20150731015616672015/C 270/022262013CJC27020150817EN01ENINFO_JUDICIAL201506112211Joined Cases C-226/13, C-245/13, C-247/13 and C-578/13: Judgment of the Court (First Chamber) of 11 June 2015 (request for a preliminary ruling from the Landgericht Wiesbaden — Germany) — Stefan Fahnenbrock (C-226/13), Holger Priestoph (C-245/13), Matteo Antonio Priestoph (C-245/13), Pia Antonia Priestoph (C-245/13), Rudolf Reznicek (C-247/13), Hans-Jürgen Kickler (C-578/13), Walther Wöhlk (C-578/13), Zahnärztekammer Schleswig-Holstein Versorgungswerk (C-578/13) v Hellenic Republic (References for a preliminary ruling — Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation (EC) No 1393/2007 — Article 1(1) — Concept of civil or commercial matters — Liability of the State for ‘acta iure imperii’)
 ---documentbreak--- C2702015EN210120150611EN00022121Judgment of the Court (First Chamber) of 11 June 2015 (request for a preliminary ruling from the Landgericht Wiesbaden — Germany) — Stefan Fahnenbrock (C-226/13), Holger Priestoph (C-245/13), Matteo Antonio Priestoph (C-245/13), Pia Antonia Priestoph (C-245/13), Rudolf Reznicek (C-247/13), Hans-Jürgen Kickler (C-578/13), Walther Wöhlk (C-578/13), Zahnärztekammer Schleswig-Holstein Versorgungswerk (C-578/13) v Hellenic Republic
   (Joined Cases C-226/13, C-245/13, C-247/13 and C-578/13) (
         1
      )
   ‛(References for a preliminary ruling — Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — Regulation (EC) No 1393/2007 — Article 1(1) — Concept of civil or commercial matters — Liability of the State for ‘acta iure imperii’)’2015/C 270/02Language of the case: German
      Referring court

   Landgericht Wiesbaden

      Parties to the main proceedings

      Applicants: Stefan Fahnenbrock (C-226/13), Holger Priestoph (C-245/13), Matteo Antonio Priestoph (C-245/13), Pia Antonia Priestoph (C-245/13), Rudolf Reznicek (C-247/13), Hans-Jürgen Kickler (C-578/13), Walther Wöhlk (C-578/13), Zahnärztekammer Schleswig-Holstein Versorgungswerk (C-578/13)

      Defendant: Hellenic Republic

      Operative part of the judgment

   Article 1(1) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000. must be interpreted as meaning that legal actions for compensation for disturbance of ownership and property rights, contractual performance and damages, such as those at issue in the main proceedings, brought by private persons who are holders of government bonds against the issuing State, fall within the scope of that regulation in so far as it does not appear that they are manifestly outside the concept of civil or commercial matters.
   (
         1
      )	OJ C 215, 27.7.2013.

      OJ C 24, 25.1.2014.


title: Case T-354/15: Action brought on 2 July 2015 — Allergopharma v Commission

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/11

         Action brought on 2 July 2015 — Allergopharma v Commission
   (Case T-354/15)
   (2015/C 328/10)
   Language of the case: German

      Parties

      Applicant: Allergopharma GmbH & Co. KG (Reinbek, Germany) (represented by: T. Müller-Ibold and F.-C. Laprévote, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission’s decision of 27 March 2015 authorising an aid scheme for German pharmaceutical companies in financial difficulties through the exemptions from mandatory rebates (SA.34881 (2013/C) (ex 2013/NN) (ex 2012/CP));

               —

               Order the European Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging errors of law, infringement of the Treaty and breach of the principles of non-discrimination and protection of legitimate expectations in consequence of the failure to have regard to the rescuing and restructuring guidelines (1)

                           —

                           By the first plea in law, the applicant claims that the decision breaches the general principles of equal treatment and protection of legitimate expectations and errs in law in departing unlawfully from the binding Guidelines, even though the Guidelines make no provision for any such departure. The reasons given, that the exemptions are not aimed at keeping inefficient firms artificially on the market, are erroneous because (i) they distinguish between efficient and inefficient undertakings, even though the Guidelines do not do so, and (ii) the Commission’s interpretation of ‘efficiency’ is incompatible with fundamental principles of the law on State aid.

               2.

               Second plea in law, alleging errors of law, errors of fact and manifest errors of assessment in the application of Article 107(3)(c) TFEU

                           —

                           By the second plea in law, the applicant claims that, even on the assumption that the Commission can measure the exemptions directly against Article 107(3)(c) TFEU, the decision is vitiated by a number of errors of law and manifest errors of assessment because it does not clearly define the objective of the aid and thus fails to explain why the aid is necessary for achieving the objective. In particular, in the applicant’s view, the Commission has failed to take into account the fact that the authorised operating aid to firms in difficulty is, according to the case-law, fundamentally unsuited to achieving objectives of common interest, and that the exemptions have no incentive effect.

               3.

               Third plea in law, alleging infringement of essential procedural safeguards and of the right to a hearing

                           —

                           By the third plea in law, the applicant claims that — in breach of the right to a hearing and the procedural safeguards under Article 6(1) of Regulation (EC) No 659/1999 (2) — the disputed decision goes far beyond clarification of the issues raised in the initiation decision. First, the contested decision concludes that it is inappropriate to measure the aid against the Guidelines, whereas the initiation decision emphasises that that is ‘the only legal basis for compatibility’. Secondly, the contested decision concludes that it is — exceptionally — appropriate for the aid to be measured against Article 107(3)(c) TFEU, even though there is nothing in the initiation decision that would indicate such a possibility. As a result the applicant was deprived of the opportunity to comment on those issues which, so far as the Commission was concerned, were ultimately decisive.

               4.

               Fourth plea in law, alleging infringement of the obligation to state reasons

                           —

                           By the fourth plea in law, the applicant claims that the contested decision is vitiated by serious defects of reasoning, in that the Commission failed to put forward any reasonable considerations in relation to numerous points. In particular, no reasonable grounds have been put forward (i) as regards the application of the derogation provided for by Article 107(3)(c) TFEU and (ii) as regards the exceptional circumstances that would justify the authorisation of operating aid as in the present case.

      (1)  Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2) (‘the Guidelines’).

      (2)  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).


title: Case C-55/06: Judgment of the Court (Fourth Chamber) of 24 April 2008 (reference for a preliminary ruling from the Verwaltungsgericht Köln (Administrative Court, Cologne — Germany) — Arcor AG & Co. KG v Bundesrepublik Deutschland (Telecommunications — Regulation (EC) No 2887/2000 — Access to the local loop — Principle of cost-orientation — Costs — Interest on the capital invested — Depreciation of fixed assets — Valuation of local telecommunications infrastructures — Current costs and historic costs — Calculation basis — Actual costs — Costs already paid and forward looking costs — Proof of costs — Bottom-up and top-down analytical models — Detailed national legislation — Margin of discretion of the national regulatory authorities — Judicial review — Procedural autonomy of the Member States — Principles of equivalence and effectiveness — Challenge by the beneficiaries before the courts of decisions authorising the rates of the notified operator — Burden of proof — Supervisory and judicial procedures)

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/3

         Judgment of the Court (Fourth Chamber) of 24 April 2008 (reference for a preliminary ruling from the Verwaltungsgericht Köln (Administrative Court, Cologne — Germany) — Arcor AG & Co. KG v Bundesrepublik Deutschland
   (Case C-55/06) (1)

   (Telecommunications - Regulation (EC) No 2887/2000 - Access to the local loop - Principle of cost-orientation - Costs - Interest on the capital invested - Depreciation of fixed assets - Valuation of local telecommunications infrastructures - Current costs and historic costs - Calculation basis - Actual costs - Costs already paid and forward looking costs - Proof of costs - ‘Bottom-up’ and ‘top-down’ analytical models - Detailed national legislation - Margin of discretion of the national regulatory authorities - Judicial review - Procedural autonomy of the Member States - Principles of equivalence and effectiveness - Challenge by the beneficiaries before the courts of decisions authorising the rates of the notified operator - Burden of proof - Supervisory and judicial procedures)
   (2008/C 142/03)
   Language of the case: German
   Referring court
   Verwaltungsgericht Köln (Administrative Court, Cologne)
   Parties to the main proceedings

      Applicant: Arcor AG & Co. KG,

      Defendant: Bundesrepublik Deutschland

      Intervener: Deutsche Telekom AG
   Re:
   Reference for a preliminary ruling — Verwaltungsgericht Köln — Interpretation of Article 1(4), Article 3(3) and Article 4 of Regulation (EC) No 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop (OJ 2000 L 336, p. 4)
   Operative part of the judgment

               1.

