title: Judgment of the Court of 8 March 2001 in Case C-215/99 (reference for a preliminary ruling from the Landesgericht Feldkirch): Friedrich Jauch v Pensionsversicherungsanstalt der Arbeiter (Social security for migrant workers — Austrian scheme of insurance against the risk of reliance on care — Classification of benefits and lawfulness of the residence condition from the point of view of Regulation (EEC) No 1408/71)

text:
16.6.2001                EN                      Official Journal of the European Communities                                           C 173/15
                 JUDGMENT OF THE COURT                                            person withdraws, such an item from his business, the value
                                                                                added tax on that item must be considered not to be deductible
                                                                                for the purposes of Article 5(6) of the Sixth Directive and no
                           (Fifth Chamber)                                        tax may therefore be levied on that withdrawal under that
                                                                                provision. If the taxable person subsequently sells the item, he
                          of 8 March 2001                                         will be carrying out that transaction in a private capacity and
                                                                                the transaction will therefore be excluded from the system of
                                                                                value added tax.
in Case C-415/98 (reference for a preliminary ruling
from the Bundesfinanzhof): Laszlo Bakcsi v Finanzamt
                        Fürstenfeldbruck (1)                                (1) OJ C 20 of 23.1.1999.
(VAT — Articles 2(1), 5(6) and 11.A(1)(a) of the Sixth VAT
Directive — Mixed-use goods — Incorporation into the
private or business assets of a taxable person — Sale of a
business asset — Second-hand item purchased from a private
                              individual)
                           (2001/C 173/24)                                                   JUDGMENT OF THE COURT
                                                                                of 8 March 2001
                   (Language of the case: German)
                                                                            in Case C-215/99 (reference for a preliminary ruling
(Provisional translation; the definitive translation will be published      from the Landesgericht Feldkirch): Friedrich Jauch v
                    in the European Court Reports)                                  Pensionsversicherungsanstalt der Arbeiter (1)
In Case C-415/98: reference to the Court under Article 177 of               (Social security for migrant workers — Austrian scheme of
the EC Treaty (now Article 234 EC) from the Bundesfinanzhof                 insurance against the risk of reliance on care — Classifi-
(Federal Finance Court) (Germany) for a preliminary ruling in               cation of benefits and lawfulness of the residence condition
the proceedings pending before that court between Laszlo                       from the point of view of Regulation (EEC) No 1408/71)
Bakcsi and Finanzamt Fürstenfeldbruck on the interpretation
of Sixth Council Directive 77/388/EEC of 17 May 1977 on                                                (2001/C 173/25)
the harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added tax:
uniform basis of assessment (OJ 1977 L 145, p. 1) — the
Court (Fifth Chamber), composed of: D.A.O. Edward, acting as                                    (Language of the case: German)
President of the Fifth Chamber, P. Jann and L. Sevón (Rappor-
teur), Judges; A. Saggio, Advocate General; L. Hewlett, Admin-
istrator, for the Registrar, has given a judgment on 8 March                (Provisional translation; the definitive translation will be published
2001, in which it has ruled:                                                                    in the European Court Reports)
1.    A taxable person who acquires a capital item in order to use it       In Case C-215/99: reference to the Court under Article 177 of
      for both business and private purposes may retain it wholly           the EC Treaty (now Article 234 EC) from the Landesgericht
      within his private assets and thereby exclude it entirely from the    (Regional Court) Feldkirch, Austria for a preliminary ruling in
      system of value added tax.                                            the proceedings pending before that court between Friedrich
                                                                            Jauch and Pensionsversicherungsanstalt der Arbeiter — on
2.    Where a taxable person has chosen to incorporate wholly into          the interpretation of Articles 10a(1) and 19(1) of Council
      his business assets a capital item which he uses for both business    Regulation (EEC) No 1408/71 of 14 June 1971 on the
      and private purposes, the sale of that item is subject in full to     application of social security schemes to employed persons, to
      value added tax, in accordance with Articles 2(1) and                 self-employed persons and to members of their families
      11.A(1)(a) of Sixth Council Directive 77/388/EEC of 17 May            moving within the Community, as amended and updated by
      1977 on the harmonisation of the laws of the Member States            Council Regulation (EC) No 118/97 of 2 December 1996 (OJ
      relating to turnover taxes — Common system of value added             1997 L 28, p. 1) — the Court, composed of: G.C. Rodrı́guez
      tax: uniform basis of assessment. Where a taxable person              Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet,
      assigns to his business assets only the part of the item used for     V. Skouris (Presidents of Chambers), D.A.O. Edward,
      business purposes, only the sale of that part is subject to value     J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen,
      added tax. The fact that the item was purchased second-hand           F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
      from a non-taxable person and that the taxable person was             C.W.A. Timmermans, Judges; S. Alber, Advocate General; H.A.
      therefore not authorised to deduct the residual value added tax       Rühl, Principal Administrator, for the Registrar, has given a
      on that item is irrelevant in this regard. However, if the taxable    judgment on 8 March 2001, in which it has ruled:
 ---pagebreak--- C 173/16                 EN                     Official Journal of the European Communities                                          16.6.2001
Article 19(1) of Council Regulation (EEC) No 1408/71 of 14 June            1.    Declares that, by failing to take the necessary measures to
1971 on the application of social security schemes to employed                   ensure that the quality of surface water intended for the
persons, to self-employed persons and to members of their families               abstraction of drinking water conforms to the values laid down
moving within the Community, as amended and updated by Council                   pursuant to Article 3 of Council Directive 75/440/EEC of
Regulation (EC) No 118/97 of 2 December 1996, and the                            16 June 1975 concerning the quality required of surface water
corresponding provisions of the other sections of Chapter 1 of Title III         intended for the abstraction of drinking water in the Member
of that regulation preclude entitlement to Pflegegeld (care allowance)           States, the French Republic has failed to fulfil its obligations
under the Bundespflegegeldgesetz (Austrian Federal Law on care                   under Article 4 of that directive;
allowance) from being subject to the condition that the person reliant
on care must be habitually resident in Austria.                            2.    Orders the French Republic to pay the costs.
(1) OJ C 226 of 7.8.1999.
                                                                           (1) OJ C 281 of 2.10.1999.
                  JUDGMENT OF THE COURT
                                                                                JUDGMENT OF THE COURT
                           (Sixth Chamber)
                                                                                (Sixth Chamber)
                           of 8 March 2001
in Case C-266/99: Commission of the European Communi-                                               of 8 March 2001
                      ties v French Republic (1)
                                                                           in Case C-278/99 (reference for a preliminary ruling from
(Failure of Member State to fulfil its obligations — Quality               the Hoge Raad der Nederlanden): Criminal proceedings
of surface water intended for the abstraction of drinking                                  against Georgius van der Burg (1)
water — Directive 75/440/EEC — Conditions of drinking
                   water abstraction in Brittany)
                                                                           (Technical standards and regulations — Non-approved
                                                                                transmitting equipment — Advertising)
                           (2001/C 173/26)
                                                                                (2001/C 173/27)
                     (Language of the case: French)
                                                                                (Language of the case: Dutch)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                           (Provisional translation; the definitive translation will be published
In Case C-266/99: Commission of the European Communities                                      in the European Court Reports)
(Agent: M. Nolin) v French Republic (Agents: K. Rispal-
Bellanger and D. Colas) — application for a declaration that,
by failing to take the necessary measures to ensure that the               In Case C-278/99: reference to the Court under Article 234 of
quality of surface water intended for the abstraction of drinking          the EC Treaty from the Hoge Raad der Nederlanden (Nether-
water complied with the standards laid down under Article 3                lands) for a preliminary ruling in the criminal proceedings
of Council Directive 75/440/EEC of 16 June 1975 concerning                 pending before that court against Georgius van der Burg — on
the quality required of surface water intended for the abstrac-            the interpretation of Article 1 of Council Directive 83/189/EEC
tion of drinking water in the Member States (OJ 1975 L 194,                of 28 March 1983 laying down a procedure for the provision
p. 26), the French Republic failed to fulfil its obligations under         of information in the field of technical standards and regu-
that directive, and in particular Article 4 thereof — the Court            lations (OJ 1983 L 109, p. 8) — the Court (Sixth Chamber),
(Sixth Chamber), composed of: C. Gulmann, President of                     composed of: C. Gulmann (Rapporteur), President of the
the Chamber, V. Skouris, J.-P. Puissochet, R. Schintgen and                Chamber, V. Skouris, J.-P. Puissochet, R. Schintgen and N. Col-
F. Macken (Rapporteur), Judges; C. Stix-Hackl, Advocate Gen-               neric, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
eral; L. Hewlett, Administrator, for the Registrar, has given a            R. Grass, Registrar, has given a judgment on 8 March 2001, in
judgment on 8 March 2001, in which it:                                     which it has ruled:


title: Case C-494/10: Reference for a preliminary ruling from the Landgericht Essen (Germany) lodged on 15 October 2010 — Dr Biner Bähr, in his capacity as liquidator in respect of the assets of Hertie GmbH v HIDD Hamburg-Bramfeld B.V.1

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/13

         Reference for a preliminary ruling from the Landgericht Essen (Germany) lodged on 15 October 2010 — Dr Biner Bähr, in his capacity as liquidator in respect of the assets of Hertie GmbH v HIDD Hamburg-Bramfeld B.V.1
   (Case C-494/10)
   ()
   2011/C 30/20
   Language of the case: German

      Referring court

   Landgericht Essen

      Parties to the main proceedings

      Applicant: Dr Biner Bähr, in his capacity as liquidator in respect of the assets of Hertie GmbH

      Defendant: HIDD Hamburg-Bramfeld B.V.1

      Questions referred

               1.

