeal:

      First ground of appeal: infringement of Article 107(1) TFEU
   The restructuring clause is not a selective measure and therefore does not have the character of State aid within the meaning of the first paragraph of Article 107 TFEU.

               —

               The General Court erred in proceeding from the premiss that the derogation in Paragraph 8c(1) of the KStG, under which, in certain cases of acquisitions of a shareholding, losses prima facie capable of being carried forward are extinguished, is part of the system of reference. In reality, that provision provides an exception to the system of reference. The system of reference consists in the general possibility of carrying losses forward into later tax periods.

               —

               The restructuring clause is also of general application in so far as it does not confer any selective advantage. There are significant differences between undertakings in difficulty, which fall under the scope of the restructuring clause, and all other undertakings, in particular those that are economically healthy, so that those two groups of undertakings are not in a comparable situation. Furthermore, with regard to its assessment of equal treatment, the General Court reasoned on the basis of a purely hypothetical situation; the comparable group to which the General Court had regard scarcely occurs in legal reality.

               —

               Nor does the restructuring clause favour ‘certain undertakings or the production of certain goods’. The restructuring clause is potentially open to all undertakings and does not exclude a priori any group of undertakings. Its application is not connected to a ‘specific type’ of undertaking, but to an economic mechanism, namely a ‘restructuring acquisition’.

               —

               The restructuring clause can moreover be justified by the nature and the general aims of the German tax system. It facilitates the implementation of fundamental principles of German corporation tax law, such as the principle of loss carry-forward, the principle of taxation according to economic ability to pay and the general tax purpose of ensuring sustainable tax revenue.

      Second ground of appeal: infringement of the principle of the protection of legitimate expectations
   The judgment of the General Court infringes the principle of EU law of the protection of legitimate expectations. The alleged character of the restructuring clause as aid was not apparent as such even to the most diligent economic operator. Comparable rules in Germany or other EU Member States have never been objected to by the Commission as contrary to the State aid rules.

      (1)  OJ 2011 L 235, p. 26.


title: Case C-164/14 P: Appeal brought on 4 April 2014 by Pesquerias Riveirenses, S.L. and Others against the order of the General Court (Fourth Chamber) delivered on 7 February 2014 in Case T-180/13 Pesquerías Riveirenses and Others v Council

text:
               26.5.2014

               EN

               Official Journal of the European Union

               C 159/21

         Appeal brought on 4 April 2014 by Pesquerias Riveirenses, S.L. and Others against the order of the General Court (Fourth Chamber) delivered on 7 February 2014 in Case T-180/13 Pesquerías Riveirenses and Others v Council
   (Case C-164/14 P)
   2014/C 159/28
   Language of the case: Spanish

      Parties

      Appellants: Pesquerias Riveirenses, S.L., Pesquera Campo de Marte, S.L., Pesquera Anpajo, S.L., Arrastreros del Barbanza, S.A., Martinez Pardavila e Hijos, S.L., Lijo Pesca, S.L., Frigorificos Hermanos Vidal, S.A., Pesquera Boteira, S.L., Francisco Mariño Mos y Otros, C.B., Juan Antonio Pérez Vidal y Hermano, C.B., Marina Nalda, S.L., Portillo y Otros, S.L., Vidiña Pesca, S.L., Pesca Hermo, S.L., Pescados Oubiña Perez, S.L., Manuel Pena Graña, Campo Eder, S.L., Pesquera Laga, S.L., Pesquera Jalisco, S.L., Pesquera Jopitos, S.L., Pesca-Julimar, S.L. (represented by: J. Tojeiro Sierto, abogado)

      Other party to the proceedings: Council of the European Union

      Form of order sought

   Set aside the order of the General Court declaring the applicants’ action for annulment of Council Regulation (EU) No 40/2013 of 21 January 2013 (1) inadmissible, and give a fresh ruling declaring the action admissible.

      Pleas in law and main arguments

   The appellants are directly concerned — breach of Article 263 TFEU
   The fourth paragraph of Article 263 TFEU states that ‘any natural or legal person may ... institute proceedings ... against a regulatory act which is of direct concern to them and does not entail implementing measures’. To that effect, direct concern and the lack of implementing measures are two different requirements; the question of state discretion, essential in determining whether the disputed act is of direct concern, is by contrast irrelevant when determining whether the national act may be considered an ‘implementing measure’ within the meaning of the fourth paragraph of Article 263 TFEU.
   The applicants consider that, as owners of fishing vessels dedicated to the catch of blue whiting, they are clearly directly concerned by the regulation establishing and limiting the catch of that species. Management of blue whiting stock is carried out annually by the EU through the TAC (total allowable catch); in the applicants’ opinion, the establishment of those TAC is incorrect because it does not take account of the latest scientific recommendations. Accordingly managing blue whiting as a single stock and not as two different stocks causes the total allowable catch to be less than that to which the applicants should be entitled if the stock were managed separately in the North zone and the South zone. Following the establishment of that TAC, States may not subsequently intervene in the allocation of fishing rights or in the management method used for their allocation since that method rests on the TAC initially established by the EU and therefore the only option or alternative open to the applicants to express their disagreement with the TAC and the method by which it was established or by which the fishery is managed is to bring proceedings before the European Courts.

      (1)  Council Regulation (EU) No 40/2013 of 21 January 2013 fixing for 2013 the fishing opportunities available in EU waters and, to EU vessels, in certain non-EU waters for certain fish stocks and groups of fish stocks which are subject to international negotiations or agreements (OJ 2013 L 23, p. 54).


title: Case C-213/14: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 25 April 2014  — Criminal proceedings against Romina Biolzi

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/12

         Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 25 April 2014 — Criminal proceedings against Romina Biolzi
   (Case C-213/14)
   2014/C 292/16
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Party to the main proceedings

   Romina Biolzi

      Questions referred

               1.

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU, as also construed in the judgment of the Court of Justice of the European Union of 16 February 2012 in Joined Cases C-72/10 and C-77/10, to be interpreted as precluding a call for tenders for the award of licences with a period of validity shorter than that of licences awarded in the past, where that tendering procedure has been launched in order to remedy the consequences of the unlawful exclusion of a certain number of operators from earlier tendering procedures?