               The interest on the capital invested and the depreciation of the fixed assets deployed for the initial implementation of the local loop are among the costs to be taken into account in accordance with the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, laid down in Article 3(3) of Regulation (EC) No 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop.

               2.

               When applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, laid down in Article 3(3) of Regulation No 2887/2000, in order to determine the calculation basis of the costs of the notified operator, the national regulatory authorities have to take account of actual costs, namely costs already paid by the notified operator and forward looking costs, the latter being based, where relevant, on an estimation of the costs of replacing the network or certain parts thereof.

               3.

               Pursuant to Article 4(2)(b) of Regulation No 2887/2000, the national regulatory authority may request notified operators to supply relevant information on the documents justifying the costs taken into account when applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation. Since Community law does not contain any provision concerning the accounting documents to be checked, it is the task of the national regulatory authorities alone, in accordance with the law applicable, to examine whether, for the purposes of cost accounting, the documents produced are the most appropriate ones.

               4.

               When national regulatory authorities are applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, Community law does not preclude them, in the absence of complete and comprehensible accounting documents, from determining the costs on the basis of an analytical bottom-up or top-down cost model.

               5.

               The possibility granted to the Member States, in Article 1(4) of Regulation No 2887/2000, to adopt detailed national measures cannot render inapplicable the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation as laid down in Article 3(3) of that regulation.

               6.

               It is apparent from Article 4(1) and (2) of Regulation No 2887/2000 that, when examining the rates of notified operators for the provision of unbundled access to their local loop in light of the pricing principle laid down in Article 3(3) of that regulation, the national regulatory authorities have a broad discretion concerning the assessment of the various aspects of those tariffs, including the discretion to change prices, and thus the proposed tariffs. That broad discretion also relates to the costs incurred by the notified operators, such as interest on invested capital and depreciation of fixed assets, the calculation basis of those costs and the cost accounting models used to prove them.

               7.

               It is a matter solely for the Member States, within the context of their procedural autonomy, to determine, in accordance with the principles of equivalence and effectiveness of judicial protection, the competent court, the nature of the dispute and, consequently, the detailed rules of judicial review with respect to decisions of the national regulatory authorities concerning the authorisation of rates of notified operators for unbundled access to their local loop. In those circumstances, the national courts must ensure that the obligations resulting from Regulation No 2887/2000 regarding unbundled access to the local loop by means of procedures consistent with the pricing principle laid down in Article 3(3) of that regulation are in fact complied with in transparent, fair and non-discriminatory conditions.

               8.

               Article 4(1) of Regulation No 2887/2000, read in conjunction with Article 5a(3) of Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision, as amended by Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997, requires that the national courts interpret and apply the domestic rules of procedure governing the bringing of appeals in such a way that a decision of the national regulatory authority concerning the authorisation of rates for unbundled access to the local loop may be challenged before the courts, not only by the undertaking to which such a decision is addressed but also by beneficiaries within the meaning of that regulation whose rights are potentially affected by it.

               9.

               Regulation No 2887/2000 must be interpreted as meaning that, during the procedure supervising the pricing for unbundled access to the local loop conducted by a national regulatory authority pursuant to Article 4 of that regulation, it is for the notified operator to provide the evidence that its rates respect the principle that rates are to be set on the basis of cost-orientation. On the other hand, it is for the Member States to allocate the burden of proof between the national regulatory authority which made the decision to authorise the rates of the notified operator and the beneficiary challenging that decision. It is also for the Member States to establish, in accordance with their rules of procedure and the Community principles of effectiveness and equivalence of judicial protection, the rules on the allocation of that burden of proof when a decision of the national regulatory authority authorising the rates of a notified operator for unbundled access to its local loop is challenged before the courts.

      (1)  OJ C 96, 22.4.2006.


title: Case C-319/09 P: Appeal brought on 11 August 2009 by ACEA SpA against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-297/02 ACEA S.p.A. v Commission of the European Communities

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/38

         Appeal brought on 11 August 2009 by ACEA SpA against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-297/02 ACEA S.p.A. v Commission of the European Communities
   (Case C-319/09 P)
   2009/C 267/69
   Language of the case: Italian

      Parties

      Appellant: ACEA SpA (represented by: L. Radicati di Brozolo, A. Giardina and T. Ubaldi, avvocati)

      Other parties to the proceedings: Commission of the Euroean Communities, ACSM Como SpA, AEM — Azienda Energetica Metropolitana Torino SpA

      Form of order sought

               —

               Set aside the judgment in Case T-297/02 (‘the judgment’) in so far as it omits to criticise the failure to carry out a differentiated examination of the various situations in which the three-year income tax exemption was applicable and upholds the general and abstract classification of the three-year exemption as State aid;

               —

               set aside the judgment in so far as it fails to recognise that the three-year income tax exemption should be classified as existing aid within the meaning of Article 1(b)(v) of Regulation (EC) No 659/1999; (1)

               —

               set aside the judgment in so far as it finds that the order for recovery in Article 3 of the decision is lawful; (2)

               —

               order the Commission to pay the costs of the proceedings at first instance and the appeal proceedings.

      Pleas in law and main arguments

   The appellant relies on four grounds of appeal in support of its claims:
   The first ground concerns an error of law in the application of Article 88 EC and Regulation (EC) No 659/1999 and a failure to state adequate reasons in the judgment under appeal, with reference to the failure to carry out a differentiated examination of the various situations in which the three-year income tax exemption provided for in Article 3(70) of Law No 549/1995 and Article 66(14) of Decree Law No 331/1993 was applicable. The Court of First Instance erred in law and failed to state adequate reasons in that, in the light of the particular circumstances of the case and the information available to the Commission, it failed to criticise the abstract and incomplete nature of the investigation and the conclusions reached by the Commission in the contested decision by reference to the various situations in which the tax exemption was applicable.
   The second ground concerns the misapplication by the Court of First Instance of Article 87(1) EC and its failure to state adequate reasons in so far as it upheld the general and abstract classification of the three-year exemption as State aid. In particular, the Court of First Instance failed properly to verify the circumstances of the case and the assumptions on which the Commission based its decision to classify the measure in question as aid, which it was, in fact, required to do in accordance with its duty to carry out a comprehensive review. The Court of First Instance therefore confirmed the Commission’s decision without it having been demonstrated, at least by reference to certain sectors affected by the exemption, that two of the conditions laid down in Article 87(1) EC had been satisfied: that the measure in question was capable of distorting competition and adversely affecting trade between Member States.
   The third ground relates to insufficient and contradictory reasoning and an error of law in the interpretation and application of Article 88(1) EC and Article 1(b)(v) of Regulation (EC) No 659/1999 on account of the fact that the three-year income tax exemption was classified as new aid. The Court of First Instance did not criticise the failure in the present case to classify the measure in question as existing aid within the meaning of Article 1(b)(v) of Regulation (EC) No 659/1999, even though it is apparent from the context and the circumstances of the case, at least as regards some of the sectors affected by the three-year exemption, that the classification of the measure as new aid was not justified.
   The fourth ground concerns an error of law and defective reasoning with regard to the lawfulness of the order for recovery in Article 3 of the contested decision. In view of the circumstances of the case, the Court of First Instance erred in finding that the order for recovery in the enacting terms of the decision could be applied in the broadest possible terms and unconditionally, even though the decision contained merely an abstract, general and incomplete assessment of the tax exemption.

      (1)  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).

      (2)  Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).


