title: Judgment of the Court (Fifth Chamber) of 15 May 2003 in Case C-282/00 (Reference for a preliminary ruling from the Tribunal Judicial da Comarca de Ponta Delgada): Refinarias de Açúcar Reunidas SA (RAR) v Sociedade de Indústrias Agricolas Açoreanas SA (Sinaga) (Sugar — Decision 91/315/EEC — Poseima Programme — Specific measures in favour of the Azores and Madeira — Regulation (EEC) No 1600/92 — Shipment to the rest of the Community of white sugar produced in the Azores from sugarbeet harvested there or from raw beet sugar imported exempt from levies and/or customs duties — Meaning of "processing of products" — Meaning of "traditional shipment to the rest of the Community")

text:
5.7.2003                  EN                         Official Journal of the European Union                                               C 158/3
                  JUDGMENT OF THE COURT                                      3.    Community law does not preclude the shipment to mainland
                                                                                Portugal of white sugar produced in the Azores from sugarbeet
                                                                                harvested in the Azores and which receives the Community aid
                            (Fifth Chamber)
                                                                                provided for in Article 25 of Regulation No 1600/92 up to a
                                                                                limit of 10 000 tonnes of production per year.
                            of 15 May 2003
                                                                             4.    Community law does not preclude the shipment to mainland
in Case C-282/00 (Reference for a preliminary ruling from                          Portugal of white sugar produced in the Azores from raw beet
the Tribunal Judicial da Comarca de Ponta Delgada):                                sugar imported under the specific supply arrangements provided
Refinarias de Açúcar Reunidas SA (RAR) v Sociedade de                              for under Title I of Regulation No 1600/92, provided that it
        Indústrias Agricolas Açoreanas SA (Sinaga) (1)                             corresponds to traditional shipments within the meaning of the
                                                                                second paragraph of Article 8 of that regulation.
(Sugar — Decision 91/315/EEC — Poseima Programme —
Specific measures in favour of the Azores and Madeira —                      (1 ) OJ C 247 of 26.8.2000.
Regulation (EEC) No 1600/92 — Shipment to the rest of the
Community of white sugar produced in the Azores from
sugarbeet harvested there or from raw beet sugar imported
exempt from levies and/or customs duties — Meaning of
‘processing of products’ — Meaning of ‘traditional shipment
                  to the rest of the Community’)
                            (2003/C 158/03)                                                   JUDGMENT OF THE COURT
                   (Language of the case: Portuguese)                                                   of 13 May 2003
(Provisional translation; the definitive translation will be published       in Case C-463/00: Commission of the European Communi-
                     in the European Court Reports)                                             ties v Kingdom of Spain (1)
                                                                             (Failure by a Member State to fulfil its obligations —
In Case C-282/00: Reference to the Court under Article 234                   Articles 43 EC and 56 EC — System of administrative
                                                                                approval relating to privatised undertakings)
EC by the Tribunal Judicial da Comarca de Ponta Delgada
(Portugal) for a preliminary ruling in the proceedings pending
before that court between Refinarias de Açúcar Reunidas SA                                              (2003/C 158/04)
(RAR) and Sociedade de Indústrias Agricolas Açoreanas SA
(Sinaga), on the interpretation of Council Regulation (EEC)
No 1600/92 of 15 June 1992 concerning specific measures                                         (Language of the case: Spanish)
for the Azores and Madeira relating to certain agricultural
products (OJ 1992 L 173, p. 1), the Court (Fifth Chamber),
                                                                             (Provisional translation; the definitive translation will be published
composed of: M. Wathelet, President of the Chamber,                                              in the European Court Reports)
C.W.A. Timmermans, D.A.O. Edward, P. Jann and S. von Bahr
(Rapporteur), Judges; J. Mischo, Advocate General; H.A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 15 May 2003, in which it has ruled:
                                                                             In Case C-463/00, Commission of the European Communities
                                                                             (Agents: M. Patakia and M. Desantes, and, subsequently,
1.    The refining of raw beet sugar into white sugar must be                M. Patakia and G. Valero Jordana) v Kingdom of Spain (Agent:
      considered to be the processing of a product within the meaning        N. Díaz Abad), supported by United Kingdom of Great Britain
      of the second paragraph of Article 8 of Council Regulation             and Northern Ireland (Agent: R. Magrill, assisted by D. Wyatt,
      (EEC) No 1600/92 of 15 June 1992 concerning specific                   QC, and J. Crow, barrister): Application for a declaration that
      measures for the Azores and Madeira relating to certain                the provisions of Article 2 and Article 3(1) and (2), together
      agricultural products.                                                 with Article 1, of Ley 5/1995 de régimen jurídico de enajena-
                                                                             ción de participaciones públicas en determinadas empresas
2.    Shipments which, at the time of the entry into force of                (Law 5/1995 of 23 March 1995 on the legal arrangements for
      Regulation No 1600/92 on 1 July 1992, were ongoing,                    disposal of public shareholdings in certain undertakings (BOE
      regular and significant are traditional shipments to the rest of       No 72 of 25 March 1995, p. 9366) and the implementing
      the Community within the meaning of the second paragraph of            royal decrees enacted under Article 4 of Law 5/1995 (Royal
      Article 8 of Regulation No 1600/92. It is for the referring            Decree No 3/1996 of 15 January 1996 concerning Repsol SA
      court to assess whether that was the case for the shipments of         (BOE No 14 of 16 January 1996, p. 1133), Royal Decree No 8/
      sugar from the Azores to mainland Portugal and to Madeira              1997 of 10 January 1997 concerning Telefónica de España SA
      between 1907 and 1992 referred to in the table set out in the          and Telefónica Servicios Móviles SA (BOE No 10 of 11 January
      order for reference.                                                   1997, p. 907), Royal Decree No 40/1998 of 16 January 1998


title: Action brought on 15 February 1996 by the Federal Republic of Germany against the Commission of the European Communities (Case C-46/96)