               Does the Court adhere in principle to its case-law in Seagon v Deko (Case C-339/07 [2009] ECR I-00767) to the effect that the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction under Article 3(1) of Council Regulation No 1346/2000 of 29 May 2000 on insolvency proceedings (1) to decide an action to set a transaction aside by virtue of insolvency that is brought against a person whose registered office is in another Member State even where, in addition to a claim arising from the right to seek to have a transaction set aside by virtue of insolvency, the claims pursued are primarily claims arising from rules on the maintenance of capital laid down in national company law which, from an economic point of view, are directed at the same assets as, or assets additional to, those pursued by the claim arising from the right to seek to have a transaction set aside by virtue of insolvency and which are independent of the opening of insolvency proceedings?

               2.

               If question 1 is to be answered in the negative: Does an action to set a transaction aside by virtue of insolvency the subject-matter of which is concurrently and primarily a claim independent of insolvency proceedings which is pursued by the liquidator on the basis of company law and which, from an economic point of view, is directed at the same or additional assets, fall within the scope of the exception ratione materiae provided for in Article 1(2)(b) of Regulation No 44/2001, (2) or is international jurisdiction to decide such an action determined in accordance with Regulation No 44/2001, in derogation from the judgment of the Court in Seagon v Deko?

               3.

               Do ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001 arise even where the connection between the parties to the dispute is attributable merely to an indirect relationship consisting in a 100 % holding by the group’s parent company in each of the companies party to the dispute?

      (1)  Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings; OJ 2000 L 160, p. 1.

      (2)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; OJ 2001 L 12, p. 1.


title: Reference for a preliminary ruling from the Finanzgericht München (Finance Court, Munich) by order of that court of 22 January 1998 in the case of Peter Luksch v. Hauptzollamt Weiden (Principal customs office, Weiden) (Case C-31/98)

text:
28.3.98               EN                Official Journal of the European Communities                                    C 94/13
    receiving such allowance) contrary to Articles 48(2)           Directeur des Services Fiscaux de la Moselle (Case C-28/
    and 51 of the EC Treaty?                                       98) and Jean Hirtsmann v. Directeur des Services Fiscaux
                                                                   de la Moselle (Case C-29/98) on the following question:
                                                                   Whether, having regard (Case C-28/98) to the date of
                                                                   approval of the plaintiff's Chevrolet vehicle of 33 CV
                                                                   fiscal power rating, registration number 6707 ZK 57, and
Reference for a preliminary ruling by the Bundesvergabe-           (Case C-29/98) to the date of approval of the plaintiff's
amt by order of that body of 27 January 1998 in the case           Jeep vehicle of 23 CV fiscal power rating, registration
of Bietergemeinschaft: 1. Metalmeccanica Fracasso SpA,             number 1438 XX 57, and having regard to the tax
2. Leitschutz Handels- und Montage GmbH against Amt                diagrams and figures submitted by the plaintiff and the
               der Salzburger Landesregierung                      observations submitted by the authorities, the system of
                        (Case C-27/98)                             taxation applied corresponds to objective criteria free
                                                                   from any discriminatory effect and not falling within the
                         (98/C 94/25)                              scope of Article 95 of the Treaty.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Federal Procurement Office) of 27 January 1998, received
at the Court Registry on 2 February 1998, for a
preliminary ruling in the case of Bietergemeinschaft
                                                                   Reference for a preliminary ruling from the 35th Civil
(contractor grouping): 1. Metalmeccanica Fracasso SpA,
                                                                   Chamber of the Landgericht Berlin by order of that court
2. Leitschutz Handels- und Montage GmbH against Amt
                                                                   of 4 November 1997 in the case of VR-Leasing GmbH
der Salzburger Landesregierung (Government Office of
                                                                                against Margit Bertram
the Land Salzburg) on the following question:
                                                                                (Case C-30/98)
Is Article 18 of Directive 93/37/EEC ( ), according to
                                           1                                                (98/C 94/27)
which contracts are to be awarded on the basis of the
criteria laid down in Chapter 3 of Title IV, taking into
account Article 19, after the suitability of the contractors       Reference has been made to the Court of Justice of the
not excluded under Article 24 has been checked by                  European Communities by order of the 35th Civil
contracting authorities in accordance with the criteria of         Chamber of the Landgericht Berlin (Berlin Regional
economic and financial standing and of technical                   Court) of 4 November 1997, received at the Court
knowledge or ability referred to in Articles 26 to 29, to be       Registry on 5 February 1998, for a preliminary ruling in
interpreted as requiring contracting authorities to accept a       the case of VR-Leasing GmbH against Margit Bertram on
tender even if it is the only tender still remaining in the        the following question:
tendering procedure? Is Article 18 sufficiently specific and
precise for it to be relied on by individuals in proceedings
under national law and, as part of Community law, to be            Do Articles 1 and 2 of Council Directive 85/577/EEC of
used to oppose provisions of national law?                         20 December 1985 (1), on protection of the consumer in
                                                                   respect of contracts negotiated away from business
(1) OJ L 199, 9.8.1993, p. 54.                                     premises, cover a husband who, acting as a negotiator on
                                                                   behalf of a leasing company, causes his wife to sign a
                                                                   declaration of suretyship in their private residence?
                                                                   (1) OJ L 372, 31.12.1995, p. 31.
References for a preliminary ruling from the Tribunal de
Grande Instance de Thionville by judgments of that court
of 21 March 1997 in the cases of Marc Charreire v. Direc-
teur des Services Fiscaux de la Moselle and Jean
 Hirtsmann v. Directeur des Services Fiscaux de la Moselle
                                                                   Reference for a preliminary ruling from the Finanzgericht
                (Cases C-28/98 and C-29/98)                        München (Finance Court, Munich) by order of that court
                         (98/C 94/26)                              of 22 January 1998 in the case of Peter Luksch v. Haupt-
                                                                        zollamt Weiden (Principal customs office, Weiden)
                                                                                (Case C-31/98)
Reference has been made to the Court of Justice of the
European Communities by judgments of the Civil                                              (98/C 94/28)
Chamber of the Tribunal de Grande Instance de Thionville
(Regional Court, Thionville) of 21 March 1997, which
were received at the Court Registry on 3 February 1998,            Reference has been made to the Court of Justice of the
for preliminary rulings in the cases of Marc Charreire v.          European Communities by an order of the Finanzgericht
 ---pagebreak--- C 94/14                EN                 Official Journal of the European Communities                                     28.3.98
München (Finance Court, Munich) of 22 January 1998,                  1 July 1995 and Germany has not yet taken the necesssary
which was received at the Court Registry on 9 February               measures.
1998, for a preliminary ruling in the case of Peter Luksch
v. Hauptzollamt Weiden on the following questions:                   (1) OJ L 135, 31.5.1994, p. 5.
1. Is Article 1 of Commission Regulation (EC) No 1395/
    94 (1) of 17 June 1994 to be interpreted as meaning
    that a countervailing charge is to be levied on sour
    cherries which have deteriorated through the
    formation of mould and incipient fermentation to such
    an extent that the only economic use to which they               Action brought on 12 February 1998 by the Commission
    can be put is distillation?                                           of the European Communities against the Federal
                                                                                Republic of Germany
    If Question 1 is answered in the affirmative:                                           (Case C-33/98)
2. Is Annex I of Regulation (EC) No 2658/87 (2), in the                                       (98/C 94/30)
    version in Regulation (EEC) No 2551/93 (3) of
    10 August 1993, in particular Note 1 to Chapter 8 of
    the Combined Nomenclature, to be interpreted as                  An action against the Federal Republic of Germany was
    meaning that the goods described in Question 1 are to            brought before the Court of Justice of the European
    be classified under subheading 0809 20 20 or                     Communities on 12 February 1998 by the Commission of
    0809 20 60?                                                      the European Communities, represented by Maria Patakia
                                                                     and Dr Frank Paul, of its Legal Service, with an address
(1) OJ L 152, 18.6.1994, p. 31.                                      for service in Luxembourg at the office of Carlos Gómez
(2) OJ L 256, 7.9.1987, p. 1.                                        de la Cruz, of its Legal Service, Wagner Centre, Kirchberg.
(3) OJ L 241, 27.9.1993, p. 1.
                                                                     The applicant claims that the Court should:
                                                                     Ð declare that, by the statement of the Deutsche Bundes-
                                                                         bank (1) that (a) only leading banks' established in
Action brought on 11 February 1998 by the Commission                     Germany may act as leading bank for foreign German
     of the European Communities against the Federal                     mark issues in Germany and (b) foreign German mark
                      Republic of Germany                                issues by credit institutions not established in Germany
                         (Case C-32/98)                                  must have a maturity of at least two years, the Federal
                                                                         Republic of Germany has failed to fulfil its obligations
                          (98/C 94/29)
                                                                         under Council Directive 88/361/EEC (2) and, from
                                                                         1 January 1994, under Article 73b of the EC Treaty
An action against the Federal Republic of Germany was                    and under Article 59 of the EC Treaty and Council
brought before the Court of Justice of the European                      Directive 89/646/EEC (3),
Communities on 11 February 1998 by the Commission of
the European Communities, represented by Christina
Tufvesson and Dr Frank Paul, of its Legal Service, with an           Ð order the Federal Republic of Germany to pay the
address for service in Luxembourg at the office of Carlos                costs.
Gómez de la Cruz, of its Legal Service, Wagner Centre,
Kirchberg.
                                                                     Pleas in law and main arguments adduced in support:
The applicant claims that the Court should:
                                                                     In the Commission's view, it is not decisive whether the
Ð declare that, by failing to adopt within the prescribed            statement is legally binding, since participants in the
    period the measures necessary to comply with                     market must in view of the Bundesbank's authority be
    Directive 94/19/EC of the European Parliament and of             concerned to comply with statements even if formally they
    the Council of 30 May 1994 on deposit-guarantee                  are not legally binding. Specifically,
    schemes (1), the Federal Republic of Germany has
    failed to fulfil its obligations under the EC Treaty,
                                                                     Ð the second sentence of point 1(1) of the statement
                                                                         infringes the principle of freedom to provide services
Ð order the Federal Republic of Germany to pay the
                                                                         (Article 59 of the EC Treaty), Article 18(1) of Council
    costs.
                                                                         Directive 89/646/EEC in conjunction with point 8 of
                                                                         the Annex thereto, and the principle of the free
Pleas in law and main arguments adduced in support:                      movement of capital (Article 73b of the EC Treaty), in
                                                                         so far at its effect is to exclude foreign credit
The pleas in law and main arguments correspond to those                  institutions from lead management for foreign German
in Case C-18/98; the period for transposition expired on                 mark bonds unless they act through a German branch,