No C 119/30        [ EN |                 Official Journal of the European Communities                                13 . 5 . 95
    law in that the Commission unlawfully refused to grant               — denied the applicant the right to be heard and acted
    a declaration that there were no grounds for the                         in breach of the principle of good administration.
    application of the provisions of Article 2 of Regulation
    (EEC ) No 1017/68 and/or Article 85 ( 1 ) of the EC              (!) OJ No L 354, 31 . 12 . 1994, p. 66 .
    Treaty and Article 53 ( 1 ) of the EEA Agreement. The
    Commission therefore has no jurisdiction under
    Article 5 of the Regulation and/or Article 85 ( 3 ) of the
    EC Treaty and Article 53 ( 3 ) of the EEA Agreement to                Removal from the register of Case T-518/93 i 1 )
    impose the conditions .                                                                    95/C 119/56
    Alternatively,                                                                  (Language of the case: French)
                                                                     By order of 28 March 1995 the President of the Second
2. The Decision is founded on an incorrect and incomplete            Chamber ( Extended Composition) of the Court of First
    assessment of the facts, vitiated by manifest error of law       Instance of the European Communities ordered the removal
    in that the conditions are unnecessary for the purpose of        from the register of Case T-518/93 : Anton Durbeck GmbH
    rendering inapplicable Article 2 of the Regulation               v. Council of the European Union and Commission of the
    and/or Article 85 ( 1 ) of the EC Treaty and Article 53 ( 1 )    European Communities .
    of the EEA Agreement.
                                                                     (M OJ No C 188 , 10 . 7. 1993 .
3 . The conditions are not necessary and are
    disproportionate to any alleged restrictions on
    competition. The conditions are also uncertain in their
    application and unduly burdensome. Consequently, the                  Removal from the register of Case T-282/94 ( ] )
    protection of the imposition of the conditions offends                                   ( 95/C 119/57
    against the principles of Community law of the
    protection of legitimate expectations, proportionality                          (Language of the case: Dutch)
    and legal certainty.
                                                                     By order of 17 March 1995 the President of the Third
                                                                     Chamber Court of First Instance of the European
4 . In imposing the conditions, the Commission has                   Communities ordered the removal from the register of
    exceeded its competence and misused its powers by                Case T-282/94: La Société en Commandite Jurope v.
    extending to the Railways, in substance, the obligation          Commission of the European Communities .
    placed by Directive 91/440/EEC upon Eurotunnel as the
    infrastructure manager. The Commission has also                  (M OJ No C 304, 29 . 10 . 1994 .
    exercised its powers under Article 5 of the Regulation
    and/or Article 85 ( 3 ) of the EC Treaty and Article 53 ( 3 )
    of the EEA Agreement to matters governed by, and in a
    manner inconsistent with, Directive 91 /440/EEC. The                  Removal from the register of Case T-359/94 ( )
    imposition of the conditions is therefore both                                           ( 95/C 119/58 )
    discriminatory and unlawful.
                                                                                (Language of the case: German)
5 . The Commission has acted in breach of essential
    procedural requirements and also in breach of                    By order of 22 March 1995 the President of the Fourth
    Article 190 of the EC Treaty and the principle of                Chamber ( Extended Composition) of the Court of First
    Community law of natural justice, thereby vitiating the          Instance of the European Communities ordered the removal
    Decision, in that the Commission:                                from the register of Case T-359/94: Schmidt + Clemens
                                                                     GmbH + Co ., Edelstahlwerke Kaiserau v. Commission of
                                                                     the European Communities.
    — failed to adduce evidence and to provide adequate
        reasons for the Decision,                                    (!) OJ No C 370, 24 . 12 . 1994 .


title: Case C-280/05: Action brought on 11 July 2005 by the Commission of the European Communities against the Italian Republic

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/8

         Action brought on 11 July 2005 by the Commission of the European Communities against the Italian Republic
   (Case C-280/05)
   (2005/C 229/16)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 11 July 2005 by the Commission of the European Communities, represented by V. Di Bucci and E. Righini, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that, by failing to take, within the prescribed period, the necessary measures to withdraw the aid scheme considered unlawful and incompatible with the common market by Commission Decision 2004/800/EC of 30 March 2004 on the State aid scheme put into effect by Italy providing for urgent measures to assist employment (notified on 1 April 2004 under document number C(2004) 930; OJ 2004 L 352, p. 10) and to recover from the recipients the aid granted under that scheme, and in any event by failing to inform the Commission of such measures, the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that Decision and the EC Treaty;

               2.

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The decision of the Commission requires Italy to withdraw the aid scheme referred to in Article 1, to take ‘all necessary measures to recover from the recipients the aid granted under the scheme referred to in Article 1 which has been unlawfully made available to the recipients’ and to cancel ‘all outstanding payments of aid with effect from the date of this Decision’. It must, in addition, inform the Commission, within two months of notification of the Decision, of ‘the measures taken to comply with it’.
   Given that the decision was notified on 1 April 2004 the period for compliance expired on 1 June 2004.
   So far as concerns the obligation to recover the aid unlawfully paid, it must be stated that, on expiry of the period prescribed, the Italian Republic had not yet informed the Commission of the measures taken to comply with that obligation and that the requests for information by the Commission remained unanswered.
   It appears clear that the Italian Republic, by failing to take, within the prescribed period, the necessary measures to withdraw the aid scheme considered unlawful and incompatible with the common market by the decision of the Commission and to recover from the recipients the aid granted under that scheme, and in any event by failing to inform the Commission of such measures, has failed and continues to fail to fulfil its obligations under the fourth paragraph of Article 249 EC and Articles 2, 3 and 4 of that decision.


title: Case T-265/06: Judgment of the Court of First Instance of 12 February 2009 — Sara Lee/DE NV v OHIM — Cooperativa italiana di ristorazione (PIAZZA del SOLE) (Community trade mark — Opposition proceedings — Application for Community figurative mark PIAZZA del SOLE — Earlier national and international word marks PIAZZA and PIAZZA D'ORO — Relative ground for refusal — Lack of likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Lack of similarity of the signs)

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/23

         Judgment of the Court of First Instance of 12 February 2009 — Sara Lee/DE NV v OHIM — Cooperativa italiana di ristorazione (PIAZZA del SOLE)
   (Case T-265/06) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark PIAZZA del SOLE - Earlier national and international word marks PIAZZA and PIAZZA D'ORO - Relative ground for refusal - Lack of likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Lack of similarity of the signs)
   (2009/C 82/40)
   Language of the case: French
   Parties

      Applicant: Sara Lee/DE NV (Utrecht, Netherlands) (represented by: C. Hollier-Larousse, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Cooperativa italiana di ristorazione Soc. coop. rl (Reggio d'Emilia, Italy) (represented by: D. Caneva, lawyer)
   Re:
   Action brought against the decision of the Second Board of Appeal of OHIM of 5 July 2006 (Case R 235/2005-2) concerning opposition proceedings between Sara Lee/DE NV and Cooperativa italiana di ristorazione Soc. Coop. rl.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Sara Lee/DE NV to pay the costs.

      (1)  OJ C 294, 2.12.2006.


title: Action brought on 21 January 1999 by Løgstør Rør A/S against the European Commission (Case T-23/99)

text:
27.3.1999              EN                   Official Journal of the European Communities                                    C 86/31
Action brought on 21 January 1999 by Lùgstùr Rùr A/S                   Action brought on 21 January 1999 by Claudio d'Aloya
               against the European Commission                                   against Council of the European Union.
                         (Case T-23/99)                                                        (Case T-24/99)
                         (1999/C 86/53)                                                       (1999/C 86/54)
                                                                                (Language of the case: Italian)
                 (Language of the case: English)
                                                                       An action against the Council of the European Union was
An action against the European Commission was brought                  brought before the Court of First Instance of the European
before the Court of First Instance of the European                     Communities on 21 January 1999 by Claudio d'Aloya,
Communities on 21 January 1999 by Lùgstùr Rùr A/S,                     represented by Wilma Viscardini DonaÁ, assisted by Dr
represented by Denis Waelbroeck, of Liedekerke SimeÂon                 Gabriele DonaÁ, both of the Padua Bar, with an address for
Wessing Houthoff, and by Henrik Peyts, of Kromann &                    service in Luxembourg at the Chambers of Ernest Arendt,
Münter, with an address for service in Luxembourg at the               Rue Mathias Hardt.
Chambers of Arendt and Medernach, 8Ð10 Rue Mathias
Hardt.
                                                                       The applicant claims that the Court of First Instance
                                                                       should:
The applicant claims that the Court should:
                                                                       Ð Annul the decision notified by memorandum of
                                                                           26 March 1998 rejecting Mr d'Aloya's candidature for
                                                                           the post of Director (A2), in the Council Legal Service,
Ð annul the decision of the Commission of 21 October
                                                                           referred to in Staff Notice 2/98' of 5 January 1998;
     1998 in Case IV/35.691 (District Heating Pipes) in so
     far as it is addressed to it;
                                                                       Ð Annul the decision brought to the notice of the staff of
                                                                           the General Secretariat of the Council by Notice
Ð alternatively reduce substantially the fine imposed on                   No 137/98 of 2 November 1998, by which Ricardo
     it;                                                                   Gosalbo Bono was appointed, with effect from
                                                                           12 October 1998, as Director in the Council Legal
                                                                           Service;
Ð order the Commission to pay the costs.
                                                                       Ð Order the Council to pay whatever the Court
                                                                           considers just in respect of the non-material damage
                                                                           suffered by the applicant;
Pleas in law and main arguments adduced in support:
                                                                       Ð Order the Council to pay the costs.
The present action is brought against the decision of the
European Commission of 21 October 1998, as amended
by a decision of 6 November 1998, relating to a                        Pleas in law and main arguments adduced in support:
proceeding under Article 85 of the EC Treaty (1). The
contested decision finds that the applicant has committed
infringements of Article 85 of the EC Treaty and imposes
a fine of ECU 8 900 000.                                               The applicant objects to the rejection of his application
                                                                       for the post of Director in the Council's Legal Service.
The pleas in law and main arguments are similar to those               In support of his claims, the applicant alleges:
raised in Cases T-9/99, T-15/99, T-16/99 and T-17/99.
(1) See Cases T-9/99, T-15/99, T-16/99, T-17/99 and T-21/99.           Ð non-observance of the legal basis of the vacancy notice
                                                                           (No 2/98) for the vacant post: it was established that
                                                                           the recruitment procedure was to be based on
                                                                           Article 29(1)(a) of the Staff Regulations but the
                                                                           procedure resulted in the appointment of a candidate