text:
No C 108 /4              EN                   Official Journal of the European Communities                                      13 . 4 . 96
right to a fair hearing, the right of each party to be heard, the        impervious merely in theory, or impervious in theory and in
principle of the equality of both parties before the court and           practice ?
the obligation to give an adequate statement of reasons . In
any event, the Court of First Instance failed :                          (') OJ 1985 L 15 , p . 16 .
— to allow the appellants access to the data on the basis of
       which the Commission determined the basic exchange
       rates used in order to fix the weightings referred to in the      Reference for a preliminary ruling from the Tribunale Civile
       Regulations at issue and, consequently, to enable the             e Penale di Venezia by order of that court of 2 February
       appellants to submit observations in that regard ,                         1996 in the case of Immobiliare S.I.F. SpA v.
                                                                                Amministrazione delle Finanze dello Stato
— to make an accurate and impartial examination of all the
       information relevant to the cases,                                                           ( Case C-42/ 96 )
                                                                                ( 96/C 108/07
— to take into account many of the arguments adduced by
       the appellants,                                                   Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Tribunale Civile
— to give reasons — or, at any rate, to give adequate                    e Penale di Venezia ( Civil and Criminal Court, Venice ) of
       reasons — for its own decision, which is based on                 2 February 1996 , which was received at the Court Registry
       assertions which not only disregard the points made by            on 13 February 1 996 , for a preliminary ruling in the case of
       the appellants, but are also, in more than one instance,          Immobiliare S.I. F. SpA v. Amministrazione delle Finanze
       tautologous and/or subjective .                                   dello Stato, in which the Court is requested to :
The Court of First Instance has not only failed to comply                'give a ruling on the question concerning the application of
with obligations specifically incumbent upon it, but has                 Articles 4, 7 and 10 of Council Directive 69/335/EEC of
also, by making such a ruling, enabled a factual situation to            17 July 1969 (^ concerning indirect taxes on the raising of
persist which is contrary to Community law.                              capital, as amended by Council Directive 73/80/EEC of
                                                                         9 April 1973 ( 2 ) in the case brought by the plaintiff and on
(') OJ No L 383 of 29 . 12 . 1992 , p . 1 .                              whether the application of those provisions precludes the
( 2 ) Ibid ., p . 9 .                                                    charging of any other taxation, in particular the taxes
( 3 ) Ibid ., p . 11 .                                                   charged by the Italian Registry Office, including Invim
                                                                         (Imposta communale sull'incremento di valore dei beni
                                                                         immobili — municipal tax on the increase in value of
                                                                         immovables ); if so, is the applicable rate 2 % or the reduced
                                                                         rate ?'
Reference for a preliminary ruling from the Landgericht
Hamburg by order of that court of 4 October 1995 in the                  (') OJ, English Special Edition 1969 ( II ), p . 412 .
       case of V.A.G. Hàndlerbeirat e . V. v. SYD-Consult                ( 2 ) OJ 1973 L 103 , p . 15 .
                           ( Case C-41 /96 )
                             ( 96/C 108 /06 )
                                                                         Action brought on 15 February 1996 by the Federal
Reference has been made to the Court of Justice of the                   Republic of Germany against the Commission of the
European Communities by an order of the Landgericht                                           European Communities
( Regional Court) Hamburg of 4 October 1995 , which was                                               Case C-46/96 )
received at the Court Registry on 13 February 1996 , for a
preliminary ruling in the case of V.A.G. Hàndlerbeirat e.V.                                           ( 96/C 108/08 )
v . SYD-Consult on the following question:
                                                                         An action against the Commission of the European
                                                                         Communities was brought before the Court of Justice of the
in the light of the judgment of the Court of Justice of
                                                                         European Communities on 15 February 1 996 by the Federal
 13 January 1994 in Case C-376/92 Metro SB-Grotëmàrkte
v. Cartier, is it compatible with Community law, in
                                                                         Republic of Germany, represented by Ernst Rôder,
                                                                         Ministerialrat in the Federal Ministry of Economic
particular with the principle of the unrestricted and uniform            Affairs .
application of Community law, if German national law
applies in such a way that proceedings for an injunction                 The applicant claims that the Court should :
restraining the distribution of products covered by a
selective distribution system exempted from application of               — annul Decision (K 95 ) 3319 final of the Commission of
Article 85 ( 1 ) by a block exemption of the Commission of                     29 November 1995 concerning fiscal aid in the field of
the European Communities (') may be brought against                            depreciation favouring German undertakings ( J ),
outsiders who obtain those products outside such a selective
distribution system only if — in addition to satisfying the              — order the defendant to pay the costs .
 further requirements of Paragraph 1 of the Gesetz gegen den             Pleas in law and main arguments adduced in support:
 unlauteren Wettbewerb ( Law against Unfair Competition,
UWG ) — the selective distribution system is impervious                  Infringement of the EC Treaty ( the constituent criteria
 ( liickenlos ), specific reference being made to the alternative        laid down in Article 92 ( 1 ) of the EC Treaty are not
 of the selective distribution system being required to be               fulfilled ):
 ---pagebreak--- 13 . 4 . 96             | EN                   Official Journal of the European Communities                                  No C 108/5
— the disputed possibility for depreciation, afforded by                  Appeal brought on 19 February 1996 by Windpark
       Paragraph 82 ( f) of the Einkommensteuer-Durcb                    Groothusen GmbH & Co. Betriebs KG against the
       fiihrungsverordnung ( income tax implementation                    judgment delivered on 13 December 1995 by the First
       regulation ), is consistent with the inherent logic of the         Chamber of the Court of First Instance of the European
       German tax system, and does not diverge fundamentally                   Communities in Case T-109/94 between Windpark
       from normal ( linear, degressive ) depreciation methods .                  Groothusen GmbH & Co . Betriebs KG and the
       In so far as the Commission considers that the tax                           Commission of the European Communities
       systems distort the conditions of competition in the                                       ( Case C-48/96 P )
       common market, the relevant legislative provisions of
       the Member States should have been assimilated in                                             ( 96/C 108/09 )
       accordance with Article 101 of the EC Treaty. In the
       final analysis, singling out individual elements of tax law        An appeal against the judgment delivered on 13 December
       undermines the national tax system and amounts to a                1995 by the First Chamber of the Court of First Instance of
       disregard of the national fiscal sovereignty retained by           the European Communities in Case T-109/94 between
       the Member States,                                                 Windpark Groothusen GmbH & Co . Betriebs KG and the
                                                                          Commission of the European Communities (') was brought
— even if it were permissible to single out that individual               before the Court of Justice of the European Communities on
       national tax provision from the non-harmonized rules               19 February 1996 by Windpark Groothusen GmbH & Co .
       on the taxation of undertakings, the Commission should             Betriebs KG, of Groothusen-Krummhorn ( Germany )
       not have classified Paragraph 82 ( f) of the Ein                  represented by Detlef Schumacher and Benno Grunewald,
       kommensteuer-Durcbfuhrungsverordnung as aid . The                  Rechtsanwàlte, Heidelberger StraEe 7, D-28203 Bremen .
       possibility for depreciation afforded by Paragraph 82 ( f)
       of the Einkommensteuer-Durchfiihrungsverordnung
       does not give rise to any transfer at the State's expense ( in     The appellant claims that the Court should :
       the form of a shortfall in tax revenue ); the fiscal effects of
       degressive depreciation — to which the Commission                  1 , set aside the contested judgment of 13 December
       does not object, and which is feasible in all sectors - and              1995 ;
       of depreciation pursuant to Paragraph 82 ( f) of the
       Einkommensteuer-Durchfubrungsverordnung are on                     2 , annul the decisions of the Commission refusing to grant
       the whole equivalent. Depreciation pursuant to
                                                                               the appellant aid pursuant to the Thermie Regulation
       Paragraph 82 ( f) of the Einkommensteuer-Durch                          ( notified by communication of 13 January 1994 from
       fubrungsverordnung does not increase the volume of                       the Energy Directorate-General supplementing the
       depreciation applied to the assets of undertakings; it
                                                                                communication of 5 August 1993 from the Energy
       does not result, over the service life of an aircraft, or the
                                                                                Directorate-General );
       period during which it is retained by the undertaking, in
       any reduction of the tax due , nor does it afford the
        undertaking — in relation to the service life or period of         3 , order the respondent to adopt a decision in favour of the
        retention of the asset — any interest advantage arising                 appellant, with due regard to the interpretation of the
        from the depreciation .                                                 law undertaken by the Court of Justice, providing for
                                                                                the grant of aid in a sum not exceeding ECU
        Even if it were in fact the case that aid to a specific sector          918 028 ;
        is involved, there would in any event be no question of
        any distortion of competition, since the German rules on           4 , order the respondent to pay the costs of the proceedings
        depreciation are less favourable than those applied in                  at first instance and of the appeal .
        numerous other Member States of the Community, and
        Germany has, in comparative terms , one of the highest
        tax burdens,                                                       Pleas in law and main arguments adduced in support:
— the contested decision does not contain a sufficient                     — infringement of the right to full legal protection,
        statement of reasons; in particular, the Commission does
        not attach sufficient weight to the results of the                 — infringement of the fifth paragraph of Article 173 of the
        investigations submitted to it, despite the fact that one of            EC Treaty: that provision does not require a person who
        them was commissioned by the defendant itself,                          is directly and individually concerned by a decision to try
                                                                                to ascertain the nature of the decision and the reasons on
— ( in the alternative ) Article 92 ( 3 ) (c ) of the EC Treaty has             which it is based . On the contrary, the legal aspects are
        wrongly been left out of consideration . The special                    complied with where , at the applicant's request, the
        depreciation at issue promotes the protection of the                     decision and the reasons on which it is based are
        environment ( acquisition of new aircraft which                         communicated,
        experience has shown to be quieter and more economic
        to use ).
                                                                           — infringement of the rule requiring a statement of reasons
                                                                                to be given,
 ( 1 ) Only civil aviation undertakings are involved .
                                                                           — infringement of the fundamental legal rules concerning
                                                                                the right to a fair hearing,