               2.

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU, as also construed in the judgment of the Court of Justice of the European Union of 16 February 2012 in Joined Cases C-72/10 and C-77/10, to be interpreted as precluding the possibility that sufficient justification for the shorter period of validity of licences offered for tender, as compared with licences awarded in the past, can be found in the requirement for the licensing system to be reorganised through the alignment of licence expiry dates?

               3.

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU, as also construed in the judgment of the Court of Justice of the European Union of 16 February 2012 in Joined Cases C-72/10 and C-77/10, to be interpreted as precluding the imposition of an obligation to transfer, free of charge, the use of tangible and intangible assets represented by the betting management and collection network in the event that the activity has ceased owing to the expiry of the licence or as a result of measures disqualifying the licence-holder or withdrawing the licence?


title: Case C-391/07: Judgment of the Court (First Chamber) of 4 December 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Glencore Grain Rotterdam BV v Hauptzollamt Hamburg-Jonas (Regulation (EC) No 800/1999 — Export refunds on agricultural products — Article 16 — Differentiated refund — Proof that customs formalities for importation have been completed — Production of a copy or photocopy of the transport documents — Regulation (EC) No 1501/95 — Granting of export refunds on cereals — Article 13 — Derogation from Article 16 of Regulation (EC) No 800/1999)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/6

         Judgment of the Court (First Chamber) of 4 December 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Glencore Grain Rotterdam BV v Hauptzollamt Hamburg-Jonas
   (Case C-391/07) (1)

   (Regulation (EC) No 800/1999 - Export refunds on agricultural products - Article 16 - Differentiated refund - Proof that customs formalities for importation have been completed - Production of a copy or photocopy of the transport documents - Regulation (EC) No 1501/95 - Granting of export refunds on cereals - Article 13 - Derogation from Article 16 of Regulation (EC) No 800/1999)
   (2009/C 19/10)
   Language of the case: German
   Referring court
   Finanzgericht Hamburg
   Parties to the main proceedings

      Applicant: Glencore Grain Rotterdam BV

      Defendant: Hauptzollamt Hamburg-Jonas
   Re:
   Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of the second paragraph of Article 13 of Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals (OJ 1995 L 147, p. 7) — Simplified procedure: obligation to produce transport documents
   Operative part of the judgment
   Article 13 of Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals, as amended by Commission Regulation (EC) No 1259/97 of 1 July 1997, must be interpreted as meaning that the fact that the operator provides proof that a quantity of at least 1 500 tonnes of cereal product has left the customs territory of the European Community on board a vessel suitable for sea transport does not release him from the obligation laid down in Article 16(3) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products to produce a copy or a photocopy of the transport documents.

      (1)  OJ C 269, 10.11.2007.


               30.4.2004

               EN

               Official Journal of the European Union

               C 118/35

         Removal from the register of Case C-20/04 (1)

   (2004/C 118/74)
   By order of 29 April 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-20/04: Commission of the European Communities v French Republic.

      (1)  OJ C 59 of 6.3.2004.


title: Case T-20/05: Action brought on 21 January 2005 by Outokumpu OYJ and Outokumpu Copper Products OY against the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/35

         Action brought on 21 January 2005 by Outokumpu OYJ and Outokumpu Copper Products OY against the Commission of the European Communities
   (Case T-20/05)
   (2005/C 82/65)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 January 2005 by Outokumpu OYJ, established in Espoo (Finland) and Outokumpu Copper Products OY, established in Espoo (Finland), represented by J. Ratliff, Barrister and F. Distefano and J. Luostarinen, lawyers.
   The applicants claim that the Court should:

               —

               annul Article 2 of the Commission's Decision of 3 September 2004 (Case COMP/E-1/38.069 - Copper Plumbing Tubes) insofar as it relates to the amount of the fine imposed on the applicants;

               —

               reduce the fine imposed on the applicants in the said decision under the Court's jurisdiction;

               —

               order the Commission to pay the costs of the proceedings including those of the applicants.

         Pleas in law and main arguments
   In the contested decision the Commission found that the applicants, among other undertakings, infringed Article 81(1) EC by participating in a complex of agreements and concerted practices consisting of price fixing and market sharing in the copper plumbing tubes sector.
   In support of its application the applicants claim first of all that the Commission erred in law when it increased the fine imposed on the applicants by 50 % for recidivism, based on the fact that the applicants had already been found to have committed a similar infringement in the case of stainless steel. In this context the applicants claim that the Commission violated Article 23 of Regulation 1/2003 (1) as well its own 1998 Fining Guidelines, violated the general principles of proportionality and equal treatment and committed a manifest error of assessment.
   The applicants further claim that the Commission erred both in law and in its assessment of the facts when it increased the fine imposed on the applicants by 50 % for deterrence. In this context the applicants submit that the Commission assessed such deterrent effects incorrectly and contrary to Article 23 of Council Regulation 1/2003, its own 1998 Fining Guidelines as well as the general principles of fining, punishment and proportionality, given that the applicants only became larger than the other companies involved in the infringement in question through acquisitions at the very end or even after the infringement. In the same context the applicants submit that the Commission erred by considering only turnover instead of the full circumstances of the applicants.
   Finally, the applicants claim that the Commission manifestly erred in law by taking into account, for fining purposes, not only the producers ‘conversion margin’ for processing copper metal into plumbing tubes, but also the underlying copper metal turnover, which was not part of any unlawful co-operation. According to the applicants, this error has resulted in a disproportionately high fine.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4/1/2003 p. 1.


title: Case C-441/16: Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (Romania) lodged on 8 August 2016 — SMS group GmbH v Direcţia Generală Regională a Finanțelor Publice a Municipiului București

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/30

         Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (Romania) lodged on 8 August 2016 — SMS group GmbH v Direcţia Generală Regională a Finanțelor Publice a Municipiului București
   (Case C-441/16)
   (2016/C 419/39)
   Language of the case: Romanian

      Referring court

   Înalta Curte de Casaţie şi Justiţie

      Parties to the main proceedings

      Applicant: SMS group GmbH

      Defendant: Direcţia Generală Regională a Finanțelor Publice a Municipiului București

      Questions referred

               1.