title: Action brought on 11 July 1997 by Olivier Brunet and others against the Commission of the European Communities (Case T-206/97)

text:
10. 1. 98             EN                  Official Journal of the European Communities                                      C 7/19
Action brought on 11 July 1997 by Olivier Brunet and                 The applicant claims that the Court should:
others against the Commission of the European
                          Communities                                Ð annul the Commission's decision implicitly rejecting
                        (Case T-206/97)                                   the applicant's request that it give consideration to the
                           (98/C 7/56)                                    possible application of Article 31 (2) of the Staff
                                                                          Regulations,
                (Language of the case: French)
                                                                     Ð annul, in so far as may be necessary, the Commission's
An action against the Commission of the European                          decision of 11 April 1997 expressly rejecting the
Communities was brought before the Court of First                         applicant's complaint,
Instance of the European Communities on 11 July 1997
by Olivier Brunet, residing in Brussels, Luigi Brusa,                Ð order the defendant to pay all the costs.
residing at Brazzaville (Congo), Peter Cavendish, residing
in Brussels, HeÂleÁne Chraye, residing in Brussels, Stella da        Pleas in law and main arguments adduced in support:
Costa Santos, residing in Brussels, Tamara Diomede Basili,
residing in Brussels, Christina Laso Sanz, residing in
Brussels, GeÂrard Lhost, residing at Alsemberg (Belgium),            The pleas in law and main arguments are similar to those
Carlos Martinez Mongay, residing in Brussels, Viriato                relied on in Case T-16/97 (1).
Monteiro Da Silva, residing at Sint Stevens-Woluwe
(Belgium), Nicolioulas Panagiotis, residing in Brussels,             (1) OJ C 74, 8. 3. 1997, p. 27.
Carla Piccinni-Leopardi, residing in Brussels, Jorge
Manuel Pinheiro de Jesus Ferreira, residing in Brussels,
Angelo Salsi, residing in Brussels, and Graham Willmott,
residing at Genval (Belgium), represented by Marc-Albert
Lucas, of the LieÁge Bar, with an address for service in
Luxembourg at the Chambers of Evelyne Korn, 21, rue de               Action brought on 15 July 1997 by NoeÈlle Mattei against
Nassau.                                                                     the Commission of the European Communities
                                                                                (Case T-209/97)
The applicants claim that the Court should:
                                                                                (98/C 7/58)
Ð annul the Commission's            decision   rejecting  their
    requests to be regraded,                                                         (Language of the case: French)
Ð annul the Commission's            decision   rejecting  their      An action against the Commission of the European
    administrative complaints,                                       Communities was brought before the Court of First
                                                                     Instance of the European Communities on 15 July 1997
Ð order the defendant to pay the costs.                              by NoeÈlle Mattei, residing in Brussels, represented by
                                                                     Nicolas LhoeÈst, of the Brussels Bar, with an address for
Pleas in law and main arguments adduced in support:                  service in Luxembourg at Fiduciaire Myson SARL, 30, rue
                                                                     de Cessange.
The pleas in law and main arguments are the same as in
Case T-16/97 (1).                                                    The applicant claims that the Court should:
(1) OJ C 74, 8. 3. 1997, p. 27.                                      Ð annul the Commission's decision of 24 October 1996
                                                                          expressly rejecting the applicant's request that it give
                                                                          consideration to the possible application of
                                                                          Article 31 (2) of the Staff Regulations,
                                                                     Ð annul, in so far as may be necessary, the Commission's
Action brought on 15 July 1997 by Guy Tachelet against
                                                                          decision of 29 April 1997 expressly rejecting the
       the Commission of the European Communities
                                                                          applicant's complaint,
                        (Case T-208/97)
                           (98/C 7/57)                               Ð order the defendant to pay all the costs.
                (Language of the case: French)
                                                                     Pleas in law and main arguments adduced in support:
An action against the Commission of the European
Communities was brought before the Court of First                    The pleas in law and main arguments are similar to those
Instance of the European Communities on 15 July 1997                 relied on in Case T-16/97 (1).
by Guy Tachelet, residing in Luxembourg, represented by
Nicolas LhoeÈst, of the Brussels Bar, with an address for            (1) OJ C 74, 8. 3. 1997, p. 27.
service in Luxembourg at Fiduciaire Myson SARL, 30, rue
de Cessange.


title: Case C-389/17: Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 29 June 2017 — UAB ‘EVP International’ v Lietuvos bankas

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/28

         Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 29 June 2017 — UAB ‘EVP International’ v Lietuvos bankas
   (Case C-389/17)
   (2017/C 309/36)
   Language of the case: Lithuanian

      Referring court

   Lietuvos vyriausiasis administracinis teismas

      Parties to the main proceedings

      Appellant: UAB ‘EVP International’

      Other party: Lietuvos bankas

      Questions referred

   Is Article 5(2), read in conjunction with Article 6(1)(a), of Directive 2009/110/EC (1) of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions, amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC to be interpreted as meaning that, in circumstances such as those in the present case, the following are to be regarded as payment services that are (not) linked to the issuance of electronic money:

               (a)

               a payment transaction whereby, at the request (instruction) of the electronic money holder to the electronic money institution (the issuer), the electronic money (redeemable funds) redeemed at par value is transferred to a third-party bank account;

               (b)

               a payment transaction whereby, on the instruction of the seller, the buyer (payer) of goods and/or services pays for the goods and/or services by making a transfer/payment of funds to an electronic money institution (issuer of electronic money), which, upon receipt of the funds, issues electronic money, at par value of the funds received, for the benefit of the seller (electronic money holder)?

      (1)  Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions, Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (OJ 2009 L 267, p. 7).


title: Case C-518/06: Action brought on 20 December 2006 — Commission of the European Communities v Italian Republic

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/15

         Action brought on 20 December 2006 — Commission of the European Communities v Italian Republic
   (Case C-518/06)
   (2007/C 42/25)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa and N. Yerrell, acting as Agents)

      Defendant: Italian Republic
   Forms of order sought
   The applicant claims that the Court should:

               (1)

               declare that the Italian Republic,

                           —

                           by introducing and maintaining legislation pursuant to which premiums for third party motor vehicle liability insurance must be calculated on the basis of fixed parameters;

                           —

                           by making the premiums for third party motor vehicle liability insurance subject to controls ex post facto,

                     has failed to fulfil the obligations relating to the free marketing of insurance products incumbent upon it under the provisions on pricing freedom laid down in Articles 6, 29 and 39 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (1) (‘Directive 92/49’);

                           —

                           by controlling the detailed rules in accordance with which insurance undertakings which have their head office in another Member State, but operate in Italy in exercise of the freedom of establishment or the freedom to provide services, calculate their insurance premiums;

                           —

                           by imposing penalties for infringement of the Italian rules concerning the detailed rules for calculating insurance premiums, even in the case of insurance undertakings which have their head office in another Member State but which operate in Italy in exercise of the freedom of establishment or the freedom to provide services,

                     has failed to fulfil its obligations under Article 9 of Directive 92/49;

                           —

                           by maintaining an obligation to provide coverage for third party motor vehicle liability, incumbent upon all insurance undertakings, including those which have their head office in another Member State but which operate in Italy in exercise of the freedom of establishment or the freedom to provide services,

                     has failed to fulfil its obligations under Articles 43 and 49 of the Treaty establishing the European Community.