title: Case T-27/04: Action brought on 27 January 2004 by the El Corte Inglés S.A. against the Office for Harmonisation in the Internal Market

text:
20.3.2004               EN                         Official Journal of the European Union                                               C 71/41
—      declares, in Article 3, that certain aid that Spain intends         The applicant claims that the Court should:
       to grant to the applicant to cover exceptional restructur-
       ing costs in 2001 are incompatible with Article 7 of                —      Annul the decision of the appointing authority of
       Council Regulation (EC) No 1407/2002 of 23 July 2002                       20 December 2002 confirming the applicant’s initial
       on State aid to the coal industry (4);                                     classification in Grade A 7;
—      requires Spain, in Article 4, to recover, among other               —      Annul, to the extent necessary, the decision of the
       amounts, the aid mentioned in Article 1.                                   appointing authority of 9 October 2003 rejecting the
                                                                                applicant’s complaint;
In support of its claims, the applicant alleges:                           —      Order the defendant to pay all of the costs of the
                                                                                proceedings.
—      lack of competence on the part of the Commission to
       adopt the decision challenged, following the expiry of the
       ECSC Treaty;
                                                                           Pleas in law and main arguments
—      the inappropriateness of the procedure followed in
       adopting the decision challenged, the Commission having
       failed to previously to revoke Articles 1, 2 and 5 of               Following the Court’s judgment in Case T-17/95 (1), the
       Decision 2002/827/ECSC;                                             Commission adopted an amendment of the rules on the
                                                                           criteria applicable to appointment in grade and classification
                                                                           in step on recruitment. By the contested decision, it confirmed
—      infringement of the principle of legal certainty and                the applicant’s classification in Grade A 7 at the date of his
       cumulative procedural errors, inasmuch as Article 1 of              recruitment and for that reason rejected his request to be
       the decision challenged treats as unlawful and incompat-            reclassified.
       ible with the common market certain aid authorised by
       Decision 98/637/ECSC, even though that aid had already
       been held to be justified in Decision 2002/827/ECSC.                In support of his action, the applicant invokes the lack of
                                                                           reasoning in the contested decision, a manifest error of
—      a manifest error of assessment of the facts, inasmuch as            appraisal and alleged discrimination between the applicant
       the Commission failed to take the view that certain aid             himself, whose request to be reclassified was rejected, and
       granted to the applicant to cover exceptional restructur-           other officials who, having professional experience as long as
       ing costs was justified.                                            his own, were able to secure reclassification.
(1 ) T-291/02 González y Díez v Commission (OJ 2002 C 289, p. 33).         (1) Judgment of the Court of First Instance of the European Communi-
(2 ) OJ 1998 L 303, p. 57                                                      ties of 5 October 1995; published in OJ 1995 C 315 of
(3 ) OJ 2001 L 58, p. 24                                                       25.11.1995, p. 14.
(4 ) OJ 2002 L 205, p. 1.
                                                                           Action brought on 27 January 2004 by the El Corte Inglés
Action brought on 20 January 2004 by Jacques Verborgh                      S.A. against the Office for Harmonisation in the Internal
   against the Commission of the European Communities                                                     Market
                                                                                (Case T-27/04)
                          (Case T-26/04)
                                                                                (2004/C 71/72)
                          (2004/C 71/71)
                                                                                (Language of the case: Spanish)
                    (Language of the case: French)
                                                                           An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                  Market (OHIM) was brought before the Court of First Instance
ties was brought before the Court of First Instance of the                 of the European Communities on 27 January 2004 by El Corte
European Communities on 20 January 2004 by Jacques                         Inglés, established in Madrid, represented by lawyers J.-L. Rivas
Verborgh, residing in Aalter (Belgium), represented by Nicolas             Zurdo and E. López Leiva, members of the Ilustre Colegio de
Lhoëst, lawyer, with an address for service in Luxembourg.                 Madrid.
 ---pagebreak--- C 71/42                EN                       Official Journal of the European Union                                         20.3.2004
The applicant claims that the Court of First Instance should:           Action brought on 26 January 2004 by Castellblanch,
                                                                        S.A., against the Office for Harmonisation in the Internal
                                                                                Market (Trade Marks and Designs) (OHIM)
—     annul the decision by OHIM (Second Board of Appeal) of
      10 November 2003 in case R 0285/2002-2, which by
      dismissing the applicant’s appeal gives grounds for a                                      (Case T-29/04)
      future right to Community trade mark No 1.155.985,
      ‘THE OBSERVER’, in Classes 18, 25, 28, 35 and 41;
                                                                                (2004/C 71/73)
—     refuse registration to Community mark No 1.155.985
      ‘THE OBSERVER’ in Classes 18, 25, 28, 35 and 41;                  (Language of the case: to be determined pursuant to article 131(2)
                                                                        of the Rules of Procedure — language in which the case was
                                                                                submitted: English)
—     order the party or parties opposing this action to pay the
      costs.
                                                                        An action against the Office for Harmonisation in the Internal
                                                                        Market (Trade Marks and Designs) (OHIM) was brought before
                                                                        the Court of First Instance of the European Communities on
                                                                        26 January 2004 by Castellblanch, S.A., Sant Sadurni d’Anoia,
Pleas in law and main arguments                                         Spain, represented by Mr F. de Visscher, Mr E. Cornu, Mr E. De
                                                                        Gryse and Ms D. Moreau, lawyers. Champagne Louis Roederer
                                                                        S.A. was also a party to the proceedings before the Board of
                                                                        Appeal.
Applicant for the Com-        Guardian Newspaper Limited
munity trade mark:
                                                                        The applicant claims that the Court should:
Community trade mark          Word mark ‘THE OBSERVER’ —
applied for:                  Application No 1.155.985, for             —     annul the decision of the Second Board of Appeal of the
                              goods and services in Classes 9,                Office for Harmonisation in the Internal Market of
                              16, 18, 25, 28, 35, 36, 38 and 41               17 November 2003;
Proprietor of the oppos-      Applicant                                 —     Order the OHIM to pay the costs.
ing trade mark or sign:
Opposing trade mark or        Spanish       figurative      mark
sign:                         (No 953.859) and word mark                Pleas in law and main arguments
                              (No 2.116.030) for all goods and
                              services in Classes 18, 25, 28, 35
                              and 41                                    Applicant for the Com-        Castellblanch S.A.
                                                                        munity trade mark:
Decision of the Oppo-         Dismissal of the opposition
                                                                        Community trade mark          Figurative mark ‘CRISTAL CAS-
sition Division:
                                                                        sought:                       TELLBLANCH’ for goods in
                                                                                class 33 (wine)
Decision of the Board of      Dismissal of the appeal
Appeal:                                                                 Proprietor of mark or         CHAMPAGNE LOUIS ROEDE-
                                                                        sign cited in the oppo-       RER, S.A.
                                                                        sition proceedings:
Pleas in law:                 —    Sufficient use of the two
                                   marks which form the basis           Mark or sign cited in         National word mark ‘CRISTAL’
                                   for the opposition                   opposition:                   for goods in class 33 (champagne,
                              —    Incorrect application of                                           sparkling wines)
                                   Article 8(1)(a) and (b) of
                                   Regulation (EC) No 40/94.            Decision of the Oppo-         Registration refused
                                                                        sition Division:
                                                                        Decision of the Board of      Appeal rejected
                                                                        Appeal:


title: Case C-325/11: Judgment of the Court (First Chamber) of 19 December 2012 (request for a preliminary ruling from the Sąd Rejonowy w Koszalinie — Poland) — Krystyna Alder, Ewald Alder v Sabina Orłowska, Czesław Orłowski (Regulation (EC) No 1393/2007 — Service of documents — Party domiciled in the territory of another Member State — Representative domiciled in national territory — None — Procedural documents placed in the case file — Presumption of knowledge)