               Must Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, (1) in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, (2) be interpreted as precluding a practice of a national tax administration which considers that there is no objective evidence to confirm the declared intention of the taxable person to use the goods imported in connection with its economic activity in the case where, on the date of the actual importation, the contract for the performance of which the taxable person had purchased and imported the goods was suspended, with the serious risk that the subsequent supply/transaction for which the imported goods were intended would no longer be carried out?

               2.

               Does proof of the subsequent circulation of the imported goods, that is to say, establishment of the fact that the imported goods were actually intended for the taxable transactions of the taxable person, constitute, and if so in what way, an additional condition required for the purposes of refunding VAT, different from those listed in Articles 3 and 4 of Directive 79/1072/EEC and prohibited by Article 6 thereof, or necessary information on the essential condition for refunding relating to the use of the imported goods in connection with taxable transactions, which the tax authority may request under Article 6 thereof?

               3.

               Can Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, be interpreted as meaning that the right to a refund of VAT may be denied in the case where the subsequent transaction planned, in connection with which the imported goods were intended to be used, is no longer carried out? In those circumstances, does the actual intended use of the goods, that is to say, whether they were used in any event, in what way and in which territory, namely in that of the Member State in which the VAT was paid or outside that State, have any relevance?

      (1)  Eighth Council Directive of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11).

      (2)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case F-16/12: Order of the Civil Service Tribunal of 27 February 2013 — Kimman v Commission

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/48

         Order of the Civil Service Tribunal of 27 February 2013 — Kimman v Commission
   (Case F-16/12) (1)

   2013/C 114/74
   Language of the case: French
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 138, 12.5.2012, p. 33.


title: Case C-374/11: Judgment of the Court (Fourth Chamber) of 19 December 2012 — European Commission v Ireland (Failure of a Member State to fulfil obligations — Directive 75/442/EEC — Domestic waste waters discharged through septic tanks in the countryside — Judgment of the Court finding that a Member State has failed to fulfil obligations — Article 260(2) TFEU — Measures to ensure compliance with a judgment of the Court — Financial penalties — Penalty payment — Lump sum)

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/9

         Judgment of the Court (Fourth Chamber) of 19 December 2012 — European Commission v Ireland
   (Case C-374/11) (1)

   (Failure of a Member State to fulfil obligations - Directive 75/442/EEC - Domestic waste waters discharged through septic tanks in the countryside - Judgment of the Court finding that a Member State has failed to fulfil obligations - Article 260(2) TFEU - Measures to ensure compliance with a judgment of the Court - Financial penalties - Penalty payment - Lump sum)
   2013/C 46/15
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: E. White, acting as Agent)

      Defendant: Ireland (represented by: D. O’Hagan and E. Creedon, acting as Agents, A. Collins, SC, and M. Gray, BL)

      Re:

   Failure of a Member State to fulfil obligations — Non-compliance with the judgment of the Court of 29 October 2009 in Case C-188/08 Commission v Ireland, concerning infringement of Articles 4, 7, 8, 9, 10, 11, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), as regards domestic waste waters discharged through septic tanks — Waste not covered by other legislation — Application for the imposition of a periodic penalty payment and the payment of a lump sum

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt all of the measures necessary to ensure compliance with the judgment of 29 October 2009 in Case C-188/08 Commission v Ireland establishing that Ireland has failed to fulfil its obligations under Articles 4 and 8 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, Ireland has failed to fulfil its obligations under Article 260(1) TFEU;

               2.

               Orders Ireland to pay to the European Commission, into the ‘European Union own resources’ account, a penalty payment of EUR 12 000 for each day of delay in adopting the measures necessary to ensure compliance with the judgment in Case C-188/08 Commission v Ireland, with effect from the date on which judgment is delivered in the present case until the date of full compliance with the judgment in Case C-188/08 Commission v Ireland;

               3.

               Orders Ireland to pay to the European Commission, into the ‘European Union own resources’ account, the lump sum of EUR 2 000 000;

               4.

               Orders Ireland to pay the costs.

      (1)  OJ C 282, 24.9.2011.


title: Case C-232/99: Action brought on 17 June 1999 by the Commission of the European Communities against the Kingdom of Spain