               (2)

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The obligation for insurance companies to establish net premiums in accordance with ‘proper technical bases, which are sufficiently wide and which extend over at least five business years’ and to ensure that those premiums comply with a particular market average, together with the subjection of those premiums to controls ex post facto — with the consequence that substantial fines may be imposed by the Italian supervisory authority in the case of infringement of those obligations — constitutes a breach of the principle of pricing freedom provided for in Directive 92/49. The effect of the Italian legislation is to set up a system of regulated premiums and thus to prevent insurance undertakings from marketing their services as they see fit and freely establishing their pricing policies, and thereby jeopardising the establishment of the single market in insurance.
   The general interest underlying the adoption of the national provisions cannot be used by the Italian State to legitimise a derogation from the principle of pricing freedom for undertakings as established by Community legislation in so far as it does not fall within the exceptions expressly provided for in the second paragraph of Article 29, and in Article 39(3), of Directive 92/49.
   The control effectively exercised by the Italian supervisory authority, that is to say, the supervisory authority of the host Member State, over the detailed rules in accordance with which insurance undertakings operating in Italy in exercise of freedom of establishment or the freedom to provide services calculate their insurance premiums, together with the imposition of penalties by the Italian supervisory authority for infringement of the Italian legislation, constitutes a failure to comply with the allocation of tasks and responsibilities — between the home Member State (the Member State in which the insurance company is principally established) and the host Member State — as provided for in Article 9 of Directive 92/49.
   The obligation to provide coverage, imposed on all insurance undertakings engaged in motor vehicle liability, independently of the location of the head office, and in relation to all categories of insured persons and all regions of Italy — coupled with the possibility that penalties may be applied by the Italian supervisory authority for infringement of that obligation — entails a restriction on the fundamental freedom of establishment, prohibited as such by Article 43 EC, and also constitutes a restriction of the freedom to provide services, incompatible with Article 49 EC. Indeed, the obligation under the Italian legislation to provide the compulsory motor vehicle liability insurance constitutes a serious obstacle to engaging in the activities of an insurance undertaking in Italy, in that such an obligation discourages insurance undertakings established in other Member States from establishing themselves in Italy or from providing services there, and thus impairs access to the Italian market.
   The obligation to provide coverage constitutes an obstacle which is neither justified nor proportionate in relation to the aim pursued. Indeed, ‘the concept of public policy may be relied upon in the event of a genuine and sufficiently serious threat to … one of the fundamental interests of society’ and ‘the public policy exception, like all derogations from a fundamental principle of the Treaty, must be interpreted restrictively’ (see Case C-348/96 Criminal proceedings against Donatella Calfa [1999] ECR I-11, paragraphs 21 and 23).
   Furthermore, that restriction appears to be an inappropriate means of attaining the objective for which it was adopted, in that such a generalised obligation to provide coverage hampers the development and operability of specialised services within insurance undertakings, which would be better able to satisfy the needs of consumers properly and efficiently simply because of being so specialised.
   Lastly, such a restriction goes beyond what is necessary in order to achieve the objective of maintaining public order or of protecting consumers, both in geographical terms — in that the problems relating to public order concern, according to the Italian authorities themselves, only ‘specific geographical areas’ of the national territory — and in terms of content — in that insurance undertakings operating in Italy are required to offer coverage to any owner or driver of motor vehicles, regardless of the risk posed in practice by that owner or driver as regards liability for damage caused to third parties.

      (1)  OJ 1992 L 228, p. 1.


title: Case T-322/07: Action brought on 27 August 2007 — Kenitex Química v OHIM

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/51

         Action brought on 27 August 2007 — Kenitex Química v OHIM
   (Case T-322/07)
   (2007/C 269/92)
   Language in which the application was lodged: Portuguese
   Parties

      Applicant: Kenitex Química, S.A. (Manique, Estoril (Portugal)) (represented by: M. Pardete Reis, lawyer)

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

      Other party to the proceedings before the Board of Appeal of the Office: Chemicals International Establishment
   Form of order sought

               —

               annulment of the decision of the Fourth Board of Appeal of the Office of 19 June 2007, notified by fax to the applicant on 25 June 2007 in the proceedings for invalidity No 879 C 001553742/1 (Community Trade Mark Register No 1553742), to which corresponds case No R 330/2006-4 and, in consequence, declare valid Community trade mark No 1553742 ‘KENITEX TINTAS A QUALIDADE DA COR’, applied for on 13 March 2000 and registered on 22 May 2001;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   On 22 May 2001 the figurative Community trade mark ‘KENITEX TINTAS A QUALIDADE DA COR’ was registered for goods in Classes 1, 2 and 19 of the Nice Classification (chemicals used in industry, artificial resins, paints, varnishes, lacquers, mordants, natural resins, metals for painters; building materials (non-metallic), asphalt paving, cladding, road safety devices, glass (building)).
   Chemicals International Establishment sought cancellation of the Community mark on the basis that there existed in previous registers graphic national marks ‘Kenitex’ for goods in Classes 2 (decorating paints) in Portugal, ‘Kenitex’ for goods in Classes 2 and 19 (cladding of various colours for buildings) in France and ‘Kenitex’ for goods in Classes 1, 2, 17 and 19 (non-inflammable and waterproof goods, paints and cladding) in the Benelux countries.
   The Cancellation Division upheld the application for a declaration of invalidity and the Board of Appeal dismissed the appeal brought by the applicant against that decision, considering that there was some likelihood of confusion, given the similarity of the goods and signs.
   The applicant alleges contravention of Article 8(1)(b) of Council Regulation No 40/94 (1), taking the view that there is no likelihood of confusion between the two signs and the applicant's sign corresponds to its business name (that of the company) and name of the establishment registered in Portugal with the National Institute of Industrial Property.

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


title: Judgment of the Court of First Instance of 29 September 1999 in Case T-68/97: Martin Neumann and Irmgard Neumann-Schölles v Commission of the European Communities (Officials - Orphan's pension)

text:
20.11.1999             EN                      Official Journal of the European Communities                                      C 333/23
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               service in Luxembourg at the Chambers of Ernest Arendt,
                                                                          8-10 Rue Mathias Hardt, v Commission of the European
                      of 28 September 1999                                Communities (Agents: Julian Currall, Christine Berardis-Kayser
                                                                          and Bertrand Wägenbaur) — application for an order requiring
in Case T-48/97: Erik Dan Frederiksen v European Parlia-                  the Commission to pay to Mr Neumann an orphan’s pension
                             ment (1)                                     — the Court of First Instance (Second Chamber), composed
                                                                          of: A. Potocki, President, and C.W. Bellamy and M. Vilaras,
(Officials — Promotion — Judgments ordering annulment                     Judges; A. Mair, Administrator, for the Registrar, has given a
— Enforcement measures — Article 176 of the EC Treaty                     judgment on 29 September 1999, in which it:
(now Article 233 EC) — Misuse of powers — Material and
            non-material damage — Compensation)                           1. Annuls the decisions of 20 March 1996 and 29 November
                                                                               1996 by which the Commission refused to grant an orphan’s
                         (1999/C 333/55)                                       pension to Mr Martin Neumann;
                    (Language of the case: French)                        2. Orders the Commission to pay the costs.
In Case T-48/97: Erik Dan Frederiksen, a former official of
the European Parliament, residing at Howald (Luxembourg),                 (1) OJ C 166 of 31.5.1997.
represented by Georges Vandersanden, of the Brussels Bar,
with an address for service in Luxembourg at the offices of
Fiduciaire Myson SARL, 30 Rue de Cessange, v European
Parliament (Agents: Manfred Peter, Joao Sant’Anna and Denis
Waelbroeck) — application for compensation for the material
and non-material damage which the applicant claims to have
suffered as a result of the attitude adopted by the European
Parliament in the course of filling the post of linguistic adviser
(grade LA 3) in the Danish Translation Division following the                 JUDGMENT OF THE COURT OF FIRST INSTANCE
publication of Vacancy Notice No 5809 — the Court of First
Instance (Fifth Chamber), composed of: J.D. Cooke, President,
                                                                                of 28 September 1999
and R. Garcı́a-Valdecasas and P. Lindh, Judges; H. Jung, Regis-
trar, has given a judgment on 28 September 1999, in which it:
                                                                          in Case T-140/97: Michel Hautem v European Investment
1. Orders the Parliament to pay to the applicant damages in the                                        Bank (1)
     sum of BEF 3 000 000 by way of compensation for the
     non-material damage suffered by him;
                                                                          (Officials — Removal from post — Articles 1, 4, 5 and 40
2. Dismisses the remainder of the action;                                 of the Staff Regulations of the European Investment Bank
                                                                          — Manifest error of assessment of the facts — Counterclaim
3. Orders the Parliament to pay the costs.                                    — Rejection of an application for measures of inquiry)
(1) OJ C 142 of 10.5.1997.
                                                                                (1999/C 333/57)
                                                                                (Language of the case: French)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                          In Case T-140/97: Michel Hautem, a servant of the European
                                                                          Investment Bank, residing at Schouweiler (Luxembourg), rep-
                      of 29 September 1999
                                                                          resented initially by Pascale Delvaux de Fenffe and Pierre-Paul
                                                                          Van Gehuchten, of the Brussels Bar, and subsequently by
in Case T-68/97: Martin Neumann and Irmgard Neumann-
                                                                          Michel Karp, of the Luxembourg Bar, with an address for
 Schölles v Commission of the European Communities (1)
                                                                          service in Luxembourg at his Chambers, 84 Grand-Rue, v
                                                                          European Investment Bank (Agents: Giannangelo Marchegiani
                (Officials — Orphan’s pension)
                                                                          and Georges Vandersanden) — application, first, for annul-
                                                                          ment of the decision of the European Investment Bank of
                         (1999/C 333/56)
                                                                          31 January 1997, by which the applicant was removed
                                                                          from his post without loss of his severance grant, and for
                   (Language of the case: German)                         reinstatement of the applicant, and, second, for an order
                                                                          requiring the Bank to compensate the applicant — the Court
In Case T-68197: Martin Neumann and Irmgard Neumann-                      of First Instance (Fifth Chamber), composed of: J.D. Cooke,
Schölles, an official of the Commission of the European                   President, and R. Garcı́a-Valdecasas and P. Lindh, Judges;
Communities, residing in Karlsruhe (Germany), represented by              J. Palacio González, Administrator, for the Registrar, has given
Hans-Josef Rüber, Rechtsanwalt, Cologne, with an address for              a judgment on 28 September 1999, in which it:


title: Case C-178/13: Order of the President of the Court of 22 November 2013 — European Commission v Republic of Finland

text:
               7.4.2014

               EN

               Official Journal of the European Union

               C 102/29

         Order of the President of the Court of 22 November 2013 — European Commission v Republic of Finland
   (Case C-178/13) (1)

   2014/C 102/44
   Language of the case: Finnish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 156, 1.6.2013.


title: Case C-191/07 P: Appeal brought on 3 April 2007 by Jean Yves Sellier against the judgment of the Court of First Instance (Fourth Chamber) delivered on 15 January 2007 in Case T-276/06 Sellier v Commission

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/15

         Appeal brought on 3 April 2007 by Jean Yves Sellier against the judgment of the Court of First Instance (Fourth Chamber) delivered on 15 January 2007 in Case T-276/06 Sellier v Commission

   (Case C-191/07 P)
   (2008/C 64/23)
   Language of the case: French
   Parties

      Appellant: Jean Yves Sellier (represented by: J.Y. Leeman, avocat)

      Other party to the proceedings: Commission of the European Communities
   By order of 18 September 2007, the Court of Justice (Sixth Chamber) dismissed the appeal and ordered Mr Sellier to bear his own costs.


title: Case C-346/09: Reference for a preliminary ruling from the Gerechtshof’s-Gravenhage (Netherlands) lodged on 28 August 2009 — State of the Netherlands v Denkavit Nederland b.v. and Others

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/25

         Reference for a preliminary ruling from the Gerechtshof’s-Gravenhage (Netherlands) lodged on 28 August 2009 — State of the Netherlands v Denkavit Nederland b.v. and Others
   (Case C-346/09)
   2009/C 282/44
   Language of the case: Dutch

      Referring court

   Gerechtshof’s-Gravenhage

      Parties to the main proceedings

               Applicant

               :

               State of the Netherlands

               Defendants

               :

                           Denkavit Nederland b.v.,

                           Arie Blok b.v.,

                           Cehave b.v.,

                           Demeter b.v.

      Question referred

   Must Community law, and specifically Directive 90/425/EEC, (1) Decision 94/381/EC (2) and Decision 2000/766/EC, (3) be interpreted as meaning that any national prohibition, such as that laid down in Article 2 of the Tijdelijke regeling, which, with a view to affording protection against BSE, prohibits the production of and trading in processed animal proteins intended for feeding to farmed animals, is incompatible with those provisions if such a national prohibition

               —

               entered into force on 15 December 2000 (and so before Decision 2000/766/EC) and

               —

               also applied temporarily (until Decision 2001/9/EC (4) of 29 December 2000 entered into force) to fishmeal and dicalcium phosphate?

      (1)  Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra- Community trade in certain live animals and products with a view to the completion of the internal market (OJ L 224, p. 29).

      (2)  Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived protein (OJ L 172, p. 23).

      (3)  Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ L 306, p. 32).

      (4)  Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Council Decision 2000/766/EC concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2001 L 2, p. 32).


title: Action brought on 29 October 1996 by the Commission of the European Communities against Ireland (Case C-353/96)