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/7

         Judgment of the Court (First Chamber) of 19 December 2012 (request for a preliminary ruling from the Sąd Rejonowy w Koszalinie — Poland) — Krystyna Alder, Ewald Alder v Sabina Orłowska, Czesław Orłowski
   (Case C-325/11) (1)

   (Regulation (EC) No 1393/2007 - Service of documents - Party domiciled in the territory of another Member State - Representative domiciled in national territory - None - Procedural documents placed in the case file - Presumption of knowledge)
   2013/C 46/12
   Language of the case: Polish

      Referring court

   Sąd Rejonowy w Koszalinie

      Parties to the main proceedings

      Applicants: Krystyna Alder, Ewald Alder

      Defendants: Sabina Orłowska, Czesław Orłowski

      Re:

   Request for a preliminary ruling — Sąd Rejonowy w Koszalinie (Poland) — Interpretation of Article 18 TFEU and of Article 1(1) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ L 324 of 10 December 2007, p. 79) — National legislation which establishes, for a party who is resident in another Member State and has not appointed a representative resident in national territory, a presumption that that party is aware of procedural documents which have been placed in the case file

      Operative part of the judgment

   Article 1(1) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) and repealing Council Regulation (EC) No 1348/2000 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which provides that judicial documents addressed to a party whose place of residence or habitual abode is in another Member State are placed in the case file, and deemed to have been effectively served, if that party has failed to appoint a representative who is authorised to accept service and is resident in the first Member State, in which the judicial proceedings are taking place.

      (1)  OJ C 269, 10.9.2011.


title: Judgment of the Court of First Instance of 17 January 2001 in Case T-14/99: Marie-Jeanne Kraus v Commission of the European Communities (Officials — Household allowance — Recovery of undue payment — Manifest irregularity of the payment)

text:
5.5.2001               EN                     Official Journal of the European Communities                                     C 134/17
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 17 January 2001
                       of 31 January 2001
                                                                         in Case T-14/99: Marie-Jeanne Kraus v Commission of the
in Case T-156/98: RJB Mining plc v Commission of the                                        European Communities (1)
                   European Communities (1)
                                                                         (Officials — Household allowance — Recovery of undue
                                                                               payment — Manifest irregularity of the payment)
(ECSC Treaty — Concentration between undertakings —
                    Admissibility — State aid)                                                     (2001/C 134/36)
                         (2001/C 134/35)                                                    (Language of the case: French)
                                                                         In Case T-14/99: Marie-Jeanne Kraus, an official of the
                   (Language of the case: English)                       Commission of the European Communities, residing in Luxem-
                                                                         bourg, represented by L. Thielen, of the Luxembourg Bar, with
                                                                         an address for service in Luxembourg at the latter’s Chambers,
In Case T-156/98: RJB Mining plc, having its registered office           10 Rue Willy Goergen, v Commission of the European
at Harworth, United Kingdom, represented by M. Brealey,                  Communities (Agents: C. Berardis-Kayser, F. Clotuche-Duvieu-
Barrister, and J. Lawrence, Solicitor, with an address for service       sart and B. Wägenbaur) — application for annulment of the
in Luxembourg at the Chambers of Arendt and Medernach,                   Commission’s decision of 19 October 1998 requiring the
8-10 Rue Mathias Hardt, against Commission of the European               applicant to reimburse the household allowance received —
Communities (Agents: K. Leivo and R. Lyal) supported by RAG              the Court of First Instance (Fourth Chamber), composed of:
Aktiengesellschaft, established in Essen (Germany), represented          P. Mengozzi, President, and V. Tiili and R.M. Moura Ramos,
by M. Hansen, Denmark, and S. Völcker, Rechtsanwalt, Berlin,             Judges; J. Palacio González, Administrator, for the Registrar,
with an address for service in Luxembourg at the Chambers of             has given a judgment on 17 January 2001, in which it:
Loesch and Wolter, 11 Rue Goethe, and by Federal Republic
of Germany, (Agents: W.-D. Plessing and C.-D. Quassowski)                1.    Dismisses the action;
— application for annulment of the Commission decision of
29 July 1998 authorising the acquisition by RAG Aktienge-                2.    Orders the parties to bear their own costs.
sellschaft of control of Saarbergwerke AG and Preussag
Anthrazit GmbH (Case No IV/ECSC.1252-RAG/Saarbergwerke                   (1) OJ C 100 of 10.4.1999.
AG/Preussag Anthrazit) — the Court of First Instance (First
Chamber), composed of: B. Vesterdorf, President, M. Vilaras
and N.J. Forwood, Judges; H. Jung, Registrar, has given a
judgment on 31 January 2001, in which it:
1.    Annuls the Commission decision of 29 July 1998 authorising
      the acquisition of control by RAG Aktiengesellschaft of                JUDGMENT OF THE COURT OF FIRST INSTANCE
      Saarbergwerke AG and Preussag Anthrazit GmbH (Case
      No IV/ECSC.1252 — RAG/Saarbergwerke AG/Preussag                                           of 16 January 2001
      Anthrazit);
                                                                         in Joined Cases T-97/99 and T-99/99: Michel Chamier and
2.    Orders the Commission to bear its own costs and to pay the              Eoghan O’Hannrachain v European Parliament (1)
      costs incurred by the applicant other than costs occasioned to
      the applicant by the interventions of RAG Aktiengesellschaft       (Officials — Grade A 1 post — Article 29(2) of the Staff
      and the Federal Republic of Germany;                               Regulations — Notice of vacancy — Manifest error of
                                                                                assessment — Misuse of powers)
3.    Orders RAG Aktiengesellschaft and the Federal Republic of
      Germany to bear their own costs.                                                             (2001/C 134/37)
                                                                                (Language of the case: French)
(1) OJ C 358 of 21.11.98.
                                                                         In Joined Cases T-97/99 and T-99/99: Michel Chamier, an
                                                                         official of the European Parliament, residing at Reckange-sur-
                                                                         Mess (Luxembourg), and Eoghan O’Hannrachain, an official of
                                                                         the European Parliament, residing at Cents (Luxembourg),
                                                                         represented by G. Vandersanden and L. Levi, of the Brussels


title: Case T-750/16: Action brought on 28 October 2016 — FV v Council

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/42

         Action brought on 28 October 2016 — FV v Council
   (Case T-750/16)
   (2017/C 006/52)
   Language of the case: French

      Parties

      Applicant: FV (Rhode-St-Genèse, Belgium) (represented by: L. Levi and A. Tymen, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the present action to be admissible and well-founded;

         consequently:

               —

               annul the decision of 8 December 2015, taken on the basis of Article 42c of the Staff Regulations;

               —

               annul, as necessary, the decision of 19 July 2016 rejecting the applicant's complaint of 8 March 2016;

               —

               order the defendant to pay damages of EUR 151 101 subject to increase, as compensation for the pecuniary damage suffered by the applicant;

               —

               order the defendant to pay damages, set ex aequo et bono at EUR 70 000, as compensation for the non-pecuniary damage suffered by the applicant;

               —

               order the defendant to pay all of the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a plea of illegality directed against Article 42c of the Staff Regulations of Officials of the European Union, infringement of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, infringement of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16), and infringement of Article 1d of the Staff Regulations.