title: Case F-69/10: Action brought on 24 August 2010 — Marcuccio v Commission

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/75

      Action brought on 24 August 2010 — Marcuccio v Commission
      (Case F-69/10)
      ()
      (2010/C 288/142)
      Language of the case: Italian

         Parties

         Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

         Defendant: European Commission

         Subject-matter and description of the proceedings

      Annulment of the decision rejecting the applicant’s request for compensation for the damage suffered as a result of the fact that the defendant had sent a letter to a lawyer who was not yet the applicant's representative.

         Form of order sought

      The applicant claims that the Civil Service Tribunal (CST) should:

                  —

                  annul the decision, whatever its form, which brought about the rejection by the European Commission of the request of 30 October 2009 sent by the applicant to the appointing authority;

                  —

                  annul the note of 11 November 2009 (ADMIN.B.2/MB/1sD(09)29814);

                  —

                  in so far as is necessary, annul the Commission's rejection of the applicant's complaint to the appointing authority, dated 25 January 2010, against the decision rejecting the request of 30 October 2009; annul that decision; and uphold the request of 30 October 2009;

                  —

                  in so far as is necessary, annul Note HR.D.2/MB/1s Ares (2010) 251054, dated 10 May 2010, written in French and received by the applicant on 17 May 2010 enclosed with the attached translation of the note in Italian;

                  —

                  order the Commission to make reparation for the damage unjustly suffered by the applicant as a result of the fact that the note of 10 August 2009 (ADMIN.B.2/MB/ksD(09)20658) was sent by the Commission to Giuseppe Cipressa, avvocato, by paying to the applicant the sum of EUR 10 000, or such other sum — whether greater or smaller — as the CST may consider just and equitable;

                  —

                  order the Commission to pay to the applicant, with effect from the date following that on which the request of 30 October 2009 was received by the Commission until actual payment of the sum of EUR 10 000, interest on that sum at the rate of 10 % per annum, with annual capitalisation;

                  —

                  order the Commission to pay the costs.


title: Case C-362/11: Order of the Court (Tenth Chamber) of 21 March 2013 (request for a preliminary ruling from the Tribunal Judicial de Santa Maria da Feira (Portugal)) — Serafim Gomes Oliveira v Lusitânia — Companhia de Seguros, SA (Article 99 of the Rules of Procedure — Insurance against civil liability in respect of the use of motor vehicles — Directives 72/166/EEC, 84/5/EEC and 90/232/EEC — Right to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles — Victim’s contribution to loss or injury — Limitation of the right to compensation)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/40

         Order of the Court (Tenth Chamber) of 21 March 2013 (request for a preliminary ruling from the Tribunal Judicial de Santa Maria da Feira (Portugal)) — Serafim Gomes Oliveira v Lusitânia — Companhia de Seguros, SA
   (Case C-362/11) (1)

   (Article 99 of the Rules of Procedure - Insurance against civil liability in respect of the use of motor vehicles - Directives 72/166/EEC, 84/5/EEC and 90/232/EEC - Right to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles - Victim’s contribution to loss or injury - Limitation of the right to compensation)
   2013/C 225/68
   Language of the case: Portuguese

      Referring court

   Tribunal Judicial de Santa maria da Feira

      Parties to the main proceedings

      Applicant: Serafim Gomes Oliveira

      Defendant: Lusitânia — Companhia de Seguros, SA

      Re:

   Request for a preliminary ruling –Tribunal Judicial de Santa Maria da Feira — Interpretation of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ 1972 L 103, p. 1), Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17), Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33, in particular, Article 1a thereof), Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive) (OJ 2000 L 181, p. 65) and Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles (OJ 2005 L 149, p. 14) — Accident between a motor vehicle and a bicycle — Cyclist responsible for less than 20 % of the fault — Proportional reduction of the right to compensation — Admissibility

      Operative part of the order

   Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles must be interpreted as not precluding national provisions falling within civil liability law that allow exclusion or limitation of the right of the victim of an accident to claim compensation under the civil liability insurance of the motor vehicle involved in the accident, on the basis of an individual assessment of the exclusive or partial contribution of that victim to his own loss or injury.

      (1)  OJ C 282, 24.9.2011.


title: Joined Cases C-136/10 and C-178/10: Order of the Court (Fifth Chamber) of 8 April 2011 (references for a preliminary ruling from the Curtea de Apel Târgu-Mureș (Romania)) — Daniel Ionel Obreja v Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș (C-136/10), Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Finanțelor Publice Târgu-Mureș v SC Darmi SRL (C-178/10) (First subparagraph of Article 104(3) of the Rules of Procedure — Internal taxation — Article 110 TFEU — Pollution tax levied upon first registration of motor vehicles)

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/7

         Order of the Court (Fifth Chamber) of 8 April 2011 (references for a preliminary ruling from the Curtea de Apel Târgu-Mureș (Romania)) — Daniel Ionel Obreja v Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș (C-136/10), Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Finanțelor Publice Târgu-Mureș v SC Darmi SRL (C-178/10)
   (Joined Cases C-136/10 and C-178/10) (1)

   (First subparagraph of Article 104(3) of the Rules of Procedure - Internal taxation - Article 110 TFEU - Pollution tax levied upon first registration of motor vehicles)
   2011/C 211/11
   Language of the case: Romanian

      Referring court

   Curtea de Apel Târgu-Mureș

      Parties to the main proceedings

      Applicants: Daniel Ionel Obreja (C-136/10), Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Finanțelor Publice Târgu-Mureș (C-178/10)

      Defendants: Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș (C-136/10), SC Darmi SRL (C-178/10)

      Re:

   Reference for a preliminary ruling — Curtea de Apel Târgu-Mureș — Registration of second-hand vehicles previously registered in other Member States — Environmental tax levied on motor vehicles upon first registration in a Member State — Whether national legislation is compatible with Articles 23, 25 and 90 EC — Possible derogation on the basis of Article 174 EC

      Operative part of the order

   Article 110 TFEU must be interpreted as precluding a Member State from introducing a pollution tax affecting motor vehicles on their first registration in that Member State, if that fiscal measure is so designed as to discourage the putting into service, in that Member State, of second-hand vehicles bought in other Member States, without, however, discouraging the purchase of second-hand vehicles of the same age and condition on the national market.