text:
21 . 12 . 96                EN                    Official Journal of the European Communities                                    No C 388/5
2 . order the Federal Republic of Germany to pay the                         Action brought on 25 October 1996 by the Italian
      costs .                                                                      Republic against the Council of the European Union
                                                                                ( Case C-352/96 )
Pleas in law and main arguments adduced in support:                                                       ( 96/C 388/ 10 )
The mandatory character of the first paragraph of Article 5                  An action against the Council of the European Union was
and the third paragraph of Article 189 of the EC Treaty                      brought before the Court of Justice of the European
requires Member States to implement directives addressed                     Communities on 25 October 1996 by the Italian Republic,
to them in such a way that they take full effect by the                      represented by its Agent, Professor Umberto Leanza,
expiry of the prescribed period. That period expired on                      assisted by Danilo Del Gaizo, Avvocato dello Stato, with
5 May 1994 in relation to Directive 94/3/EC, and on                          an address for service in Luxembourg at the Italian
30 June 1994 in relation to the other Directives referred to                 Embassy, 5 Rue Marie-Adelaide .
above, without the Federal Republic of Germany having
taken the necessary measures.
                                                                             The applicant claims that the Court should declare null
                                                                             and void Council Regulation ( EC ) No 1522/96 of 24 July
f1)   OJ No   L 250, 7. 10. 1993 , p . 29 .                                  1996 (*) and, in particular, Articles 3 , 4 and 9 thereof.
(2)   OJ No   L 250, 7. 10 . 1993 , p . 31 .
(3)   OJ No   L 250, 7. 10 . 1993 , p . 33 .
(4 )  OJ No   L 256, 14 . 10 . 1993 , p . 19 .                               Pleas in law and main arguments adduced in support:
(5)   OJ No   L 256 , 14 . 10 . 1993 , p . 25 .
(6)   OJ No   L 32, 5 . 2 . 1994, p. 37.
                                                                             The Italian Republic maintains that, by adopting
                                                                             Regulation ( EC ) No 1522/96 and, in particular, Articles 3 ,
                                                                             4 and 9 thereof, the Council of the European Union has
                                                                             infringed GATT Article XXIV ( 6 ), Article 43 of the EC
                                                                             Treaty and the fundamental principle of proportionality. It
Reference for a preliminary ruling from the                                  also argues that the Commission infringed essential
Verwaltungsgerichtshof by order of that Court of                             procedural requirements: specifically, it failed to provide a
8 October 1996 in the case of Clean Car Autoservice                          proper statement of reasons and misused its powers.
           Ges.m.b.H. v. Landeshauptmann von Wien
                             ( Case C-3 50/96 )                              f 1 ) OJ No L 190, 31 . 7. 1996. p . 1 .
                               ( 96/C 388/09
Reference has been made to the Court of Justice
of the European Communities by - an order of                                 Action brought on 29 October 1996 by the Commission
the Verwaltungsgerichtshof (Administrative Court) of                                   of the European Communities against Ireland
8 October 1996 , which was received at the Court Registry                                               ( Case C-353/96 )
on 24 October 1996 , for a preliminary ruling in the case
of Clean Car Autoservice Ges.m.b.H. v. Landeshauptmann                                                      96/C 388/ 11 )
von Wien on the following questions:
                                                                             An action against Ireland was brought before the Court of
1 . Are Article 48 of the EC Treaty and Articles 1 to 3 of                   Justice of the European Communities on 29 October 1996
      Regulation ( EEC ) No 1612/68 (*) to be interpreted as                 by the Commission of the European Communities,
      meaning that employers in the host State also derive                   represented by Mr Richard Wainwright, Principal Legal
      therefrom the right to employ workers who are                          Adviser, acting as Agent, with an address for service in
      nationals of another Member State without being                        Luxembourg at the office of Mr Carlos Gomez de la Cruz,
       bound by conditions which — even if they do not                       member of its Legal Service, Centre Wagner, Kirchberg,
      depend on nationality — are typically linked with                      Luxembourg.
      nationality ?
                                                                             The applicant claims that the Court should:
2 . If employers of the host State have the right stated in
       Question 1 : Are Article 48 of the EC Treaty and                      — declare that, in failing to comply with the provisions
      Articles 1 to 3 of Regulation ( EEC ) No 1612/68 to be                       of Council Directive 77/62/EEC of 21 December 1976
      interpreted as meaning that a provision such as                              coordinating procedures for the award of public
      paragraph 39 ( 2 ) of the Gewerbeordnung 1994, under                         supply contracts ( J ), as amended by Directive 88/295/
      which the owner of a trade may appoint as manager                            EEC (2 ), and, in particular, in failing to publish its call
      for trade law purposes only a person whose residence                         for tender for the supply of fertilizers on behalf of the
      is in the host State (Austria ), is consistent therewith ?                   Irish Forestry Board ( Coillte Teoranta ) in the Official
                                                                                Journal of the European Communities, Ireland has
                                                                                failed to fulfil its obligations under the Treaty,
f 1 ) OJ, English Special Edition 1968 ( II ), p. 475 .
                                                                             — order Ireland to pay the costs .
 ---pagebreak--- No C 388/6                L_EN                 Official Journal of the European Communities                                         21 . 12 . 96
Pleas in law and main arguments adduced in support:                       Action brought on 29 October 1996 by the Commission
                                                                          of the European Communities against the Italian Republic
There are two main issues of contention, of which one is                                             Case C-354/96 )
procedural and the other substantive . The procedural issue                                            96/C 388 / 12
concerns the relationship between the procedures laid
down in Article 169 of the EC Treaty and those provided
for in Directive 89/665/EEC ( 3 ) ( the 'Remedies Directive').
                                                                          An action against the Italian Republic was brought before
The substantive issue concerns the question of the                        the Court of Justice of the European Communities on
interpretation of the expression 'contracting authority'                  29 October 1996 by the Commission of the European
contained in Article 9 of Directive 77/62/EEC as amended
                                                                          Communities, represented by Dimitrios Gouloussis, Legal
at the relevant time ( the ' Supplies Directive').                        Adviser, and Laura Pignataro, of its Legal Service, acting
                                                                          as Agents, with an address for service in Luxembourg at
— The Remedies Directive and Article 169 of the EC                        the office of Carlos Gomez de la Cruz, Wagner Centre,
       Treaty                                                             Kirchberg.
       The Commission accepts that since, unbeknown to it,                The applicant claims that the Court should:
       the contract had already been awarded on 30 May
       prior to the Commission 's communication under
       Article 3 of the Remedies Directive, proceedings under             1 . declare that, by failing to adopt and/or, in any event,
       that Article could not be pursued. The question,                        notify the laws, regulations or administrative
       therefore * of the effect of the national judicial                      provisions necessary to comply with Council Directive
        proceedings is no longer relevant. However, the                        91 /674/EEC f 1 ) of 19 December 1991 on the annual
        Commission does not accept that it is thereby                          accounts    and    consolidated        accounts   of insurance
        prevented from continuing proceedings under                            undertakings, the Italian Republic has failed to fulfil
        Article 169 of the EC Treaty or that such proceedings                  its obligations under that Directive and the EC Treaty;
        would be in any way ' inappropriate'.
                                                                          2 . order the Italian Republic to pay the costs.
— Contracting authority
                                                                          Pleas in law and main arguments adduced in support:
        Paragraphs 2 and 4 to 9 of Article 9 of Directive 77/
        62/EEC as amended ( the relevant Directive at the time
        of the award of the contract ) provides that                      Under Article 189 of the EC Treaty, according to which a
        'contracting authorities' who wish to award a public              directive is to be binding, as to the result to be achieved,
        supply contract shall make known their intention by               upon each Member State to which it is addressed,
        means of a notice to be published in the Official                 Member States are required to observe the time limits laid
       Journal of the European Communities.                               down in directives for their transposition. That time limit
                                                                          expired on 1 January 1994 without the Italian Republic
                                                                          having brought into force the necessary provisions in
        From the correspondence between the Commission                    order to comply with the Directive referred to in the
        and Ireland it appears that the Irish Government                  Commission's application.
        accepts that the contract in question is a public supply
        contract for the purposes of the Directive, but that it
        disputes that Coillte Teoranta is a contracting                    (') OJ No L 374 , 31 . 12 . 1991 , p . 7 .
        authority within the meaning of the Directive .
        Having examined the Forestry Act 1988 as well as the
        memorandum and articles of association of Coillte
        Teoranta , which set out its objects and internal rules,          Reference for a preliminary ruling from the Oberster
        the Commission considers that there are a number of                Gerichtshof, Austria, by order of that Court of 15 October
        provisions which confirm that Coillte Teoranta is a                1996 in the case of Silhouette International Schmied
        'contracting authority' for the purposes of the                    Gesellschaft     mbH          &       Co     KG     v.   Hartlauer
        Directive .                                                                           Handelsgesellschaft mbH
                                                                                ( Case C-355/96 )
 ( i ) OJ No L 13 , 15 . 1 . 1977, p. 1 .
 ( 2 ) Council Directive 88/295/EEC of 22 March 1988 amending                                         ( 96/C 388/ 13 )
       Directive 77/62/EEC relating to the coordination of
       procedures on the award of public supply contracts and
       repealing certain provisions of Directive 80/767/EEC ( OJ No        Reference has been made to the Court of Justice of the
       L 127, 20 . 5 . 1988 , p. 1 ).                                      European Communities by an order of the Oberster
 ( 3 ) Council Directive 89/665/EEC of 21 December 1989 on the             Gerichtshof ( Supreme Court ), Austria, of 15 October
       coordination of the laws, regulations and administrative
       provisions relating to the application of review procedures to
                                                                           1996, which was received at the Court Registry on
       the award of public supply and public work contracts ( OJ No        30 October 1996, for a preliminary ruling in the case of
                                                                           Silhouette International Schmied Gesellschaft mbH & Co
       L 395 , 30 . 12 . 1989 , p. 33 ).
                                                                           KG v. Hartlauer Handelsgesellschaft mbH on                         the
                                                                           following questions :


title: Case T-516/17: Action brought on 4 August 2017 — Imasa, Ingeniería y Proyectos v Commission and SRB

text:
               23.10.2017

               EN

               Official Journal of the European Union

               C 357/20

         Action brought on 4 August 2017 — Imasa, Ingeniería y Proyectos v Commission and SRB
   (Case T-516/17)
   (2017/C 357/26)
   Language of the case: Spanish

      Parties

      Applicant: Imasa, Ingeniería y Proyectos (Oviedo, Spain) (represented by: B. Gutiérrez de la Roza Pérez, P. Rubio Escobar, R. Ruiz de la Torre Esporrín and B. Fernández García, lawyers)

      Defendants: European Commission and Single Resolution Board

      Form of order sought

   The applicant claims that the Court should annul the following measures:

               —

               Decision (SRB/EES/2017/08) of the Single Resolution Board agreed at its executive session of 7 June 2017 adopting the resolution scheme regarding the institution Banco Popular Español, S.A.

               —

               Commission Decision (EU) 2017/1246 of 7 June 2017 endorsing the resolution scheme for Banco Popular Español, S.A.