text:
C 246/14               EN                      Official Journal of the European Communities                                           28.8.1999
Contentions and principal arguments adduced in support                         State examination, without giving further details, gives the
                                                                               impression that all the areas of specialised medicine
                                                                               concerned must be the subject of comprehensive fresh
The pleas in law and main arguments correspond to those in                     training, whereas Article 8(3) provides at most for
Case C-227/99 (3); the period for transposition of the directives              additional training in certain areas. In addition, the Spanish
expired on 30 April 1997.                                                      authorities have not demonstrated the utility of such an
                                                                               examination if the training is to be merely supplementary
                                                                               and limited.
(1) OJ L 144 of 18.6.1996, p. 12.
(2) OJ L 144 of 18.6.1996, p. 35.                                         — Failure to give effect to Article 18 of Directive 93/16/EEC:
(3) Not yet published in the Official Journal.                                 Spain has not shown that the application of its existing
                                                                               domestic law can have an effect equivalent to the
                                                                               implementation of that article.
                                                                          (1) OJ L 165 of 7.7.1993, p. 1.
                                                                          (2) Council Directive 75/362/EEC of 16 June 1975 concerning the
                                                                              mutual recognition of diplomas, certificates and other evidence of
                                                                              formal qualifications in medicine, including measures to facilitate
Action brought on 17 June 1999 by the Commission of                           the effective exercise of the right of establishment and freedom to
the European Communities against the Kingdom of Spain                         provide services (OJ L 167 of 30.6.75, p. 1).
                          (Case C-232/99)
                         (1999/C 246/29)
                                                                          Reference for a preliminary ruling by Københavns Byret
                                                                          by order of 17 June 1999 in the case of Anklagemyn-
An action against the Kingdom of Spain was brought before                               digheden v Tonny Haugsted Hansen
Court of Justice on 17 June 1999 by the Commission of the
European Communities, represented by Isabel Martı́nez del
Peral and Bernard Monguin, of its Legal Service, acting as                                           (Case C-233/99)
Agents, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
                                                                                (1999/C 246/30)
The applicant claims that the Court of Justice should:                    Reference has been made to the Court of Justice of the
                                                                          European Communities by order of 17 June 1999 by
1. Declare that, by failing to give due effect within the                 Københavns Byret (Copenhagen District Court), which was
    prescribed period to Article 8 of Council Directive                   received at the Court Registry on 21 June 1999, for a
    93/16/EEC of 5 April 1993 (1) to facilitate the free move-            preliminary ruling in the case of Anklagemyndigheden (Public
    ment of doctors and the mutual recognition of their                   Prosecution Department) v Tonny Haugsted Hansen on the
    diplomas, certificates and other evidence of formal qualifi-          following questions:
    cations and by failing to give effect to Article 18 of that
    directive, the Kingdom of Spain has failed to fulfil its
                                                                          1. Must European Parliament and Council Directive
    obligations under the EC Treaty and under that directive;
                                                                               94/62/EC(1) of 20 December 1994 on packaging and
                                                                               packaging waste, in particular Article 18, in conjunction
2. Order the Kingdom of Spain to pay the costs.                                with Articles 5, 7 and 9 thereof, be interpreted as
                                                                               precluding a national system under which criminal charges
                                                                               may be brought against a person who, contrary to certain
                                                                               national rules on the packaging of beer and soft drinks,
Contentions and principal arguments adduced in support
                                                                               has marketed imported canned cola in the metal packaging
                                                                               at issue in this case?
— Failure to give due effect to Article 8 of Directive
    93/16/EEC: a Member State may not make access to the
    training leading to the award of a specialist diploma in              2. If Question 1 is answered in the affirmative: Do the
    cases not covered by automatic recognition under the                       provisions of the directive, in particular Article 18, in
    directive systematically conditional upon the passing of a                 conjunction with Articles 5, 7 and 9 thereof, satisfy the
    State examination, like the public examination laid down                   conditions for being directly applicable, so that a person
    for access to the training to become a ‘Resident Medical                   who has been charged can rely directly on the provisions
    Intern’. Articles 39 (ex Article 48) and 43 (ex Article 52)                of the directive before national courts?
    of the EC Treaty, for the implementation of which
    Directives 75/362/EEC (2) and 93/16/EEC were adopted,                 3. If Question 1 is answered in the negative: Does Article 28
    require the Member States to take account, in the broadest                 of the EC Treaty (ex Article 30), in conjunction with
    and most practical way, of training already undertaken in                  considerations of environmental protection (see judgment
    another Member State. However, to subject migrants to a                    of 20 September 1988 in Case 302/86 Commission v


title: Order of the President of the Court of First Instance of 31 January 2003 in Case T-224/02 R: Miguel Forcat Icardo v Commission of the European Communities (Proceedings for interim measures — Officials — Inadmissibility — Urgency — No urgency)

text:
C 101/34                EN                           Official Journal of the European Union                                           26.4.2003
(Belgium), represented by M. van Dam, Avocat, against the                    ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Commission of the European Communities (Agents: H. van                                                     INSTANCE
Vliet and W. Wils) — application for the annulment of
Commission Decision SG (2001) D/286098 of 9 February                                                 of 31 January 2003
2001, whereby the Commission rejected the application by
the applicant for exclusion of the boat Arizona from the scope
of Council Regulation (EC) No 718/1999 of 29 March 1999                      in Case T-224/02 R: Miguel Forcat Icardo v Commission
on a Community-fleet capacity policy to promote inland                                        of the European Communities
waterway transport (OJ 1999 L 90, p. 1) — the Court of First
Instance (Third Chamber), composed of K. Lenaerts, President,                (Proceedings for interim measures — Officials — Inadmissi-
J. Azizi and M. Jaeger, Judges; H. Jung, Registrar, has made an                              bility — Urgency — No urgency)
order on 13 December 2002, in which it:
                                                                                (2003/C 101/63)
1)    Declares that there is no further need to adjudicate;
                                                                                (Language of the case: French)
2)    Orders the Commission to pay the costs.
( 1) OJ C 186, 30.6.2001.                                                    In Case T-224/02 R: Miguel Forcat Icardo, an official of
                                                                             the Commission of the European Communities, residing in
                                                                             Brussels, represented by M.A. Lucas, avocat, against Com-
                                                                             mission of the European Communities (Agents: J. Currall and
                                                                             H. Tserepa-Lacombe) — application, essentially, in the first
                                                                             place, for compliance with the Commission’s undertaking to
                                                                             second the applicant to the United Nations Organisation for
       ORDER OF THE COURT OF FIRST INSTANCE                                  Food and Agriculture in Rome and, second, for suspension of
                                                                             the applicant’s staff report of 18 March 2002 covering the
                                                                             period from 1999 to 2001 — the President of the Court of
                       of 11 February 2003                                   First Instance has made an order on 31 January 2003, the
                                                                             operative part of which is as follows:
in Case T-83/02: Jan Pflugradt v European Central Bank (1)
                                                                             1.    The application for interim measures is dismissed.
(Staff of the European Central Bank — Formal warning —
Measure having an adverse effect — Pre-litigation procedure                  2.    The costs are reserved.
                        — Inadmissibility)
                          (2003/C 101/62)
                   (Language of the case: German)
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 3 February 2003
In Case T-83/02: Jan Pflugradt, residing in Frankfurt-am-Main
(Germany), represented by N. Pflüger, Rechtsanwalt, with an
address for service in Luxembourg, against European Central                  in Case T-253/02: Chafiq Ayadi v Council of the European
Bank (Agents: V. Saintot, T. Gilliams and B. Wägenbaur) —                    Union and Commission of the European Communities ( 1)
application for the annulment of the letter of 28 February
2002 by which the European Central Bank informed the                         (Action for annulment — Council Regulation — Action
applicant that a formal-warning procedure was being instituted               brought against the Council and the commission — Partial
against him — the Court of First Instance (Fifth Chamber),                                              inadmissibility)
composed of: R. García-Valdecasas, President, P. Lindh and
J.D. Cooke, Judges; H. Jung, Registrar, has made an order on
                                                                                (2003/C 101/64)
11 February 2003, the operative part of which is as follows:
                                                                                (Language of the case: English)
1.    The application is inadmissible.
2.    Each party shall bear its own costs.
                                                                             In Case T-253/02: Chafiq Ayadi, residing in Dublin, represent-
                                                                             ed by A. Lyon, Solicitor, and S. Cox, Barrister, against Council
( 1) OJ C 118 of 18.5.2002.                                                  of the European Union (Agents: M. Vitsentzatos and M. Bishop)
                                                                             and Commission of the European Communities (Agents:
                                                                             M. Wilderspin and C. Brown) — application for partial


title: Case T-127/09: Action brought on 15 April 2009 — Abdulrahim v Council and Commission