      (1)  OJ C 161, 19.6.2010.


title: Case C-167/06 P: Appeal brought on  29 March 2006  by Ermioni Komninou, Grigorios Dokos, Donatos Pappas, Vasilios Pappas, Aristidis Pappas, Eleftheria Pappa, Lamprini Pappa, Irini Pappa, Alexandra Dokou, Fotios Dimitriou, Zoi Dimitriou, Petros Bolosis, Despina Bolosi, Konstantinos Bolosis and Thomas Bolosis against the order made by the Court of First Instance (Fifth Chamber) on  13 January 2006  in Case T-42/04 Komninou and Others v Commission

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/34

         Appeal brought on 29 March 2006 by Ermioni Komninou, Grigorios Dokos, Donatos Pappas, Vasilios Pappas, Aristidis Pappas, Eleftheria Pappa, Lamprini Pappa, Irini Pappa, Alexandra Dokou, Fotios Dimitriou, Zoi Dimitriou, Petros Bolosis, Despina Bolosi, Konstantinos Bolosis and Thomas Bolosis against the order made by the Court of First Instance (Fifth Chamber) on 13 January 2006 in Case T-42/04 Komninou and Others v Commission
   (Case C-167/06 P)
   (2006/C 131/64)
   Language of the case: Greek
   Parties

      Appellants: Ermioni Komninou, Grigorios Dokos, Donatos Pappas, Vasilios Pappas, Aristidis Pappas, Eleftheria Pappa, Lamprini Pappa, Irini Pappa, Alexandra Dokou, Fotios Dimitriou, Zoi Dimitriou, Petros Bolosis, Despina Bolosi, Konstantinos Bolosis and Thomas Bolosis (represented by: G. Dellis, dikigoros)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               Allow the present application;

               —

               set aside the order appealed against, made by the Court of First Instance on 13 January 2006 in Case T-42/04;

               —

               rule on the appellants' application of 10 February 2004, allow the application and order the European Commission to pay to each of the appellants the sum of EUR 200 000 together with statutory interest at the rate of 8 % from delivery of the Court's judgment until payment;

               —

               order the defendant to pay all the costs of the appellants at first instance and on appeal and, in the alternative, should the present appeal be dismissed, order the defendant to pay the costs or, at any rate, each party to bear his own costs.

         Grounds of appeal and main arguments
   The appeal in Case C-167/06 has been brought by 15 appellants, who reside in Parga (Prefecture of Preveza, Greece), against the order of the Court of First Instance of the European Communities of 13 January 2006 in Case T-42/04. That order dismissed as clearly unfounded their action for compensation of 10 February 2004 brought against the Commission of the European Communities.
   By their application of 10 February 2004 to the Court of First Instance of the European Communities, the appellants brought proceedings against the Commission for compensation in respect of the non-material damage suffered by them by reason of the Commission's conduct following their complaint of 7 July 2005 alleging that the Greek authorities had infringed Community environmental law, in particular Articles 3 and 5 of Directive 85/337, in relation to the design and construction of a biological sewage treatment plant at a place known as Varka.
   They have submitted that the Commission's overall and continuous conduct in their regard amounts to a clear case of maladministration. In particular:

               1.

               At an initial stage, the Commission (i) did not inform them in good time of progress with regard to the complaint, concealed information and misled them as to the progress of their case, (ii) rejected their complaint with a statement of reasons clearly contrary to Community environmental law and the Court's case-law and (iii) did not observe basic rules of impartiality in relation to the handling of the case by its officials.

               2.

               Subsequently, after the aforementioned matters had been confirmed by decision of the Ombudsman, the Commission failed to take basic measures to make good the foregoing forms of maladministration. What is more, it has persisted in treating the appellants in a manner that is dilatory and lacks transparency: first, it has refused to admit the errors made by it to the appellants' detriment and, second, it has refused (both at the time when the action for compensation was brought and now) to examine the substance of their complaint and to ensure that Community law is interpreted uniformly and correctly.

         The appellants have submitted in particular that, irrespective of whether or not the Commission's position on the application of Directive 85/337 is correct, the Commission has, by its conduct, flagrantly infringed its fundamental obligations to the appellants as European citizens and as persons subject to administrative authorities: it has infringed, in particular, the principles of good administration, impartiality, legal certainty and the protection of legitimate expectations, while it has also in fact infringed the right of complaint laid down for European citizens.
   By the order under appeal, the Court of First Instance, without examining the admissibility of the action for compensation, applied Article 111 of its Rules of Procedure and held (i) that the action manifestly lacked any foundation in law and (ii) that it was not necessary for the proceedings before it to continue, in particular by means of the exchange of further pleadings and an oral procedure. It therefore dismissed the action in its entirety and ordered the appellants to bear not only their own costs but also the Commission's. Notice of the order was given to the lawyer acting for the appellants in the present case by registered letter of 25 January 2006.
   The appellants consider the order to be wrong in law for the purposes of the second subparagraph of Article 225(1) of the EC Treaty and Article 58 of the Statute of the Court of Justice; the appeal against it, provided for in those articles and in Article 56 of the Statute, is admissible and has been brought within the time-limit and on the basis of a clear legal interest. In their appeal, the appellants seek to show the errors of law in the order.
   Those errors concern:

               (i)

               the fact that the Court of First Instance failed completely to examine the appellants' pleas and arguments relating to infringement of the right of complaint, as enshrined as an aspect of European citizenship;

               (ii)

               the fact that the Court of First Instance in any event distorted the sense of the Ombudsman's decision of 18 July 2002, which constituted the most relevant item of evidence relied upon by the appellants in their action, or at any rate erred in the legal characterisation of that item of evidence;

               (iii)

               the fact that the Court of First Instance interpreted and applied incorrectly the principles of good administration, impartiality and the protection of legitimate expectations, in certain instances distorted the sense of the evidence and in any event erred in the legal characterisation of the facts of the action which relate to the infringement of those principles;

               (iv)

               the fact that the Court of First Instance failed to examine the action for compensation or, in any event, examined it in a deficient manner, inasmuch as it treated the Commission's conduct in question as a collection of isolated events separate from one another and not in an overall manner, despite the fact that the infringement of Community rules relied upon by the appellants and the damage suffered by them result principally from the overall stance of the Commission over a period of eight years.

         More generally, the appellants consider that the Court of First Instance failed to draw the correct conclusions from the fundamental rule that the Commission is responsible for ensuring that procedures progress in a correct and lawful manner and in the event of error must bear the financial burden of maladministration. Furthermore, failure to observe the fundamental rules governing authorities' conduct can give rise to non-material harm in respect of which citizens may seek reparation and damages.


title: Order of the Court of First Instance of 19 September 2001 in Case T-64/99 DEP: UK Coal plc v Commission of the European Communities (Taxation of costs)