      Pleas in law and main arguments

   The pleas in law and main arguments are similar to those put forward in Cases T-478/17, Mutualidad de la Abogacía and Hermandad Nacional de Arquitectos Superiores y Químicos v Single Resolution Board, T-481/17, Fundación Tatiana Pérez de Guzmán el Bueno and SFL v Single Resolution Board, T-482/17, Comercial Vascongada Recalde v Commission and Single Resolution Board, T-483/17, García Suárez and Others v Commission and Single Resolution Board, T-484/17, Fidesban and Others v Single Resolution Board, T-497/17, Sáchez del Valle and Calatrava Real State 2015 v Commission and Single Resolution Board, and T-498/17, Pablo Álvarez de Linera Granda v Commission and Single Resolution Board.


title: ORDER OF THE COURT (Fifth Chamber) of 28 April 1998 in Case C-116/96 REV: Reisebüro Binder GmbH (Revision of a judgment - Preliminary ruling - Application manifestly inadmissible)

text:
5.9.98                EN                  Official Journal of the European Communities                                      C 278/7
completion of professional education and training of at              1. declares that, by failing to adopt within the prescribed
least three years' duration.                                              period all the laws, regulations and administrative
                                                                          provisions necessary to comply with
(1) OJ C 229, 2.9.1995.
                                                                          Ð Council Directive 90/220/EEC of 23 April 1990
                                                                              on the deliberate release into the environment of
                                                                              genetically modified organisms, and
                                                                          Ð Commission Directive 94/51/EC of 7 November
                                                                              1994 adapting to technical progress Council
                                                                              Directive 90/219/EEC on the contained use of
               JUDGMENT OF THE COURT                                          genetically modified micro-organisms,
                       (Sixth Chamber)
                        of 9 July 1998                                    the Kingdom of Belgium has failed to fulfil its
                                                                          obligations under Article 23 of Directive 90/220/EEC
in    Case   C-343/97: Commission of the European                         and Article 2 of Directive 94/51/EC;
           Communities v. Kingdom of Belgium (1)
(Failure to fulfil obligations Ð Failure to transpose
           Directives 90/220/EEC and 94/51/EC)                       2. orders the Kingdom of Belgium to pay the costs.
                        (98/C 278/11)
                                                                     (1) OJ C 357, 22.11.1997.
                (Language of the case: French)
                                                                                ORDER OF THE COURT
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                                          (Fifth Chamber)
                                                                                of 28 April 1998
                                                                         in Case C-116/96 REV: Reisebüro Binder GmbH (1)
In Case C-343/97: Commission of the European
Communities (Agent: Götz zur Hausen) v. Kingdom of                   (Revision of a judgment Ð Preliminary ruling Ð
Belgium (Agent: Anni Snoecx) Ð Application for a                                  Application manifestly inadmissible)
declaration that, by failing to adopt within the prescribed
                                                                                (98/C 278/12)
period all the laws, regulations and administrative
provisions necessary to comply with:
                                                                                (Language of the case: German)
Ð Council Directive 90/220/EEC of 23 April 1990 on the
     deliberate release into the environment of genetically
                                                                       (Provisional translation; the definitive translation will be
     modified organisms (OJ L 117, 18.5.1990, p. 15), and
                                                                               published in the European Court Reports)
Ð Commission Directive 94/51/EC of 7 November 1994                   In Case C-116/96 REV: Reisebüro Binder GmbH Ð
     adapting to technical progress Council Directive 90/            application for revision of the judgment of the Court of
     219/EEC on the contained use of genetically modified            6 November 1997 in Case C-116/96 Reisebüro Binder v.
     micro-organisms (OJ L 297, 18.11.1994, p. 29),                  Finanzamt Stuttgart-Körperschaften [1997] ECR I-6103 Ð
                                                                     the Court (Fifth Chamber), composed of C. Gulmann,
                                                                     President of the Chamber, J. C. Moitinho de Almeida,
                                                                     D. A. O. Edward, J.-P. Puissochet (Rapporteur) and P.
the Kingdom of Belgium has failed to fulfil its obligations          Jann, Judges; A. La Pergola, Advocate General; R. Grass,
under those Directives Ð the Court (Sixth Chamber)                   Registrar, made an order on 28 April 1998, the operative
composed of: H. Ragnemalm (Rapporteur) President of                  part of which is as follows:
the Chamber, R. Schintgen, P. J. G. Kapteyn, J. L. Murray
and K. M. Ioannou, Judges; Advocate-General: A. La
Pergola, Registrar: R. Grass, has given a judgment on                1. The application        for   revision    is  dismissed    as
9 July 1998, in which it:                                                 inadmissible.
 ---pagebreak--- C 278/8              EN                  Official Journal of the European Communities                                      5.9.98
2. Reisebüro Binder GmbH shall bear its own costs.                                   ORDER OF THE COURT
                                                                                of 25 May 1998
( ) OJ C 387, 20.12.1997.
 1
                                                                    in Case C-80/97: SocieÂteÂ des Caves et des Producteurs
                                                                    ReÂunis des Roquefort and Others v. Commission of the
                                                                                European Communities (1)
                                                                    (Cases brought before the Court of Justice and the Court
                                                                    of First Instance having as their subject-matter the
                                                                    annulment of the same act Ð Disclaimer of jurisdiction by
                                                                                the Court of First Instance)
                 ORDER OF THE COURT                                                         (98/C 278/14)
                        (First Chamber)
                        of 7 May 1998
                                                                                (Language of the case: French)
in Case C-239/97: Ireland v. Commission of the European
                        Communities (1)
(Admissibility Ð Time limit for bringing proceedings Ð
                                                                     (Provisional translation; the definitive translation will be
       Unforeseeable circumstances Ð Force majeure)
                                                                             published in the European Court Reports)
                         (98/C 278/13)
                                                                    In Case C-80/97: SocieÂteÂ des Caves et des Producteurs
                                                                    ReÂunis de Roquefort, established in Roquefort-sur-Salzon
               (Language of the case: English)                      (France), SocieÂteÂ FromageÁre Corse, established in Bastia
                                                                    (France), SocieÂteÂ pour la Valorisation du Lait de Brebis
                                                                    du Grand Sud-Ouest (Valbreso), established in La
                                                                    Canourgue (France), La Compagnie des Fromages SAS,
In Case C-239/97: Ireland, represented by Michael A.                established in Vire (France), Fromager du Causse SARL,
Buckley, Chief State Solicitor, acting as Agent, and by Paul        established in Roquefort (France), Alliance Agro-
Gallagher, SC, and Niamh Hyland, barrister-at-law, v.               Alimentaire SCC (3A), established in Toulouse (France),
Commission of the European Communities, represented                 ConfeÂdeÂration GeÂneÂrale des Producteurs de Lait de Brebis
by Peter Oliver Ð application for the annulment of                  et des Industriels de Roquefort, established in Millau
Commission Decision C(97) 693 of 16 April 1997                      Millau (France), represented by F. Ancel, of the Paris Bar,
concerning the reduction of assistance from the European            with an address for service in Luxembourg at the
Regional Development Fund (ERDF) to the operational                 Chambers of P. Schiltz, 4 Rue BeÂatrix de Bourbon, against
programme for Tourism in Ireland 1989Ð93 within the                 Commission of the European Communities (Agents: J. L.
Community support framework for structural assistance               Iglesias Buhigues and G. Berscheid), supported by
under Objective 1 in Ireland for the period 1989Ð93 and             Koinopraktiki Tyrokomikon Monado Ioanninon Pindos
amending Decision C(89) 2258/7 of 21 December 1989 as               AEBE, having its head office in Ioannina (Greece),
last amended by Decision C(93) 3769 of 17 December                  represented by N. Korojiannakis, of the Athens Bar, with
1993 Ð the Court (First Chamber), compsed of: M.                    an address for service in Luxembourg at Brown Holding
Wathelet, President of the Chamber, D. A. O. Edward and             SA, 310 Route d'Esch, L-1471 Luxembourg Ð application
L. Sevón, Judges; M. Mischo, Advocate-General; R. Grass,            for the annulment of Commission Regulation (EC)
Registrar, made an order on 7 May 1998, the operative               No 1107/96 of 12 June 1996 on the registration of
part of which is as follows:                                        geographical indications and designations of origin under
                                                                    the procedure laid down in Article 17 of Council
                                                                    Regulation (EEC) No 2081/92 (OJ L 148, 21.6.1996, p. 1)
                                                                    in so far as it registers the name feta' as a protected
                                                                    designation of origin Ð the Court, composed of G. C.
1. The application is dismissed as inadmissible.
                                                                    Rodríguez Iglesias, President, C. Gulmann, H.
                                                                    Ragnemalm, M. Wathelet and R. Schintgen (Rapporteur),
                                                                    Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
                                                                    Almeida, P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward,
2. Ireland shall pay the costs.                                     J.-P. Puissochet, G. Hirsch, P. Jann, L. Sevón and K. M.
                                                                    Ioannou, judges; A. La Pergola, Advocate-General; R.
                                                                    Grass, Registrar, made an order on 25 May 1998, the
(1) OJ C 271, 6.9.1997.                                             operative part of which is as follows:
                                                                    1. Case C-80/97 is referred to the Court of First Instance.