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/12

         Action brought on 15 April 2009 — Abdulrahim v Council and Commission
   (Case T-127/09)
   2009/C 167/26
   Language of the case: English

      Parties

      Applicant: Abdulbasit Abdulrahim (London, United Kingdom) (represented by: J. Jones, Barrister and M. Arani, Solicitor)

      Defendants: Council of the European Union and Commission of the European Communities

      Form of order sought

               —

               annul in whole or in part Regulation (EC) No 881/2002, as amended by the Commission Regulation (EC) No 1330/2008, and/or the Commission Regulation (EC) No 1330/2008, insofar as they are of direct and individual concern to the Applicant;

               —

               or, in the alternative, to declare Council Regulation (EC) No 881/2002 and/or Commission Regulation (EC) No 1330/2008 to be inapplicable to the applicant;

               —

               or, in the alternative, to consider the basis for listing of the Applicant’s name in Annex I of the Council Regulation (EC) No 881/2002 and determine whether the Commission’s decision to add the applicant’s name in Annex I is appropriate and well-founded on the law and on the facts;

               —

               to order the defendants to provide for reasons and evidence for listing the applicant’s name in annex I of the Council Regulation (EC) No 881/2002, within a strict time-frame;

               —

               decide that listing of the applicant’s name in Annex I is inappropriate and unfounded on the law and on the facts and order the applicant’s name be deleted from the Annex I of the Council Regulation (EC) No 881/2002;

               —

               take such further action as it may deem appropriate;

               —

               order the defendant, the Council and/or the Commission to pay the applicant’s costs;

               —

               order the defendant, the Council and/or the Commission, to pay damages to the applicant for loss of earnings, loss of profit and non-material damage.

      Pleas in law and main arguments

   In the present case the applicant seeks the partial annulment of Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban as amended by Commission Regulation (EC) No 1330/2008 of 22 December 2008 (1) in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision. In the alternative, the applicant requests the Court, pursuant to Article 241 EC, to declare the Council Regulation No 881/2002 and Commission Regulation No 1330/2008 to be inapplicable to the applicant. He also requests the Court to order the defendants to pay damages.
   In support of its claims the applicant submits that the contested regulations infringe his fundamental human rights as guaranteed by the European Convention for the Protection of the Human Rights and Fundamental Freedoms and by the Charter of Fundamental Right and Freedoms of the European Union.
   First, he claims that the contested regulations infringe his right to be heard, right to effective judicial review and right to a fair trial as he has never been informed by the Council or the Commission of the reasons for his inclusion in Annex I and has never received any evidence justifying the listing decision. Thus, the applicant contends that he has not been given the possibility to comment on the grounds and reasons for including his name in Annex I of the contested Regulation and in consequence, he has not been able to challenge the listing decision before any judicial body.
   Second, the applicant submits that the contested measures infringe his right for respect for property and constitute a disproportionate interference with his private and family life.

      (1)  OJ 2008 L 345, p. 60


title: Action brought on 15 August 1996 by Preussag Stahl AG against the Commission of the European Communities (Case T-129/96)