               2.

               Second plea in law, alleging infringement of Article 42c of the Staff Regulations, infringement of the Communication to Staff No 71/15 to provide information on the implementation of Article 42c of the Staff Regulations, and manifest inaccuracies and irregularities in fact and in law of the grounds which would have led to the applicant’s compulsory leave;

               3.

               Third plea in law, alleging infringement of the right to be heard and of the rights of the defence;

               4.

               Fourth plea in law, alleging infringement of the duty of care;

               5.

               Fifth plea in law, alleging misuse of powers.


title: Case C-63/16 P: Appeal brought on 4 February 2016 by Actega Terra GmbH against the order of the General Court (Seventh Chamber) delivered on 23 November 2015 in Case T-766/14 Actega Terra GmbH v European Union Intellectual Property Office

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/15

         Appeal brought on 4 February 2016 by Actega Terra GmbH against the order of the General Court (Seventh Chamber) delivered on 23 November 2015 in Case T-766/14 Actega Terra GmbH v European Union Intellectual Property Office

   (Case C-63/16 P)
   (2016/C 260/19)
   Language of the case: German

      Parties

      Appellant: Actega Terra GmbH (represented by: C. Onken, lawyer)

      Other party to the proceedings: European Union Intellectual Property Office, Heidelberger Druckmaschinen
   By order of 24 May 2016, the Court of Justice of the European Union (Seventh Chamber) dismissed the appeal and ordered the appellant to bear its own costs.


title: Judgment of the Court (Third Chamber) of 23 November 2000 in Case C-320/99: Commission of the European Communities v French Republic (Failure by a Member State to fulfil its obligations — Directive 97/68/EC — Non-road mobile machinery — Emission of gaseous and particulate pollutants)

text:
10.3.2001                 EN                      Official Journal of the European Communities                                                C 79/3
for the transmission of television signals (OJ 1995 L 281,                   communicating those provisions to the Commission, the
p. 51) or by not taking the measures necessary to comply                     French Republic has failed to fulfil its obligations under
therewith, the French Republic has failed to fulfil its obligations          that directive — the Court (Third Chamber), composed of:
under that directive — the Court (Third Chamber), composed                   C. Gulmann (Rapporteur), President of the Chamber, J.-P.
of: C. Gulmann (Rapporteur), President of the Chamber, J.-P.                 Puissochet and F. Macken, Judges; A. Saggio, Advocate General;
Puissochet and F. Macken, Judges; A. Saggio, Advocate General;               R. Grass, Registrar, has given a judgment on 23 November
R. Grass, Registrar, has given a judgment on 23 November                     2000, in which it:
2000, in which it:
                                                                             1.    Declares that, by failing to adopt within the prescribed period
1.    Declares that, by failing to adopt within the prescribed period              the laws, regulations and administrative provisions necessary to
      the laws, regulations and administrative provisions necessary to             comply with Directive 97/68/EC of the European Parliament
      comply with Directive 95/47/EC of the European Parliament                    and of the Council of 16 December 1997 on the approximation
      and of the Council of 24 October 1995 on the use of standards                of the laws of the Member States relating to measures against
      for the transmission of television signals, the French Republic              the emission of gaseous and particulate pollutants from
      has failed to fulfil its obligations under that directive;                   internal combustion engines to be installed in non-road mobile
                                                                                machinery, the French Republic has failed to fulfil its obligations
2.    Orders the French Republic to pay the costs.                                 under that directive;
                                                                             2.    Orders the French Republic to pay the costs.
(1) OJ C 299 of 16.10.1999.
                                                                             (1) OJ C 299 of 16.10.1999.
                  JUDGMENT OF THE COURT
                                                                                JUDGMENT OF THE COURT
                           (Third Chamber)
                                                                                (Fifth Chamber)
                        of 23 November 2000                                                        of 30 November 2000
in Case C-320/99: Commission of the European Communi-                        in Case C-436/98 (reference for a preliminary ruling from
                      ties v French Republic (1)                             the Supreme Court): HMIL Ltd v Minister for Agriculture,
                                                                                Food and Forestry (1)
(Failure by a Member State to fulfil its obligations —
Directive 97/68/EC — Non-road mobile machinery —                             (Agriculture — Common organisation of the markets —
        Emission of gaseous and particulate pollutants)                      Special export refunds and private storage aid for certain
                                                                                pieces of beef)
                             (2001/C 79/05)
                                                                                (2001/C 79/06)
                     (Language of the case: French)
                                                                                (Language of the case: English)
                                                                             In Case C-436/98: reference to the Court under Article 177 of
(Provisional translation; the definitive translation will be published
                                                                             the EC Treaty (now Article 234 EC) from the Supreme Court
                    in the European Court Reports)
                                                                             (Ireland), for a preliminary ruling in the proceedings pending
                                                                             before that court between HMIL Ltd and Minister for Agri-
In Case C-320/99: Commission of the European Communities                     culture, Food and Forestry — on the interpretation of Com-
(Agent: M. Nolin) v French Republic (Agents: K. Rispal-                      mission Regulation (EEC) No 1964/82 of 20 July 1982 laying
Bellanger and G. Taillandier) — application for a declaration                down the conditions for granting special export refunds on
that, by not adopting within the prescribed period the laws,                 certain cuts of boned meat of bovine animals (OJ 1982 L 212,
regulations and administrative provisions necessary to comply                p. 48, and the corrigendum at OJ 1982 L 273, p. 43), as
with Directive 97/68/EC of the European Parliament and of                    amended by Commission Regulation (EEC) No 3169/87 of
the Council of 16 December 1997 on the approximation of                      23 October 1987 amending Regulations (EEC) No 32/82,
the laws of the Member States relating to measures against the               (EEC) No 1964/82 and (EEC) No 74/84 in the matter of
emission of gaseous and particulate pollutants from internal                 customs export formalities for certain beef on which special
combustion engines to be installed in non-road mobile                        refunds are granted (OJ 1987 L 301, p. 21), and of Commission
machinery (OJ 1998 L 59, p. 1) or, in any event, by not                      Regulation (EEC) No 2675/88 of 29 August 1988 providing


title: Case C-274/08: Action brought on 25 June 2008 — Commission of the European Communities v Kingdom of Sweden

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/7

         Action brought on 25 June 2008 — Commission of the European Communities v Kingdom of Sweden
   (Case C-274/08)
   (2008/C 236/10)
   Language of the case: Swedish
   Parties

      Applicant: Commission of the European Communities (represented by: B. Schima and P. Dejmek, acting as Agents)

      Defendant: Kingdom of Sweden
   Form of order sought

               —

               Declare that, by failing to adopt appropriate measures to ensure that the requirement for a functional division between distribution and production interests in a vertically integrated undertaking in accordance with Article 15(2)(b) and (c) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (1) and by failing to make the regulatory authorities responsible for approving, in advance, at least the methodologies used to calculate or establish the terms and conditions for access to national networks, including transmission and distribution tariffs in accordance with Article 23(2)(a) thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

               —

               order the Kingdom of Sweden to pay the costs.