text:
16.2.2002               EN                        Official Journal of the European Communities                                       C 44/13
J.N. Louis and V. Peere, lawyers, with an address for service in                   ORDER OF THE COURT OF FIRST INSTANCE
Luxembourg, against Commission of the European Communi-
ties (Agents: J. Currall, F. Clotuche-Duvieusart and D. Wael-
broeck) application for the annulment of the decision of the
selection board for internal competition COM/TA/99 not to                                          of 11 September 2001
admit the applicant to the tests for that competition — the
Court of First Instance (Fourth Chamber), composed of
P. Mengozzi, President, V. Tiili and R.M. Moura Ramos, Judges;
S. Haukka, Legal Secretary, for the Registrar, gave a judgment               in Case T-270/99, Polyxeni Tessa and Andreas Tessas v
on 15 November 2001, in which it:                                                          Council of the European Union (1)
1.    dismisses the application;
                                                                             (Application for annulment — Natural or legal persons —
2.    orders the parties to bear their own costs.                            Measures of direct and individual concern — Council
                                                                             decision under the third paragraph of Article 93(2) of the
                                                                             EC Treaty (now the third paragraph of Article 88(2) EC —
(1) OJ C 247 of 26.8.2000.                                                                             Inadmissibility)
                                                                                (2002/C 44/24)
                                                                                (Language of the case: Greek)
      ORDER OF THE COURT OF FIRST INSTANCE
                      of 19 September 2001
in Case T-64/99 DEP: UK Coal plc v Commission of the
                   European Communities (1)                                  In Case T-270/99: Polyxeni Tessa and Andreas Tessas, residing
                                                                             in Larissa (Greece), represented by A. Tessas, lawyer, with an
                                                                             address for service in Luxembourg, against Council of the
                         (Taxation of costs)
                                                                             European Union (Agents: J. Carbery and D. Zachariou) sup-
                                                                             ported by Hellenic Republic (Agents: I. Chalkias and P. Mylono-
                           (2002/C 44/23)                                    poulos) — application for the annulment of the Council
                                                                             decision of 15 December 1998 relating to the taking over by
                                                                             the Hellenic Republic of the debts of certain agricultural
                   (Language of the case: English)                           cooperatives and other agricultural businesses owed to the
                                                                             Agricultural Bank of Greece — the Court of First Instance
                                                                             (Extended Fourth Chamber), composed of P. Mengozzi, Presi-
                                                                             dent, R. Garcı́a-Valdecasas, V. Tiili, R. M. Moura Ramos and
In Case T-64/99 DEP: UK Coal plc, formerly RJB Mining plc,                   J. D. Cooke, Judges; H. Jung, Registrar, has made an order on
established in Harworth (United Kingdom), represented by                     11 September 2001, the operative part of which is as follows:
J. Lawrence, Solicitor, with an address for service in Luxem-
bourg, against Commission of the European Communities
(Agents: K.-D. Borchardt and N. Khan) — application for
taxation of the costs to be paid by the defendant to the                     1.    The action is dismissed as inadmissible;
applicant pursuant to the order of the Court of First Instance
of 25 July 2000 in Case T-64/99 RJB Mining v Commission
(not published in the ECR) — the Court of First Instance                     2.    The applicants shall pay their own costs and those of the
(Second Chamber, Extended Composition), composed of                                defendant;
A.W.H. Meij, President, K. Lenaerts, A. Potocki, M. Jaeger and
J. Pirrung, Judges; H. Jung, Registrar, has made an order on
19 September 2001, the operative part of which is as follows:                3.    The Hellenic Republic shall pay its own costs.
The amount of costs recoverable by the applicant in Case T-64/99
shall be GBP 13 000.
                                                                             (1) OJ C 63 of 4.3.2000.
(1) OJ C 160 of 5.6.1999.


title: Case C-145/00: Action brought on 17 April 2000 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
12.8.2000               EN                   Official Journal of the European Communities                                        C 233/13
Ltd against Swingward Ltd, Boehringer Ingelheim AG and                        (a)   does that requirement apply to all such cases of the
Boehringer Ingelheim Pharma AG against Dowelhurst Ltd,                              trade mark, including in advertising, re-labelling and
Glaxo Group Ltd against Dowelhurst Ltd, SmithKline Beecham                          repackaging or, if only some uses, which?
plc, Beecham Group plc and SmithKline & French Laboratories
Ltd against Dowelhurst Ltd and Eli Lilly & Company against                    (b) must the importer or dealer give notice to the
Dowelhurst Ltd, on the following questions:                                         proprietor or is it sufficient that the proprietor
                                                                                receives such notice?
1.    Can a proprietor of a trade mark use his trade mark rights
      to stop or hinder the import of his own goods from one                  (c)   how much notice must be given.
      Member State into another or to hinder their subsequent
      marketing or promotion when the importation, marke-               8.    Is a national court of a Member State entitled, at the suit of
      ting or promotion causes no, or no substantial, harm to                 the proprietor of trade mark rights, to order injunctions,
      the specific subject matter of his rights?                              damages, delivery up and other relief in respect of
                                                                              imported goods or the packaging or advertisements
                                                                              therefor where the making of such an order (a) stops or
2.    Is the answer to the previous question different if the                 impedes the free movement of goods placed upon the
      ground relied on by the proprietor is that the importer or              market within the EC by the proprietor or with his
      subsequent dealer is using his mark in a way which,                     consent but (b) is not for the purpose of preventing harm
      although not prejudicial to its specific subject matter, is             to the specific subject matter of the rights and does not
      not necessary?                                                          help to prevent such harm?
3.    If an importer of the proprietor’s goods or a dealer in
      such imported goods needs to show that his use of the
      proprietor’s mark is ‘necessary’, is that requirement met
      if it is shown that the use of the mark is reasonably
      required to enable him to access (a) part only of the
      market in the goods, or (b) the whole of the market in
      the goods; or does it require that the use of the mark was
      essential to enabling the goods to be placed on the market        Action brought on 17 April 2000 by the Commission of
      and if none of these, what does ‘necessary’ mean?                 the European Communities against the Kingdom of the
                                                                                Netherlands
4.    If the proprietor of a mark is, prima facie, entitled to
      enforce his national trade mark rights against any use of                                  (Case C-145/00)
      his mark on or in relation to goods which is not
      necessary, is it abusive conduct and a disguised restriction
      on trade in accordance with the second sentence of                                         (2000/C 233/24)
      Article 30 of the Treaty, to use that entitlement in order
      to hinder or exclude parallel imports of his own goods            An action against the Kingdom of the Netherlands was
      which do not threaten the specific subject matter or              brought before the Court of Justice on 17 April 2000 by the
      essential function of the trade mark?                             Commission of the European Communities, represented by
                                                                        K. Banks and C. Van Der Hauwaert, of its Legal Service, acting
                                                                        as Agents, with an address for service in Luxembourg at the
5.    Where an importer or someone dealing in imported
                                                                        office of C. Gómez de la Cruz, of its Legal Service, Wagner
      goods intends to use the proprietor’s trade mark on or in
                                                                        Centre, Kirchberg.
      relation to those goods and such use does and will not
      prejudice the specific subject matter of the mark, must he
      nevertheless give the proprietor advance notice of his            The applicant claims that the Court should:
      intended use of the mark?
                                                                        —     declare that, by failing within the prescribed period to
6.    If the answer to the previous question is in the affirmative,           adopt the laws, regulations and administrative measures
      does that mean that failure of the importer or dealer to                necessary in order to implement the provisions of
      give such notice has the effect of entitling the proprietor             Directive 97/36/EC (1) of the European Parliament and of
      to restrain or hinder the importation or further commerci-              the Council of 30 June 1997 amending Council Directive
      alisation of those goods even though such importation or                89/552/EEC (2) on the coordination of certain provisions
      further commercialisation will not prejudice the specific               laid down by law, regulation or administrative action in
      subject matter of the mark?                                             Member States concerning the pursuit of television
                                                                              broadcasting activities, the Kingdom of the Netherlands
                                                                              has failed to comply with its obligations under the Treaty.
7.    If an importer or someone dealing in imported goods                     However, this application has no bearing on the adoption
      must give prior notice to the proprietor in respect of uses             of the measures required in consequence of the amend-
      of the trade mark which do not prejudice the specific                   ments made by Article 1 of Directive 97/36/EC to
      subject matter of the mark,                                             Articles 10 to 19 inclusive of Directive 89/552;
 ---pagebreak--- C 233/14               EN                     Official Journal of the European Communities                                         12.8.2000
—     order the Kingdom of the Netherlands to pay the costs.             Handelsgericht (Regional Court, sitting as Commercial Court),
                                                                         Wels, Austria, of 9 May 2000, which was received at the Court
                                                                         Registry on 15 May 2000, for a preliminary ruling in the
Pleas in law and main arguments                                          company register proceedings brought by Lutz Gesellschaft
                                                                         mbH, Dr Richard Seifert, Dr Andreas Seifert, Dr Johann Georg
On the basis of Articles 10 and 249 EC and of Article 2 of               Schelling, Walter Kaltenecker, Werner Kneidinger and Günther
Directive 97/36/EC, the Kingdom of the Netherlands was                   Gruber on the following questions:
required by no later than 30 December 1998 to bring into
force the laws, regulations and administrative measures neces-
sary in order to comply with the directive.                              1.   Do the measures provided for in Article 2(1)(f) of First
                                                                              Directive 68/151/EEC (1) and Article 47 of Fourth Directi-
                                                                              ve 78/660/EEC (2) regarding the disclosure obligation on
(1) OJ 1998 L 6, p. 43.                                                       capital companies infringe Article 44(2)(g) EC, which
(2) OJ 1989 L 298, p. 23.                                                     confers power to coordinate the safeguards which, for
                                                                              the protection of the interests of members and creditors,
                                                                              are required by Member States of companies?
                                                                         2.   Do the measures provided for in Article 2(1)(f) of First
                                                                              Directive 68/151/EEC and Article 47 of Fourth Directive
Reference for a preliminary ruling by the Arbeidshof te                       78/660/EEC regarding the disclosure obligation on capital
Antwerpen, Hasselt Division, by order of that court of                        companies infringe Article 44(2)(g) EC, in that they are
4 May 2000 in the case of M.-J. Verwayen-Boelen against                       not necessary to eliminate restrictions on establishment
            Rijksdienst voor Arbeidsvoorziening                               or to attain other objectives of the EEC Treaty (in
                                                                              particular the establishment of uniform general legal
                          (Case C-175/00)                                     requirements)?
                         (2000/C 233/25)                                 3.   Is the fact that Article 2(1)(f) of First Directive 68/151/EEC
                                                                              in conjunction with Article 47 of Fourth Directive
Reference has been made to the Court of Justice of the                        78/660/EEC compels undertakings to reveal business
European Communities by order of the Arbeidshof te Antwer-                    secrets by imposing the obligation to disclose the balance
pen (Labour Court Antwerp), Hasselt Division, of 4 May 2000,                  sheet and the profit and loss account for each financial
received at the Court Registry on 10 May 2000, for a                          year on pain of a penalty, and that the protective objective
preliminary ruling in the case of M.-J. Verwayen-Boelen                       provided for can be adequately attained by other — less
against Rijksdienst voor Arbeidsvoorziening on the following                  intrusive — measures, compatible with the general legal
question:                                                                     principle of proportionality?
Must Article 4(1) of Regulation (EEC) No 1408/71, according              4.   Is the fact that Article 2(1)(f) of First Directive 68/151/EEC
to which that regulation applies to branches of social security,              in conjunction with Article 47 of Fourth Directive
be interpreted as meaning that a scheme such as the RWW                       78/660/EEC compels undertakings to reveal business
scheme, which has characteristics both of social security and                 secrets by imposing the obligation to disclose the balance
of social assistance, falls within the scope of that regulation, so           sheet and the profit and loss account for each financial
that the period during which an employed person receives                      year on pain of a penalty, and that the protective objective
benefits under this scheme can qualify as an insurance period                 provided for can be adequately attained by other — less
which is to be taken into account when assessing whether that                 intrusive — measures, compatible with the fundamental
person can have entitlement to unemployment benefits in                       right to property in Community law?
Belgium?
                                                                         5.   Is the fact that Article 2(1)(f) of First Directive 68/151/EEC
                                                                              in conjunction with Article 47 of Fourth Directive
                                                                              78/660/EEC compels undertakings to reveal business
                                                                              secrets by imposing the obligation to disclose the balance
                                                                              sheet and the profit and loss account for each financial
Reference for a preliminary ruling from the Landesgericht                     year on pain of a penalty, and that the protective objective
Wels by order of that court of 9 May 2000 in the company                      provided for can be adequately attained by other — less
register proceedings brought by Lutz Gesellschaft mbH,                        intrusive — measures, compatible with the fundamental
Dr Richard Seifert, Dr Andreas Seifert, Dr Johann Georg                       right of freedom to pursue an economic activity in
Schelling, Walter Kaltenecker, Werner Kneidinger and                          Community law?
                         Günther Gruber
                          (Case C-182/00)
                                                                         (1) OJ, English Special Edition 1968 (I), p. 41.
                                                                         (2) OJ 1978 L 222, p. 11.
                         (2000/C 233/26)
Reference has been made to the Court of Justice of the
European Communities by an order of the Landes- als