text:
26 . 10 . 96          EN                  Official Journal of the European Communities                                No C 318/ 17
Action brought on 14 August 1996 by Giorgio Lebedef                  which cannot supersede the Staff Regulations or the general
  against the Commission of the European Communities                 principles governing the right of association, one of the
                       ( Case T-128/ 96 )                            fundamental expressions of which is the free circulation of
                                                                     information and dissemination of written material .
                         ( 96/C 318/32 )
                                                                     It is also alleged that the Commission acted contrary to the
                (Language of the case: French)                       principle of the equal treatment of trade unions .
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 14 August 1996
by Giorgio Lebedef, residing at Senningerberg
( Luxembourg ), represented by Gilles Bounéou, of the
Luxembourg Bar, with an address for service in
                                                                     Action brought on 15 August 1996 by Preussag Stahl AG
Luxembourg at the latter's Chambers, 15 avenue du
Bois .
                                                                       against the Commission of the European Communities
                                                                                ( Case T-129/96 )
                                                                                ( 96/C 318/33 )
The applicant claims that the Court should :
— annul the Commission 's decision of 26 October                                     (Language of the case: German)
     1995 ,
— annul in consequence the decision of 10 May 1996 ,                 An action against the Commission of the European
     which was notified on 14 May 1996 ,                             Communities was brought before the Court of First
                                                                     Instance of the European Communities on 15 August 1996
— order the Commission to pay the applicant the sum of               by Preussag Stahl AG, Salzgitter ( Federal Republic of
     Bfrs 200 000 by way of compensation, that being the             Germany ),        represented     by      Jochim    Sedemund ,
     amount which, in the applicant's estimation, is                 Rechtsanwalt, Berlin, with an address for service in
     equivalent to the damage suffered, or any other amount          Luxembourg at the Chambers of Aloyse May, 31 Grand '
                                                                     rue .
     to be decided by the Court,
— order the Commission to pay all costs and expenses                 The applicant claims that the Court should :
     incurred in the proceedings .
                                                                     — annul the Commission 's decision of 29 Mai 1996
Pleas in law and main arguments adduced in support                        concerning State aid to the Walzwerk Ilsenburg GmbH
                                                                           ( COM(96 ) 1642 final ),
The applicant, who is Secretary-General of the independent
trade union Action et Defense — Luxembourg ( A&D—L ),                — order the Commission to pay the costs .
challenges the Commission's refusal to allow the
distribution by its internal mail service of a leaflet common
to the four trade unions, the FFPE, the FPE, the SFIE and the         Pleas in law and main arguments adduced in support
A&D—L. That refusal is based on Article 21 of the
 framework agreement, under which only the signatory                 The action concerns aid which was granted in 1994 to
 organizations may use the Commission 's distribution                 Walzwerk Ilsenburg GmbH, which was at that time a legally
 systems . The A&D—L is not a party to that agreement.                independent subsidiary of the applicant company, Preussag
                                                                      Stahl AG. In 1995 it merged with its parent company. The
 The applicant alleges first that the Commission infringed the        applicant company is therefore the successor in title of the
 European civil servants' right of association, which is              undertaking which received aid .
 recognized by Article 24a of the Staff Regulations . On that
 point the applicant specifies that the very concept of               According to the applicant company, it was clear from the
 freedom of association entails, not only the right of officials      outset that the aid for the Grobblechstraße plant of
 or other servants freely to establish associations of their          Walzwerk Ilsenburg GmbH constituted 'regional
 choosing, but also the right of such associations to take part       investment aid' for the purposes of Article 5 of the fifth Steel
 in all legitime activities in defense of the professional            Aid Code, provision for which was made by general rules
 interests of their members . Consequently, the Community             approved by the Commission on 16 November 1994 and
 institutions should accept that trade unions and staff               that the aid benefited an undertaking operating in the
 associations must fulfil the role entrusted to them ,                territory of the former German Democratic Republic . It is
 particularly by acting to keep officials and other servants          also indisputable that the requirement of a ' reduction in the
 informed on all subjects of interest to staff.                       overall production capacity of that territory', within the
                                                                      meaning of the third subparagraph of Article 5 of the Code,
 In that connection the applicant adds that the agreement             had been satisfied, a fact of which the Commission was
 mentioned above constitutes an internal administrative act           already aware in December 1994 .
 ---pagebreak--- No C 318/18            EN                 Official Journal of the European Communities                                     26 . 10 . 96
The contested decision is based solely on the assertion that         Communities on 21 August 1996 by Gaetano Aquilino,
the period from 25 November 1994 ( date of receipt of                residing at Havre ( Belgium ), represented by Nicolas Lhoest,
notification ) and 31 December 1994 was insufficient for a           of the Brussels Bar, with an address for service in
substantive examination of the aid granted and that after            Luxemburg at the offices of Fiduciaire Myson, 1 rue
31 December 1994 the Commission 'no longer had the                   Glesener .
authority' to determine the compatibility of an aid project
with Article 5 of the Code .
                                                                     The applicant claims that the Court should:
The applicant considers that the contested decision should
be annulled on the following grounds :                               — annul the Commission 's note of 25 October 1995
— the Commission 's contention that it had insufficient
                                                                         communicating the decision to recover 91 working days
                                                                         from the applicant's salary for unjustified absences
    time to determine the compatibility of the aid in question           between 9 March 1994 and 15 February 1995 ,
    with the common market is incorrect, and is grossly
    discriminatory against the applicant company by
    comparison with other steel undertakings ( EKO-Stahl ).          — order the Council to reimburse the applicant in full in
    It is clear from the actual wording of Article 5 of the              respect of sums deducted from his salary in
    Code that that provision is concerned solely with the                implementation of the Council's decision of 25 October
    substantive aspects of the question whether aid is in                1995 , together with the interest due from the respective
    conformity with the Code . It makes no mention                       dates of deduction,
    whatsoever of time limits within which the Commission
    must take decisions . Rather it provides that the general        — order the Council to pay the costs of the proceedings in
    exemption for regional aid in East Germany must cease                their entirety.
    at the end of 1994 . The Code nowhere prohibits the
    Commission from making a finding after 31 December
    1994 as to the substantive compatibility of aid exempted         Pleas in law and main arguments adduced in support
    pursuant to Article 5 ,
— the Commission's argument that it could not                        The applicant, an official in grade D 1 , contests the
    retrospectively determine the compatibility of the aid in        appointing authority's decision to deem unauthorized
    question with the common market is invalid,                      certain absences which, in his view, were covered by a
                                                                     medical certificate issued in the prescribed manner, and to
— the Commission abused its discretionary powers by                  recover from his salary the amount corresponding to the
    failing to take into consideration the legal interests of the    period of allegedly unjustified absences .
    applicant company or its legitimate expectations with
    regard to the substantive compatibility of the aid with          The applicant points out that, in the course of his duties, he
    the Code,                                                        was obliged over the years to carry and manhandle a large
                                                                     number of packages, to walk long distances and often to
— the decision infringes Articles 5 and 15 of the ECSC               remain in a standing position . Those forms of activity are
    Treaty . Contrary to the judgments of the Court of               not advisable for people who, like the applicant, suffer from
   Justice in the Boussac and Tubermeuse cases, the                  back problems. That is why on several occasions both the
    Commission has treated a mere alleged non-observance             doctors who treated him and the administration 's medical
    of a time-limit as a ground for demanding repayment of           officer called on the Council to find the applicant a job for
    aid which was substantively compatible with the                  which he was physically suited . No action was taken on
    common market in steel . There is no adequate statement          those suggestions .
    of reasons to explain why the Commission could not still
    determine the compatibility of the aid with Article 5 of
    the Code after 31 December 1994 , if all the necessary           The applicant points out above all that his absences were
    conditions were satisfied before that date .                     always circumstantiated by medical certificates. However,
                                                                     as from March 1994 the Council began to describe them as
                                                                     unjustified , although no medical examination cast doubt on
                                                                     the validity of those certificates, the institution itself did not
                                                                     think it necessary to have the applicant undergo a fresh
                                                                     medical examination and the Invalidity Committee was
                                                                     never convened .
Action brought on 21 August 1996 by Gaetano Aquilino
         against the Council of the European Union
                        ( Case T-130/96 )
                                                                     The applicant argues that the Council infringed Articles 59
                                                                     and 60 of the Staff Regulations, and acted in breach of the
                          ( 96/C 318/34 )                            principle that acts must be accompanied by a statement of
                                                                     reasons and contrary to its duty to have regard for the
                (Language of the case: French)                       welfare of officials .
An action against the Council of the European Union was
brought before the Court of First Instance of the European


title: Case T-81/15: Judgment of the General Court of 13 April 2016 — Facchinello v EUIPO — Olimpia Splendid (Synthesis) (EU trade mark — Revocation proceedings — EU figurative mark Synthesis — Absence of genuine use of the mark — Article 51(1)(a) of Regulation (EC) No 207/2009 — Evidence presented for the first time before the General Court)