         Pleas in law and main arguments
   In support of its contention that Article 15(2)(b) and (c) has been implemented in Swedish law, Sweden has referred to various provisions in the Law on electricity (ellagen), from which, inter alia, it is apparent that network activity (distribution activity) is to be dealt with separately in the accounts and that the network undertaking's auditor is particularly to audit those separate accounts. Further, Sweden has submitted that costs which a network undertaking has in common with another undertaking are to be entered in the accounts only to the extent that they concern the network undertaking. In addition, the network undertaking is required to establish a supervisory plan and ensure that it is followed.
   Nevertheless, the Commission takes the view that the clear requirement for organisation of the management structure under Article 15(2)(b) and (c) cannot be regarded as satisfied by general rules concerning, for example, separate accounting or generally applicable sanctions.
   According to Sweden, the requirement for a functional division is also satisfied by the general company law provisions in the Law on limited companies (aktiebolaglagen), in accordance with which parent companies and subsidiaries are separate legal persons and legal entities.
   The Commission takes the view that the parent company, in its capacity as majority shareholder, has a decisive influence over its subsidiary or subsidiaries, since certain important questions are reserved for decision by the shareholders. A distribution undertaking and its board of directors can thus never be independent of its majority shareholders on the basis only of general company law. Nor does the fact that an integrated undertaking complies with the provisions of the aktiebolaglagen concerning auditing and restrictions on the transfer of assets mean, in the Commission's view, that the requirement for an independent management structure is satisfied. According to the Commission, correct implementation of Article 15(2)(b) and (c) in national law presupposes that there are binding rules which clearly reflect the conditions laid down in those provisions, that is to say, a guarantee that the management of a distribution undertaking can act independently of the integrated electricity undertaking as regards distribution and the means necessary to guarantee the operation, maintenance and development of the network. That requirement is not satisfied by the provisions in the aktiebolaglagen.
   As is apparent from the wording of Article 23(2)(a) of the Directive, that article requires a system of advance approval of network tariffs or, in any event, of the methodologies used to calculate them. Sweden has expressly stated that the present Swedish rules on the calculation of network tariffs and the criteria which network tariffs must satisfy are based on a system in which supervision is carried out after the event, but that inquiries are presently taking place regarding the introduction of a new system of advance approval and that a proposal would probably be put before parliament in June 2008.
   In the abovementioned circumstances, the Commission takes the view that Sweden has not correctly implemented Directive 2003/54/EC in its national law, in particular Articles 15(2)(b) and (c) and 23(2)(a) thereof.

      (1)  OJ 2003 L 176, p. 37.


title: Case T-121/09: Order of the General Court of 13 July 2010 — Al Shanfari v Council and Commission

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/54

         Order of the General Court of 13 July 2010 — Al Shanfari v Council and Commission
   (Case T-121/09) (1)

   ()
   2010/C 234/96
   Language of the case: English
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 113, 16.5.2009.


title: Case T-106/09: Action brought on 13 March 2009 — adp Gauselmann v OHIM — Maclean (Archer Maclean’s Mercury)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/40

         Action brought on 13 March 2009 — adp Gauselmann v OHIM — Maclean (Archer Maclean’s Mercury)
   (Case T-106/09)
   2009/C 113/80
   Language in which the application was lodged: English

      Parties

      Applicant: adp Gauselmann GmbH (Espelkamp, Germany) (represented by: P. Koch Moreno, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Archer Maclean (Banbury, United Kingdom)

      Form of order sought

               —

               Declare non-conformity of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2009 in case R 1266/2007-1 with Council Regulation 40/94;

               —

               Declare that Community trade mark application No 4 290 227 for classes 9 and 28 falls within the prohibition contained in Article 8(1)(b) of Council Regulation 40/94; and

               —

               Order OHIM and, as appropriate, the intervener in the proceedings to pay the costs.

      Pleas in law and main arguments

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

      Community trade mark concerned: The figurative mark ‘Archer Maclean’s Mercury’, for goods in classes 9, 16 and 28 — application No 4 290 227

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

      Mark or sign cited: German trade mark registration of the word mark ‘Merkur’ for goods and services in classes 6, 9, 28, 35, 37, 41 and 42

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that there were no visual, phonetic or conceptual identity similarities between the trade marks concerned, as well as that there was no identity of goods for classes 9 and 28, and therefore no likelihood of confusion between the trade marks concerned.


title: Case T-203/99: Action brought on 13 September 1999 by Patrizia De Palma, Jacqueline Escale, Claudine Hamptaux and Harry Wood against the Commission of the European Communities

text:
C 333/32              EN                      Official Journal of the European Communities                                    20.11.1999
So far as concerns specifically the report for 1995-1997, the            — breach of the principle of non-discrimination between
applicant is aware of the fact that the abovementioned                       officials, inasmuch as the appointing authority refuses to
implementing provisions provide that it is not mandatory to                  allow any travelling time linked to leave for trade union
draw up such a report where the official reaches retirement                  purposes, whereas officials who are granted special leave
age before expiry of the time-limit for the report to be                     other than leave for trade union purposes may, depending
communicated. He claims, however, that there are serious                     on the need therefor, be allowed travelling time by special
doubts as to their compatibility with the Staff Regulations on               decision;
which they are based.
                                                                         — breach of the principle of the protection of legitimate
                                                                             expectations, inasmuch as the appointing authority is
                                                                             required in any event to respect the legitimate expectations
                                                                             of applicants in its decision-making practices prior to the
                                                                             grant of travelling time linked to leave for trade union
                                                                             purposes, and should have adopted the appropriate tem-
                                                                             porary measures as regards the Congress in question,
Action brought on 13 September 1999 by Patrizia De                           assuming that it was entitled to refuse to grant the
Palma, Jacqueline Escale, Claudine Hamptaux and Harry                        travelling time in issue.
Wood against the Commission of the European Com-
                            munities
                                                                         The applicants also maintain that the obligation to provide a
                                                                         statement of the reasons for those acts has been disregarded in
                        (Case T-203/99)                                  the present case.
                        (1999/C 333/72)
                   (Language of the case: French)
An action against the Commission of European Communities
was brought before the Court of First Instance of the European           Action brought on 23 September 1999 by Olli Mattila
Communities on 13 September 1999 by Patrizia De Palma,                   against the Council of the European Union and the
Jacqueline Escale, Claudine Hamptaux and Harry Wood,                              Commission of the European Communities
residing in Brussels, represented by Carlos Mourato, of the
Brussels Bar, with an address for service at the office of                                       (Case T-204/99)
Fiduciaire Myson SARL, 30 Rue de Cessange.
                                                                                (1999/C 333/73)
The applicants claim that the Court should:
— annul the express decisions made on 11 June 1999                                          (Language of the case: English)
    rejecting the complaints lodged by the applicants with the
    appointing authority on 8, 14, 18 and 10 December 1998
    respectively, by which they contested the appointing                 An action against the Council of the European Union and the
    authority’s decision of 23 September 1998 not to accede              Commission of the European Communities was brought
    to the request for leave for trade union purposes or                 before the Court of First Instance of the European Communities
    travelling time in order to enable the applicants to attend          on 23 September 1999 by Olli Mattila, represented by Pro-
    the 13th UIECS Congress;                                             fessor Zacharias Sundström, with an address for service in
                                                                         Luxembourg at the Chambers of Arendt & Medernach, 28-10
— order the defendant to pay the costs.                                  rue Mathias Hardt.
                                                                         The applicant claims that the Court should:
Pleas in law and main arguments
                                                                         — annul the letters of 14 July 1999 and 5 July 1999, in so
By their action, the applicants contest the refusal by the                   far as they contain or communicate any decision or act of
appointing authority to accede to the request for leave for                  the Council and the Commission in response to the
trade union purposes or travelling time for the dates of 25                  applicant’s request under Article 230;
and 28 September 1998 in order to enable trade union
representatives of the UIECS, including the applicants, to               — to order, in any event, the Council and the Commission
attend the 13th Congress of that trade union, held in Italy.                 jointly to pay the costs incurred by the applicant in the
                                                                             present proceedings.
In support of their claims, the applicants plead:
— infringement of Article 24a and the second paragraph of                Pleas in law and main arguments
    Article 57 of the Staff Regulations, Articles 6 and 7 of
    Annex V to the Staff Regulations and Article 16 of the               The applicant in the present case challenges the refusal of the
    framework agreement of 20 September 1974 concerning                  defendant institutions to grant it access to specific documents
    relations between the Commission and trade unions and                relating to EU cooperation with Russia and other States of the
    staff associations;                                                  former Soviet Union.