title: Joined Cases F-20/12 and F-43/12: Judgment of the Civil Service Tribunal (Second Chamber) of 16 September 2013 — Wurster v EIGE (Civil Service — Staff of the EIGE — Temporary staff — Procedure to assess the management capabilities of staff of the EIGE recently appointed to a middle management post — Reassignment to a non-management post — Right to be heard — Scope of the law — Finding of the Tribunal of its own motion — Substitution of grounds made by the Tribunal of its own motion)

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/31

      Judgment of the Civil Service Tribunal (Second Chamber) of 16 September 2013 — Wurster v EIGE
      (Joined Cases F-20/12 and F-43/12) (1)

      (Civil Service - Staff of the EIGE - Temporary staff - Procedure to assess the management capabilities of staff of the EIGE recently appointed to a middle management post - Reassignment to a non-management post - Right to be heard - Scope of the law - Finding of the Tribunal of its own motion - Substitution of grounds made by the Tribunal of its own motion)
      (2014/C 71/58)
      Language of the case: French

         Parties

         Applicant: Barbara Wurster (Vilnius, Lithuania) (represented initially by: T. Bontinck and S. Woog, lawyers, and subsequently by: T. Bontinck and S. Greco, lawyers)

         Defendant: European Institute for Gender Equality (EIGE) (represented by: M. Velardo, lawyer)

         Re:

      Firstly, application for the annulment of the defendant’s decision to reassign the applicant from the position of Head of Operations to a Team Leader position not requiring managerial skills. Secondly, application to annul the decision of the Director of the EIGE rejecting the applicant’s claim for the management allowance for the period between 1 June and 30 September 2011.

         Operative part of the judgment

      The Tribunal:

                  1.

                  Annuls the decision of the Director of the European Institute for Gender Equality of 8 September 2011 to reassign Ms Wurster to the post of Team Leader of the Research and Documentation Centre;

                  2.

                  Dismisses the remainder of the action;

                  3.

                  Orders the European Institute for Gender Equality to bear its own costs and to pay the costs incurred by Ms Wurster.

         (1)  OJ C 138, 12.5.2012, p. 35; OJ C 200, 7.7.2012, p. 21.


title: Case C-468/14: Judgment of the Court (Ninth Chamber) of 16 July 2015 — European Commission v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Directive 2001/37/EC — Manufacture, presentation and sale of tobacco products — Articles 2(4) and 8 — Prohibition on the sale of tobacco for oral use — Loose ‘Snus’ (oral tobacco))

text:
               21.9.2015

               EN

               Official Journal of the European Union

               C 311/12

         Judgment of the Court (Ninth Chamber) of 16 July 2015 — European Commission v Kingdom of Denmark
   (Case C-468/14) (1)

   ((Failure of a Member State to fulfil obligations - Directive 2001/37/EC - Manufacture, presentation and sale of tobacco products - Articles 2(4) and 8 - Prohibition on the sale of tobacco for oral use - Loose ‘Snus’ (oral tobacco)))
   (2015/C 311/13)
   Language of the case: Danish

      Parties

      Applicant: European Commission (represented by: C. Cattabriga and M. Clausen, acting as Agents)

      Defendant: Kingdom of Denmark (represented by: C. Thorning and M. Wolff, acting as Agents)

      Operative part of the judgment

   The Court:

               1)

               declares that, by having continued to authorise the sale of loose ‘snus’ (oral tobacco), the Kingdom of Denmark has failed to fulfil its obligations under Article 2(4) in conjunction with Article 8 of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, and

               2)

               orders Kingdom of Denmark to pay the costs.

      (1)  OJ C 439, 8.12.2014.


title: Order of the President of the Court of First Instance of 2 June 2005 in Case T-125/05 R: Umwelt- und Ingenieurtechnik GmbH Dresden v Commission of the European Communities (Tendering procedure — Interim proceedings — Urgency — Absence)

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/23

      ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

   of 2 June 2005
   in Case T-125/05 R: Umwelt- und Ingenieurtechnik GmbH Dresden v Commission of the European Communities
   (Tendering procedure - Interim proceedings - Urgency - Absence)
   (2005/C 205/43)
   Language of the case: German
   In Case T-125/05 R: Umwelt- und Ingenieurtechnik GmbH Dresden, established in Dresden (Germany), represented by H. Robl, lawyer, against Commission of the European Communities (Agents: M. Wilderspin and S. Fries, with an address for service in Luxembourg): action for suspension of implementation of the decisions of the Commission not to award the applicant Lot No 2 of the EuropeAid/119151/D/S/UA contract called ‘Plan Improvement Project for South Ukraine NPP’ and to award the lot to another company and, alternatively, for an order for other interim measures — the President of the Court of First Instance made an order on 2 June 2005, the operative part of which is as follows:

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Case C-425/13: Judgment of the Court (Grand Chamber) of 16 July 2015 — European Commission v Council of the European Union (Action for annulment — Council decision authorising the opening of negotiations on linking the EU greenhouse gas emissions trading scheme with a greenhouse gas emissions trading system in Australia — Negotiating directives — Special committee — Articles 13(2) TEU, 218(2) to (4) TFEU and 295 TFEU — Institutional balance)

text:
               21.9.2015

               EN

               Official Journal of the European Union

               C 311/2

         Judgment of the Court (Grand Chamber) of 16 July 2015 — European Commission v Council of the European Union
   (Case C-425/13) (1)

   ((Action for annulment - Council decision authorising the opening of negotiations on linking the EU greenhouse gas emissions trading scheme with a greenhouse gas emissions trading system in Australia - Negotiating directives - Special committee - Articles 13(2) TEU, 218(2) to (4) TFEU and 295 TFEU - Institutional balance))
   (2015/C 311/02)
   Language of the case: English