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/27

         Judgment of the General Court of 13 April 2016 — Facchinello v EUIPO — Olimpia Splendid (Synthesis)
   (Case T-81/15) (1)

   ((EU trade mark - Revocation proceedings - EU figurative mark Synthesis - Absence of genuine use of the mark - Article 51(1)(a) of Regulation (EC) No 207/2009 - Evidence presented for the first time before the General Court))
   (2016/C 191/35)
   Language of the case: Italian

      Parties

      Applicant: Danila Facchinello (Molinella, Italy) (represented by: F. Torlontano, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: M. Capostagno and A. Folliard-Monguiral, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Olimpia Splendid Spa (Gualtieri, Italy) (represented by: A. Ferrarese and G. Ferrarese, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 21 November 2014 (Case R 2169/2013-1), relating to revocation proceedings between Olimpia Splendid SpA and Ms Danila Facchinello.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Ms Danila Facchinello to pay the costs.

      (1)  OJ C 118, 13.4.2015.


title: Case C-14/02: Reference for a preliminary ruling by the Conseil d'État, Belgium, by order of 8 January 2002 in the case of ATRAL SA against the Belgian State

text:
C 68/6                EN                   Official Journal of the European Communities                                     16.3.2002
Reference for a preliminary ruling by the Tribunale                   d’État (Council of State), Belgium, of 8 January 2002, received
Amministrativo Regionale per la Lombardia, Sezione                    at the Court Registry on 22 January 2002, for a preliminary
Staccata di Brescia by order of 13 November 2001 in the               ruling in the case of ATRAL SA against the Belgian State, on
case of Casearia Bresciana Ca.bre.S.C.R.L. and Others                 the following questions:
against Azienda di Stato per gli Interventi nel Mercato
Agricolo (State Agricultural Market Intervention Body,
                             A.I.M.A.)
                                                                      A.    Should Council Directive 73/23/EEC (1) of 19 February
                         (Case C-13/02)                                     1973 on the harmonisation of the laws of Member States
                                                                            relating to electrical equipment designed for use within
                         (2002/C 68/12)                                     certain voltage limits, Council Directive 89/336/EEC (2)
                                                                            of 3 May 1989 on the approximation of the laws of the
                                                                            Member States relating to electromagnetic compatibility
                                                                            and Directive 1999/5/EC (3) of 9 March 1999 of the
Reference has been made to the Court of Justice of the                      European Parliament and of the Council on radio equip-
European Communities by order of the Tribunale Amministra-                  ment and telecommunications terminal equipment and
tivo Regionale per la Lombardia, Sezione Staccata di Brescia                the mutual recognition of their conformity of 9 March
(Regional Administrative Court for Lombardy, Brescia Div-                   1999 be interpreted:
ision) of 13 November 2001, received at the Court Registry
on 17 January 2002, for a preliminary ruling in the case of
Casearia Bresciana Ca.bre. S.C.R.L. and Others against Azienda
di Stato per gli interventi nel mercato agricolo (State Agricul-            (a)   as applicable to alarm systems and networks, in
tural Market Intervention Body, A.I.M.A. on the following                         particular to products of that type which use radio
questions:                                                                        transmission, commonly known as wireless alarm
                                                                                systems,
1.   May the provisions contained in Articles 1 and 4 of
     Council Regulation (EEC) No 3950/92 (1) of 28 December
     1992 and Articles 3 and 4 of Commission Regulation
     (EEC) No 536/93 (2) of 9 March 1993 be interpreted as                  (b) and, if the answer thereto is in the affirmative, as
     meaning that it is possible, in cases of administrative or                   producing sufficiently significant harmonisation in
     judicial challenge to the relevant measures, to derogate                     that field that national provisions governing the
     from the time-limits prescribed for the allocation of                        same field, such as Article 12 of the Law of 10 April
     quotas and the operation of adjustments and levies?                          1990 on caretaking firms, security firms and internal
                                                                                caretaking services and the Royal Decree of 23 April
If not,                                                                           1999 laying down the procedure for approving the
                                                                                alarm systems and networks referred to in the Law
2.   Are the provisions contained in Articles 1 and 4 of                          of 10 April 1990, must necessarily conform to
     Council Regulation (EEC) No 3950/92 of 28 December                           them?
     1992 and Articles 3 and 4 of Commission Regulation
     (EEC) No 534/93 of 9 March 1993 valid, in the light of
     Article 39 of the EC Treaty (now article 33), in so far as
     they do not provide that derogations may be made                 B.    In the event that the reply to the first question is in the
     from the periods prescribed by those provisions for                    affirmative:
     the allocation of individual reference quantities, for
     adjustments and levies in cases of administrative or
     judicial challenge to those provisions?
                                                                            Should Article 3 of Council Directive 73/23/EEC of
                                                                            19 February 1973, Article 5 of Council Directive
(1) OJ L 405, 31.12.1992, p. 1.                                             89/336/EEC of 3 May 1989 and Article 6(1) of Directive
(2) OJ L 57 of 10.3.1993, p. 12.
                                                                            1999/5/EC of the European Parliament and of the Council
                                                                            of 9 March 1999 be interpreted as prohibiting national
                                                                            provisions which, as do Article 12 of the Law of 10 April
                                                                            1990 and the Royal Decree of 23 April 1999, make the
                                                                            placing on the market in a Member State of all alarm
                                                                            systems and networks lawfully produced and/or marketed
Reference for a preliminary ruling by the Conseil d’État,
                                                                            in another Member State (...) subject to a prior authoris-
Belgium, by order of 8 January 2002 in the case of ATRAL
                                                                            ation procedure relating to components of those alarm
                  SA against the Belgian State
                                                                            systems and networks which satisfy the requirements of
                                                                            the directives referred to?
                         (Case C-14/02)
                         (2002/C 68/13)
                                                                            Secondly, should Council Directive 73/23/EEC of 19 Feb-
                                                                            ruary 1973, Council Directive 89/336/EEC of 3 May
Reference has been made to the Court of Justice of the                      1989 and Directive 1999/5/EC of the European Parlia-
European Communities by order of the Conseil                                ment and of the Council of 9 March 1999 be interpreted
 ---pagebreak--- 16.3.2002             EN                      Official Journal of the European Communities                                         C 68/7
     as establishing the essential requirements, in relation                  Should Articles 28 to 30 of the EC Treaty be interpreted
     to alarm systems and networks, for electrical safety,                    as meaning that the prohibition on quantitative restric-
     electromagnetic compatibility and radio equipment and,                   tions on imports and on measures having equivalent
     consequently, as precluding national provisions, such as                 effect applies to national provisions, such as Article 12 of
     the Royal Decree of 23 April 1999, which make the                        the Law of 10 April 1990 and the Royal Decree of
     placing on the market in Belgium of all alarm systems                    23 April 1999, which impose a prior approval procedure
     and networks subject to requirements other than those                    for the placing on the market of a Member State of
     established in those Directives?                                         all alarm systems and networks lawfully manufactured
                                                                              and/or marketed in another Member State?
     Should Articles 28 to 30 of the EC Treaty be interpreted
     as meaning that the prohibition on quantitative restric-                 Should Articles 28 to 30 of the EC Treaty be interpreted
     tions on imports and on measures having equivalent                       as meaning that the prohibition on quantitative restric-
     effect applies to national provisions, such as the Royal                 tions on imports and on measures having equivalent
     Decree of 23 April 1999, which require components of                     effect applies to national provisions, such as the second
     alarm systems and networks not covered by Community                      paragraph of Article 2 of the Royal Decree of 23 April
     harmonisation measures to undergo the same tests in an                   1999, which require alarm systems and networks lawfully
     authorised laboratory as equipment placed on the market                  manufactured and/or marketed in another Member State
     for the first time?                                                      to carry a national conformity mark?
                                                                              Should Articles 28 to 30 of the EC Treaty be interpreted
     Should Articles 28 to 30 of the EC Treaty be interpreted                 as meaning that the prohibition on quantitative restric-
     as meaning that the prohibition on quantitative restric-                 tions on imports and on measures having equivalent
     tions on imports and on measures having equivalent                       effect applies to national provisions, such as Article 9 of
     effect allows a Member State to adopt national provisions,               the Royal Decree of 23 April 1999, which require
     such as the Royal Decree of 23 April 1999, which makes                   components of alarm systems and networks to undergo
     the placing on the market in a Member State of all alarm                 the same tests in an authorised laboratory as equipment
     systems and networks lawfully manufactured and/or                        being placed on the market for the first time?
     marketed in another Member State subject to prior
     approval and to tests and specific technical requirements,
     merely relying in the abstract on an overriding reason or
     a compelling requirement, such as consumer protection                    Should Articles 28 to 30 of the EC Treaty be interpreted
     and/or public policy, which the State considers the                      as meaning that the prohibition on quantitative restric-
     Community harmonisation measures do not take into                        tions on imports and on measures having equivalent
     account or, in other words, without specifically demon-                  effect applies to national provisions, such as Article 9 of
     strating either that the overriding reason or compelling                 the Royal Decree of 23 April 1999, which make the
     requirement relied on actually exists or that the Com-                   placing on the market in a Member State of all alarm
     munity harmonisation measures do not already take                        systems and networks lawfully manufactured and/or
     that overriding reason or compelling requirement into                    marketed in another Member State subject to prior
     account or that the restrictive measure is proportionate                 approval and to tests and specific technical requirements,
     to the aim pursued?                                                      merely relying in the abstract on an overriding reason or
                                                                              a compelling requirement, such as consumer protection
                                                                              and/or public policy, or, in other words, without specifi-
                                                                              cally demonstrating either that the overriding reason or
C.   In the event that the reply to the first question is negative:           compelling requirement relied on actually exists or that
                                                                              the restrictive measure is proportionate to the aim
                                                                              pursued?
     Should Articles 28 to 30 of the EC Treaty be interpreted
     as meaning that the prohibition on quantitative restric-
     tions on imports and on measures having equivalent
     effect applies to national provisions, such as Article 9 of         (1) OJ L 77, p. 29.
                                                                         (2) OJ L 139, p. 19.
     Royal Decree of 23 April 1999, which, rather than
                                                                         (3) OJ L 91, p. 10.
     applying the requirement of mutual recognition to the
     alarm systems and networks themselves, confine the
     requirement of mutual recognition to the tests which
     alarm systems and networks lawfully manufactured
     and/or marketed in another Member State must undergo
     in order to obtain authorisation to be placed on the
     market of a Member State?