title: Case T-210/08: Action brought on 4 June 2008 — Verhuizingen Coppens v Commission

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/30

         Action brought on 4 June 2008 — Verhuizingen Coppens v Commission
   (Case T-210/08)
   (2008/C 197/53)
   Language of the case: Dutch
   Parties

      Applicant: Verhuizingen Coppens NV (Bierbeek, Belgium) (represented by: J. Stuyck and I. Buelens, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Article 1 of the Commission Decision of 11 March 2008 in Case COMP/38.543 so far as concerns the applicant;

               —

               annul Article 2 of the Commission Decision of 11 March 2008 in Case COMP/38.543 so far as concerns the applicant;

               —

               in the alternative, reduce the fine and set it at an amount not exceeding 10 % of the applicant's turnover on the relevant market for international removal services;

               —

               in any event, order the Commission to pay the applicant's costs.

         Pleas in law and main arguments
   The applicant's first two pleas in law seek the annulment of the Commission decision of 11 March 2008 relating to a proceeding under Article 81 EC (Case COMP/38.543 — International removal services).
   The applicant submits, first, that there is an infringement of Article 81(1) EC. The applicant was sanctioned for participation in a complex cartel even though, according to the Commission's file, the applicant differed from the other participants in that it was found only to have participated in a small part of the alleged cartel. Furthermore, the applicant's alleged participation in the cartel was shorter than was found by the Commission, and the Commission failed to take into account the relative weight of the applicant's participation in the cartel.
   Second, the applicant submits that there is an infringement of Article 23(2) and (3) of Regulation 1/2003 (1), since the Commission incorrectly established both the duration and the continuing nature of the infringement.
   In the alternative, the applicant seeks an exemption from the fine imposed or at least a drastic reduction in its amount on the ground that the basic amount of the fine was wrongly established and calculated and there was a manifest breach of the principle of proportionality when setting the fine.

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


title: Joined Cases C-297/10 and C-298/10: Judgment of the Court (Second Chamber) of 8 September 2011 (references for a preliminary ruling from the Bundesarbeitsgericht (Germany)) — Sabine Hennigs (C-297/10) v Eisenbahn-Bundesamt, Land Berlin (C-298/10) v Alexander Mai (Directive 2000/78/EC — Articles 2(2) and 6(1) — Charter of Fundamental Rights of the European Union — Articles 21 and 28 — Collective agreement on pay for public sector contractual employees of a Member State — Pay determined by reference to age — Collective agreement abolishing the determination of pay by reference to age — Maintenance of established rights)

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/12

         Judgment of the Court (Second Chamber) of 8 September 2011 (references for a preliminary ruling from the Bundesarbeitsgericht (Germany)) — Sabine Hennigs (C-297/10) v Eisenbahn-Bundesamt, Land Berlin (C-298/10) v Alexander Mai
   (Joined Cases C-297/10 and C-298/10) (1)

   (Directive 2000/78/EC - Articles 2(2) and 6(1) - Charter of Fundamental Rights of the European Union - Articles 21 and 28 - Collective agreement on pay for public sector contractual employees of a Member State - Pay determined by reference to age - Collective agreement abolishing the determination of pay by reference to age - Maintenance of established rights)
   2011/C 311/17
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Applicants: Sabine Hennigs (C-297/10), Land Berlin (C-298/10)

      Defendants: Eisenbahn-Bundesamt (C-297/10), Alexander Mai (C-298/10)

      Re:

   References for a preliminary ruling — Bundesarbeitsgericht — Interpretation of Article 21 of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389), as implemented by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Remuneration of contractual public sector employees of a Member State — National rules providing for differences in basic pay according to age

      Operative part of the judgment

               1.

               The principle of non-discrimination on grounds of age proclaimed in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, more particularly Articles 2 and 6(1) of that directive, must be interpreted as precluding a measure laid down by a collective agreement such as that at issue in the main proceedings which provides that, within each salary group, the basic pay step of a public sector contractual employee is determined on appointment by reference to the employee’s age. The fact that European Union law precludes that measure and that it appears in a collective agreement does not interfere with the right to negotiate and conclude collective agreements recognised in Article 28 of the Charter of Fundamental Rights of the European Union.

               2.

               Articles 2 and 6(1) of Directive 2000/78 and Article 28 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a measure in a collective agreement, such as that at issue in the main proceedings in Case C-297/10, which replaces a system of pay leading to discrimination on grounds of age by a system of pay based on objective criteria while maintaining, for a transitional period limited in time, some of the discriminatory effects of the earlier system in order to ensure that employees in post are transferred to the new system without suffering a loss of income.

      (1)  OJ C 260, 25.9.10.


title: Judgement of the Court of First Instance of 19 July 1999 in Case T-14/98: Heidi Hautala v Council of the European Union (Public right of access to Council documents - Decision 93/731/EC - Exceptions to the principle of access to documents - Protection of the public interest concerning international relations - Partial access)

text:
16.10.1999             EN                     Official Journal of the European Communities                                         C 299/23
   JUDGEMENT OF THE COURT OF FIRST INSTANCE                                    ORDER OF THE COURT OF FIRST INSTANCE
                          of 19 July 1999                                                        of 21 May 1999
in Case T-14/98: Heidi Hautala v Council of the European                 in Case T-139/96: MD Foods Amba and Danske Mejeriers
                              Union (1)                                  Fællesorganisation v Commission of the European Com-
                                                                                munities (1)
(Public right of access to Council documents — Decision
93/731/EC — Exceptions to the principle of access to                                    (Case not proceeding to judgment)
documents — Protection of the public interest concerning
            international relations — Partial access)
                                                                                (1999/C 299/31)
                         (1999/C 299/30)
                                                                                (Language of the case: Danish)
                   (Language of the case: English)
                                                                         In Case T-139/96: MD Foods Amba, established at Viby
                                                                         (Denmark), and Danske Mejeriers Fællesorganisation, estab-
In Case T-14/98: Heidi Hautala, residing in Helsinki, represent-         lished at Århus (Denmark), represented by G. Lett, of the
ed by Onno W. Brouwer and Thomas Janssens, of the Brussels               Copenhagen Bar, and N. Scandamis, of the Athens Bar, with
Bar, with an address for service in Luxembourg at the                    an address for service in Luxembourg at the Chambers of
Chambers of Marc Loesch, 11 Rue Goethe, supported by                     R. Assa, 1 Rue J.P. Brasseur, v Commission of the European
Republic of Finland (Agents: Holger Rotkirch and Tuula Pynnä)            Communities (Agents: J.L. Iglesias Buhigues and H. Støvlbæk),
and Kingdom of Sweden (Agents: Lotty Nordling, Karin Kussak,             supported by the Hellenic Republic, the Council of the
Kristina Svahn Starrsjö and Anders Kruse) v Council of the               European Union and Koinopraktiki Tyrokomion Monadon
European Union (Agents: Jill Aussant, Giorgio Maganza and                Ioanninon Pindos AEBE — application for annulment of
Martin Bauer) supported by French Republic (Agents: Kareen               Commission Regulation (EC) No 1107/96 of 12 June 1996 on
Rispal-Bellanger and Denys Wibaux) — application for annul-              the registration of geographical indications and designations
ment of the Council’s decision of 4 November 1997 to refuse              of origin under the procedure laid down in Article 17 of
the applicant access to a document — the Court of First                  Council Regulation (EEC) No 2081/92 (OJ 1996 L 148, p. 1)
Instance (First Chamber), composed of: B. Vesterdorf, Presi-             in so far as concerns the registration of feta as a protected
dent, J. Pirrung and M. Vilaras, Judges; H. Jung, Registrar, has         designation of origin — the Court of First Instance (Third
given a judgment on 19 July 1999, in which it:                           Chamber), composed of: M. Jaeger, President, and K. Lenaerts
                                                                         and J. Azizi, Judges; H. Jung, Registrar, made an order on
                                                                         20 May 1999, the operative part of which is as follows:
1. Annuls the Council’s decision of 4 November 1997 refusing the
    applicant access to the report of the Working Group on
    Conventional Arms Exports;                                           1. There is no need to give a decision on the present application;
2. Orders the Council to pay the costs;                                  2. The applicants and the Commission are ordered to bear their
                                                                             own costs;
3. Orders the Republic of Finland, the Kingdom of Sweden and the
    French Republic to bear their own costs.                             3. The interveners are each ordered to bear their own costs.
(1) OJ C 72 of 7.3.1998.                                                 (1) OJ C 354 of 23.11.1996.