      Parties

      Applicant: European Commission (represented by G. Valero Jordana and F. Castillo de la Torre, acting as Agents)

      Intervener in support of the applicant: European Parliament (represented by R. Passos and D. Warin, acting as Agents)

      Defendant: Council of the European Union (represented by K. Michoel, M. Moore and J.-P. Hix, acting as Agents)

      Interveners in support of the defendant: Czech Republic (represented by M. Smolek, J. Vláčil and E. Ruffer, acting as Agents), Kingdom of Denmark (represented by C. Thorning, L. Volck Madsen and U. Melgaard, acting as Agents), Federal Republic of Germany (represented by T. Henze and B. Beutler, acting as Agents), French Republic (represented by D. Colas, G. de Bergues, F. Fize and N. Rouam, acting as Agents), Kingdom of the Netherlands (represented by M. Bulterman and M. de Ree, acting as Agents), Republic of Poland (represented by B. Majczyna, acting as Agent), Kingdom of Sweden (represented by A. Falk, C. Meyer-Seitz, U. Persson, E. Karlsson, L. Swedenborg and C. Hagerman, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented by E. Jenkinson and M. Holt, acting as Agents, and J. Holmes and B. Kennelly, Barristers)

      Operative part of the judgment

   The Court:

               1)

               Annuls, in Section A, entitled ‘Procedure for negotiations’, of the Annex to the Council Decision of 13 May 2013 authorising the opening of negotiations on linking the EU emissions trading scheme with an emissions trading system in Australia:

                           —

                           the second sentence of paragraph 1 of that section, according to which, ‘where appropriate, detailed negotiating positions of the Union shall be established within the special committee referred to in Article 1(2) or within the Council’, and

                           —

                           the words ‘and establish negotiating positions’ in paragraph 3 of that section;

               2)

               Dismisses the action as to the remainder;

               3)

               Orders the European Commission and the Council of the European Union to bear their own costs, including those relating to the procedure that gave rise to the order in Commission v Council (C-425/13, EU:C:2014:91);

               4)

               Orders the European Parliament and the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the French Republic, the Kingdom of the Netherlands, the Republic of Poland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

      (1)  OJ C 274, 21.9.2013.


title: Removal from the register of T-156/97

text:
C 7/28               EN                  Official Journal of the European Communities                                10. 1. 98
it has been shown that the Council and the Commission               Majerus-Weis, residing at Christnach (Luxembourg); 42.
have rendered the European Union liable by the                      Henri Mangen, residing at Bertrange (Luxembourg); 43.
commission of highly reprehensible acts and the failure to          Guy Mangen, residing at Berg (Luxembourg); 44. Jean-
adopt measures which would have allowed rectification in            Paul Martzen, residing at Merscheid (Luxembourg);
good time of a catastrophic situation endangering not only          45. Aloyse Marx, residing at Garnich (Luxembourg);
human health but also the public's faith in the institutions        46. Camille Mathey, residing at Stegen (Luxembourg);
governing them. They state that the acts of commission              47. Jean-Marcel Mettendorff, residing at Mecher
and omission by the Council and the Commission have                 (Luxembourg); 48. Jean-Marie Meyrer, residing at
undermined the confidence of the inhabitants of the Union           Welfrange (Luxembourg); 49. Marc Meyer-Ernzen,
in the basic foodstuffs produced in it and so created an            residing at Echternach (Luxembourg); 50. ReneÂ Molitor,
unreasonable fear of those products.                                residing at Berndorf (Luxembourg); 51. Ets. Nicolay
                                                                    FreÁres CEA, established at Reuland (Luxembourg); 52.
The applicants state that, as a result of that misconduct,          Armand Noe, residing at Hachiville (Luxembourg); 53.
all producers of bovine meat and all producers of cows'             Jos Olinger, residing at Ettelbrück (Luxembourg); 54. Ets.
milk have suffered a direct loss of revenue from their              Olinger and Neu GA, established at Grosbous
farming activities of between 25 % and 30 % over a                  (Luxembourg); 55. Georges Peping, residing at Ersange
period of at least three years. They estimate the loss per          (Luxembourg); 56. Ed Praus, residing at Koetschette
undertaking per year as between Lfrs 750 000 and                    (Luxembourg); 57. Emile Raus, residing at Ehlange/Mess
1 500 000, but without prejudice to a subsequent expert's           (Luxembourg); 58. Ets. Sopibo (Louis Boonen),
report. Each producer is therefore claiming three years'            established at Haller (Luxembourg); 59. Nico Schank-
losses of Lfrs 1 000 000, that is to say Lfrs 3 000 000.            Neser, residing at Hautbellain (Luxembourg); 60. Camille
                                                                    Schiltz, residing at Bourglinster (Luxembourg); 61. Robert
                           ANNEX                                    Schmitz-Georges, residing at Marnach (Luxembourg);
                                                                    62. Ets. Sopraco SC, established at Manternach
1. Robert Mehlen, residing at Manternach (Luxembourg);              (Luxembourg); 63. Anne Steichen-Leclere, residing at
2.    Wim      Albers,   residing     at   Boevang/Clervaux         Mondercange (Luxembourg); 64. Etc. Savaco SC,
(Luxembourg); 3. AndreÂ Asseray, residing at Pratz                  established at Colpach-Bas (Luxembourg); 65. Raymond
(Luxembourg); 4. Jos Bich-Mathes, residing at Betzdorf              Thull, residing at Alzingen (Luxembourg); 66. Nico
(Luxembourg); 5. Gusty Biren, residing at Luxembourg; 6.            Turmes, residing at Knaphoscheid (Luxembourg); 67. Jean
Nico Brack, residing at Eschdorf (Luxembourg); 7. Severin           Weiler, residing at Hobscheid (Luxembourg); 68. Norbert
Boonen, residing at Elvange (Luxembourg); 8. Ets.                   Welter, residing at Bourglinster (Luxembourg); 69. Marc
Capriso SC, established at Canach (Luxembourg); 9. Leon             Zenner, residing at Lipperscheid (Luxembourg); 70. LeÂon
Clees and Son, residing at Allerborn (Luxembourg); 10.              Zigrand, residing at Niederpallen (Luxembourg); 71. Jean-
Peter Dahmen, residing at Mützenich (Federal Republic of            Claude Zinnen, residing at Savelborn (Luxembourg).
Germany); 11. Robert Duhr-Arendt, residing at
Manternach (Luxembourg); 12. Jean Dupont, residing at
Diekirch (Luxembourg); 13. Camille and Paul Eicher,
residing at Marnach (Luxembourg); 14. Alphonse Elsen,
residing at Goeblange (Luxembourg); 15. Nic Erpelding,                       Removal from the register of T-111/95 (1)
residing at Oberwampach (Luxembourg); 16. Peter Feinen,                                       (98/C 7/72)
residing at Rommersheim (Federal Republic of Germany);
17. Alphonse Ferber, residing at Buschrodt (Luxembourg);                            (Language of the case: French)
18. Marcel Ferring, residing at Betzdorf (Luxembourg);              By order of 13 November 1997, the President of the First
19. Henri Frank, residing at Garnich (Luxembourg);                  Chamber of the Court of First Instance of the European
20. Georges Friederich, residing at Aspelt (Luxembourg);            Communities ordered the removal from the register of
21. Josy Gengler, residing at Koerich (Luxembourg);                 Case T-111/95: Pierre Jaminon v. Council of the European
22. Gerekens FreÁres, residing at Reichlange (Luxembourg);          Union and Commission of the European Communities.
23. Ed. Gillen, residing at Manternach (Luxembourg);
24. Jean-Marie Godelet, residing at Ell (Luxembourg);               (1) OJ C 189, 22. 7. 1995.
25. Charles Goedert, residing at Ospern (Luxembourg);
26. Fernand Goedert, residing at Ell (Luxembourg);
27. Jacques Greisch-Schmidt, residing at Sanem
(Luxembourg); 28. Louis Guth, residing at Hivange
(Luxembourg); 29. Marc Hansen, residing at Lellig                            Removal from the register of T-156/97 (1)
(Luxembourg); 30. Hilgert-Schmidt, residing at Olm                                            (98/C 7/73)
(Luxembourg); 31. Ets. Hogemav SC, established at
Imbringen (Luxembourg); 32. Jules Jungels, residing at                             (Language of the case: German)
Oetrange (Luxembourg); 33. Mathias and Heinrich Kaut,
                                                                    By order of 12 November 1997, the President of the
residing at Burg-Reuland (Belgium); 34. Emile Kieffer,
                                                                    Fourth Chamber of the Court of First Instance of the
residing at Reichlange (Luxembourg); 35. Guy Kneip,
                                                                    European Communities ordered the removal from the
residing at Beiler (Luxembourg); 36. Marcel Laplume,
                                                                    register of Case T-156/97: Achim Berge v. Commission of
residing at Asselborn (Luxembourg); 37. Edy LoeÈsch-
                                                                    the European Communities.
Eischen, residing at Buschrodt (Luxembourg); 38. Joseph
Lux, residing at Holzem (Luxembourg); 39. AndreÂ
                                                                    (1) OJ C 228, 26. 7. 1997.
Majerus, residing at Mecher (Luxembourg); 40.Servais
Majerus, residing at Kuborn (Luxembourg); 41. Alphonse