title: Case C-112/14: Action brought on 7 March 2014 — European Commission v United Kingdom of Great Britain and Northern Ireland

text:
               16.6.2014

               EN

               Official Journal of the European Union

               C 184/11

         Action brought on 7 March 2014 — European Commission v United Kingdom of Great Britain and Northern Ireland
   (Case C-112/14)
   2014/C 184/14
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: R. Lyal, L. Armati, agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland

      The applicant claims that the Court should:

               —

               declare that by adopting and maintaining tax legislation concerning attribution of gains to members of non-resident companies which provides for a difference in treatment between domestic and cross-border activities, the United Kingdom has failed to fulfil its obligations under Article 63 TFEU and Article 40 EEA or, in the alternative, Article 49 TFEU and Article 31 EEA;

               —

               order United Kingdom of Great Britain and Northern Ireland to pay the costs.

      Pleas in law and main arguments

         The national legislation in issue

   Section 13 of the Taxation of Chargeable Gains Act 1992 provides that where certain types of non-resident company earn profits, those profits are immediately taxable in the hands of shareholders and other participators who are residents of the United Kingdom, whether or not the latter in fact receive any income.

         The main argument

   UK residents are liable for tax on the profits of certain non-resident companies in which they are participators, while would not be so liable if the companies concerned were resident in the United Kingdom. That difference in taxation is likely to discourage UK taxpayers from investing in such non-resident companies, contrary to Article 63 TFEU and Article 40 EEA.
   The measure in issue may prevent certain types of tax avoidance and abuse. However, its application is not limited to hypotheses of tax avoidance or abuse and the measure is therefore not justified.