title: Case C-234/12: Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio — Italy) — Sky Italia Srl v Autorità per le Garanzie nelle Comunicazioni (Television broadcasting — Directive 2010/13/EU — Articles 4(1) and 23(1) — Advertising spots — National rule laying down a maximum percentage of broadcasting time which can be dedicated to advertising for pay-TV broadcasters which is lower than that laid down for free-to-air TV broadcasters — Equal treatment — Freedom to provide services)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/16

         Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio — Italy) — Sky Italia Srl v Autorità per le Garanzie nelle Comunicazioni
   (Case C-234/12) (1)

   (Television broadcasting - Directive 2010/13/EU - Articles 4(1) and 23(1) - Advertising spots - National rule laying down a maximum percentage of broadcasting time which can be dedicated to advertising for pay-TV broadcasters which is lower than that laid down for free-to-air TV broadcasters - Equal treatment - Freedom to provide services)
   2013/C 260/26
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicant: Sky Italia Srl

      Defendant: Autorità per le Garanzie nelle Comunicazioni

      Intervening parties: Reti Televisive Italiane (RTI) SpA, Maria Iaccarino

      Re:

   Request for a preliminary ruling — Tribunale Amministrativo Regionale per il Lazio — Interpretation of Article 4 of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (OJ 2010 L 95, p. 1) — Interpretation of Articles 49 TFEU, 56 TFEU and 63 TFEU and of Article 11 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights — Maximum percentage of broadcasting time which may be devoted to advertising — National legislation laying down a lower maximum percentage for pay-TV channels than for other channels

      Operative part of the judgment

   Article 4(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), as well as the principle of equal treatment and Article 56 TFEU must be interpreted as not precluding, in principle, a national rule, such as that at issue in the main proceedings, which lays down shorter hourly television advertising limits for pay-TV broadcasters than those set for free-to-air broadcasters, provided that the principle of proportionality is observed, which is a matter for the referring court to assess.

      (1)  OJ C 217, 21.7.2012.


title: Case T-201/04: Action brought on 7 June 2004 by Microsoft Corporation against the Commission of the European Communities

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/18

         Action brought on 7 June 2004 by Microsoft Corporation against the Commission of the European Communities
   (Case T-201/04)
   (2004/C 179/36)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 June 2004 by Microsoft Corporation, Washington (USA), represented by I. S. Forrester, QC, and J.-F. Bellis, lawyer.
   The applicant claims that the Court should:

               —

               annul the Commission Decision of 24 March 2004, or, in the alternative, annul or substantially reduce the fine imposed;

               —

               order the Commission to bear the costs.

         Pleas in law and main arguments:
   The applicant contests the decision of the Commission which found two abuses of a dominant position by the applicant and imposed a fine of EUR 497,196,304 on the applicant. In the decision, the Commission found that the applicant has refused to supply ‘Interoperability Information’ and allow its use for the purpose of developing and distributing work group server operating system products. Secondly, the Commission found that the applicant made the availability of the ‘Windows Client PC Operating System’ conditional on the simultaneous acquisition of Windows Media Player.
   Firstly, the applicant claims in support of its application that the Commission erred in finding that the applicant infringed Article 82 EC by refusing to supply communications protocols to competitors and to allow the use of that proprietary technology in competing work group server operating systems.
   According to the applicant, the conditions required by the European Courts before a dominant undertaking is obliged to license its intellectual property rights are not met in the present case. According to the applicant, the technology which it is ordered to license is not indispensable to achieve interoperability with Microsoft PC operating systems, the alleged refusal to supply the technology did not prevent the emergence of new products on a secondary market and, finally, did not have the effect of excluding all competition on a secondary market.
   Furthermore, the applicant claims that the contested decision wrongly denied that the applicant could rely on its intellectual property rights as an objective justification for its alleged refusal to supply the technology and instead advanced a new and legally defective balancing test invoking public interest in disclosure.
   The applicant also submits that no licence for the purpose of developing software in the EEA was ever requested and that the applicant was under no duty to regard Sun's request as giving rise to any special responsibility under Article 82 EC.
   Additionally, the applicant claims that the Commission failed to take into account the obligations imposed on the European Communities by the World Trade Organization's Agreement on Trade Related Aspects of Intellectual Property (TRIPS) when applying Article 82 to the facts of this case.
   Secondly, the applicant invokes that the Commission erred in determining that the applicant infringed Article 82 EC by making the availability of its PC operating systems conditional on the simultaneous acquisition of media functionality referred to as Windows Media Player.
   According to the applicant, the contested decision is based on a speculative foreclosure theory according to which the widespread distribution of media functionality in Windows may, at some undetermined point in the future, lead to a situation in which content providers and software developers will encode almost exclusively in Windows Media formats. The applicant submits that this theory is inconsistent with the Commission Decision regarding the AOL/Time Warner concentration (1) as well as with the evidence on file showing that content providers continue to encode in multiple formats.
   The applicant also submits that the contested decision ignores the benefits flowing from the applicant's business model, which entails the integration of new functionality into Windows in response to technological advances and changes in customer demand.
   Also, according to the applicant, the contested decision fails to meet the conditions required to establish a violation of Article 82 EC, and in particular point (d) thereof. The applicant submits that Windows and its media functionality are not two separate products. The applicant claims furthermore that the contested decision fails to demonstrate that the alleged tying and tied products are not connected naturally or by commercial usage. In addition, the applicant submits that the contested decision fails to take into account the obligation imposed on the European Communities by TRIPS when applying Article 82 EC to the facts of the case and that the remedy imposed is disproportionate.
   Thirdly, the applicant submits that the requirement that the applicant appoints and remunerate a trustee to monitor its compliance with the decision, and receive and investigate complaints, is unlawful as being ultra vires. The applicant states that the powers delegated to the trustee are investigatory and enforcement powers normally belonging to the Commission which cannot be delegated.
   Finally, the applicant submits that there is no basis for imposing any fine on the applicant in light of the legal novelty of the finding of abuse. The applicant also claims that the amount of the fine is plainly excessive.

      (1)  2001/718/EC: Commission Decision of 11 October 2000 declaring a concentration to be compatible with the common market and the EEA Agreement (Case No COMP/M.1845 - AOL/Time Warner) (OJ 2001 L 268, p. 28).