title: Case C-486/01 P: Appeal brought on 17 December 2001 by the Front National against the judgment of 2 October 2001 delivered by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-222/99, T-327/99 and T-329/99 between J.C. Martinez and Ch. de Gaulle, the Front National, E. Bonino and Others and the European Parliament

text:
6.4.2002               EN                    Official Journal of the European Communities                                        C 84/47
Action brought on 13 December 2001 by the Commission                    European Communities in Joined Cases T-222/99, T-327/99
of the European Communities against the French Republic                 and T-329/99 between J.C. Martinez and Ch. de Gaulle, the
                                                                        Front National, E. Bonino and Others and the European
                         (Case C-484/01)                                Parliament was brought before the Court of Justice of the
                                                                        European Communities on 17 December 2001 by the Front
                                                                        National.
                          (2002/C 84/81)
                                                                        The appellant claims that the Court should:
An action against the French Republic was brought before the
Court of Justice of the European Communities on 13 December             —     declare admissible the appeal brought by the Front
2001 by the Commission of the European Communities,                           National against the judgment of 2 October 2001 of the
represented by R. Tricot, acting as Agent, with an address for                Court of First Instance of the European Communities,
service in Luxembourg.
                                                                        —     find that there has been an infringement of Community
The Commission of the European Communities claims that                        law by the Court of First Instance,
the Court should:
                                                                        —     quash the limbs and grounds of the contested judgment
—     declare that, by failing to adopt the laws, regulations and             in whole or in part,
      administrative measures necessary in order to comply
      with Council Directive 97/43/Euratom of 30 June 1997              —     rule in accordance with the law, set aside the contested
      on health protection of individuals against the dangers of              judgment, or, in the alternative, remit the case to the
      ionizing radiation in relation to medical exposure (1), or              Court of First Instance of the European Communities
      at any rate by failing to notify those measures to the                  pursuant to Article 54 of the Statute of the Court of
      Commission, the French Republic has failed to fulfil its                Justice,
      obligations under Article 14 of that directive;
—     order the French Republic to pay the costs.                       —     order the European Parliament to pay the whole of the
                                                                              costs.
Pleas in law and main arguments
                                                                        Pleas in law and main arguments
The pleas in law and main arguments are similar to those
advanced in Case C-389/01 (2); although the prescribed time-            —     Error of law as regards the application of Article 29(1) of
limit (13 May 2000) has expired, France has not yet adopted                   the Rules of Procedure of the European Parliament. The
the majority of the provisions necessary in order to transpose                constitution of a parliamentary group united around a
the directive into national law.                                              common idea, solidarity consisting in the search for a
                                                                              balance between the rights of all MEP’s or parliamen-
                                                                              tarians, cannot be refused on the grounds of a lack of
(1) OJ L 180 of 9.7.1997, p. 22.
(2) OJ C 348 of 8.12.2001, p. 16.
                                                                              political affinity.
                                                                        —     Lack of legal basis on the review by the Parliament as to
                                                                              the conformity with Rule 29(1) of the ‘Rules of Procedure
                                                                              of the Groupe Technique des Députés Indépendants’ (TDI
                                                                              group); infringement of the principle of equal treatment
                                                                              and of the provisions of the rules: contrary to what is
Appeal brought on 17 December 2001 by the Front                               stated by the Court of First Instance, Rule 180 does
National against the judgment of 2 October 2001 deliver-                      not give the Parliament power to monitor the correct
ed by the Third Chamber of the Court of First Instance of                     application and interpretation of its Rules of Procedure;
the European Communities in Joined Cases T-222/99,                            that rule solely allows the European Parliament to refer a
T-327/99 and T-329/99 between J.C. Martinez and Ch. de                        matter to the competent committee for its opinion. The
Gaulle, the Front National, E. Bonino and Others and the                      fact of having adopted a joint position and of constituting
                      European Parliament                                     a group in order to ensure that each MEP may exercise
                                                                              his parliamentary mandate in full constitutes political
                        (Case C-486/01 P)                                     affinity for the purposes of Rule 29(1). Contrary to
                                                                              paragraph 122 of the judgment, different component
                                                                              parts of the TDI group lodged documents in association
                          (2002/C 84/82)                                      with each other on several occasions.
                                                                        —     Infringement of the principle of equal treatment with
An appeal against the judgment delivered on 2 October 2001                    regard to members of the TDI group: while the Court of
by the Third Chamber of the Court of First Instance of the                    First Instance, in paragraph 165, seems to agree that there
 ---pagebreak--- C 84/48               EN                     Official Journal of the European Communities                                        6.4.2002
     is discrimination between MEP’s who are members of a               European Communities in Joined Cases T-222/99, T-327/99
     political group and non-attached MEP’s, it refuses to              and T-329/99 between J.C. Martinez and Ch. de Gaulle, the
     accept that this unequal treatment is a ground for                 Front National, E. Bonino and Others and the European
     annulment of the contested measure. Even though an                 Parliament was brought before the Court of Justice of the
     exception of the illegality of Rule 29(1) of the rules has         European Communities on 17 December 2001 by J.C.
     not been raised by the applicants, it is nevertheless the          Martinez.
     case that the members of the TDI group suffer from
     discriminatory treatment in the light of the contested
     decision.
                                                                        The appellant claims that the Court should:
     The Court of First Instance has not drawn the correct
     inferences from the abandonment by the European
                                                                        —     declare admissible the appeal brought by Mr Martinez
     Parliament of its previous practice, nor from the unequal
                                                                              against the judgment of 2 October 2001 of the Court of
     treatment imposed on the TDI group in comparison
                                                                              First Instance of the European Communities,
     with the ‘Groupe pour l’Europe des démocraties et des
     différences’. Lastly, the Court of First Instance could not
     reject the observations evidencing the political affinity of       —     find that there has been an infringement of Community
     the TDI group, even though the facts relied on post-date                 law by the Court of First Instance,
     the contested measure.
—    Failure to observe the regulatory traditions common                —     quash the limbs and grounds of the contested judgment
     to the Member States: in refusing to draw the legal                      in whole or in part,
     consequences from comparative law and to find discrimi-
     nation by the measure at issue, the Court of First
                                                                        —     rule in accordance with the law, set aside the contested
     Instance fails to apply the rules and principles governing
                                                                              judgment, or, in the alternative, remit the case to the
     Community law.
                                                                              Court of First Instance of the European Communities
                                                                              pursuant to Article 54 of the Statute of the Court of
—    Infringement of essential procedural requirements: the                   Justice,
     scope of the contested measure is wider than that of
     interpretation of the rules.
                                                                        —     order the European Parliament to pay the whole of the
                                                                              costs.
—    Presumption of misuse of procedure: the Court of First
     Instance fails to appreciate the reality of the misuse of
     procedure which may be inferred from various examples
     of amendments to the rules, clearly showing that there is
     indeed a desire on the part of the European Parliament to
                                                                        Pleas in law and main arguments
     reduce systematically the rights of some of its members.
                                                                        Four pleas are identical to the first four pleas submitted in Case
                                                                        C-486/01 P (1).
                                                                        —     Infringement of the principle of democracy: the Court of
                                                                              First Instance wrongly rejected this plea on the basis of a
                                                                              failure to raise an objection of illegality against the
Appeal brought on 17 December 2001 by J.C. Martinez                           Parliament’s Rules of Procedure.
against the judgment of 2 October 2001 delivered by the
Third Chamber of the Court of First Instance of the
European Communities in Joined Cases T-222/99,                          —     Infringement of the principle of freedom of association:
T-327/99 and T-329/99 between J.C. Martinez and Ch. de                        the Court of First Instance does not show how the fact of
Gaulle, the Front National, E. Bonino and Others and the                      making the constitution of a group of MEP’s subject to a
                     European Parliament                                      requirement of political affinities constitutes a legitimate
                                                                              ground if this maintains discrimination between non-
                                                                              attached MEP’s and members of a constituted political
                       (Case C-488/01 P)                                      group.
                         (2002/C 84/83)
                                                                        (1) See page 47 of this Official Journal.
An appeal against the judgment delivered on 2 October 2001
by the Third Chamber of the Court of First Instance of the