title: Case T-913/16: Action brought on 23 December 2016 — Fininvest and Berlusconi v ECB

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/35

         Action brought on 23 December 2016 — Fininvest and Berlusconi v ECB
   (Case T-913/16)
   (2017/C 063/47)
   Language of the case: Italian

      Parties

      Applicants: Finanziaria d’investimento Fininvest S.p.A. (Fininvest) (Rome, Italy) and Silvio Berlusconi (Rome) (represented by: R. Vaccarella, A. Di Porto, M. Carpinelli and A. Saccucci, lawyers)

      Defendant: European Central Bank

      Form of order sought

   The applicants claim that the Court should:

               —

               Annul the decision of 25 October 2016 of the European Central Bank, which decided ‘to oppose the acquisition by the Acquirers of a qualifying holding in the target Company’;

               —

               Order the European Central Bank to pay the costs.

      Pleas in law and main arguments

   The present action has been brought against the decision of 25 October 2016 adopted by the European Central Bank (ECB/SSM/2016-7LVZJ6XRIE7VNZ4UBX81/4) under Articles 22 and 23 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (CRD IV) (OJ 2013 L 176, p. 338), paragraph 5 of Article 1, Article 4(1)(c) and Article 15(3) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (the SSM Regulation) (OJ 2013 L 287, p. 63), Article 87 of Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1), and Articles 19, 22 and 25 of the Consolidated Italian Banking Code, by which the Central Bank opposed the acquisition, by Finanziaria d’investimento Fininvest S.p.A., of a qualifying holding in a credit institution (the target company).
   In support of their action, the applicants rely upon eight pleas in law, divided into three blocks.

               1.

               First plea in law, alleging misapplication of Articles 22 and 23 of the CRD IV, infringement of paragraph 5 of Article 1, Article 4(1)(c) and Article 15 of the SSM Regulation and of Articles 86 and 87 of the SSM Framework Regulation, including in relation to Articles 4(1), 5(2), and 13(2) TEU and Article 127(6) TFEU, and misuse of powers.

               2.

               Second, subsidiary plea in law, based on the fact that the CRD IV, if applied extensively to the present case, infringes the general principle of non-retroactivity of secondary legislation.

               3.

               Third plea in law, alleging infringement of the principle of legal certainty and the principle of res judicata in relation to final judgment No 882 of 3 March 2016 of the Consiglio di Stato, which ruled on the effects of the merger authorisation issued by the Banca d’Italia in relation to Fininvest’s holding in the target company.

                           —

                           The applicants claim in that regard that this first block of pleas in law attacks the very basis of the contested decision and in particular contests the interpretation of the CRD IV adopted by the ECB as both legally flawed and unlawfully expanding the specific powers conferred on the ECB by the SSM Regulation and by the SSM Framework Regulation, and as detrimental to the res judicata, already in existence at national level as a result of the final judgment of the Consiglio di Stato of 3 March 2016 in relation to the holding in the target company.

               4.

               Fourth plea in law, alleging infringement of Article 4(3) of the SSM Regulation, Article 23(1) and (4) of the CRD IV, and the general principles of lawfulness, legal certainty and the foreseeability of the administrative action in relation to the ECB’s application of the national transposing legislation, and infringement of the general principles of lawfulness and legal certainty in relation to the ECB’s considering that the Guidelines for the prudential assessment of acquisitions and increases in holdings in the financial sector required by Directive 2007/44/EC, adopted in 2008 by the CEBS, CESR and CEIOPS Committees, could be invoked against the applicants.

               5.

               Fifth, subsidiary plea in law, alleging infringement of essential procedural requirements in the form of failure to carry out a proper inquiry and failure to provide a statement of reasons in relation to the criterion of the ‘likely influence of the proposed acquirer on [the] credit institution’ (Article 23(1) of the CRD IV).

               6.

               Sixth plea in law, alleging infringement of the general principle of proportionality, because the contested decision, in essence, produces the effects of a ‘provvedimento ablatorio’ [a measure by which the public authorities compel a person to sacrifice a private interest for the public good], requiring the forced sale of a substantial shareholding, and infringement of Articles 16 and 17 of the Charter of Fundamental Rights of the European Union and of the corresponding general principles of EU law as derived from the European Convention on Human Rights and the constitutional traditions common to the Member States.

                           —

                           The applicants claim in that regard that this second block of pleas in law concerns the assessment carried out by the ECB and attacks, first, the reconstruction of the national legislation carried out by the ECB and, second, the failure to conduct a specific assessment of the ‘likely influence of the proposed acquirer on [the] credit institution’ and the failure to observe the principle of proportionality in the area of prudential supervision.

                     The third block of pleas in law, by contrast, is dedicated to a series of serious procedural defects alleged to have invalidated the supervisory procedure and the final decision of the ECB.

               7.

               Seventh plea in law, alleging breach of the rights of the defence which should have been ‘fully respected’ (Article 22(2) of the SSM Regulation and Article 32(1) of the SSM Framework Regulation) and of the right to sound administration affirmed by Article 41 of the Charter of Fundamental Rights, owing to the applicants’ delayed access to the case-file and to the fact that it was impossible for them to know the content of the act of the ECB on the basis of which the authorisation procedure was initiated. The applicants also allege misapplication of Article 32(1) and (5) of the SSM Framework Regulation.

               8.

               Eighth plea in law, alleging unlawfulness, on the basis of Article 227 TFEU, of Article 31(3) of the SSM Framework Regulation for breach of the rights of the defence guaranteed by Article 41 of the Charter of Fundamental Rights and infringement of the corresponding general principles of law derived from the constitutional traditions common to the Member States.


title: Case T-187/10: Action brought on 23 April 2010 — Emram v OHIM — Guccio Gucci (G)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/43

         Action brought on 23 April 2010 — Emram v OHIM — Guccio Gucci (G)
   (Case T-187/10)
   2010/C 179/76
   Language in which the application was lodged: French

      Parties

      Applicant: Maurice Emram (Marseille, France) (represented by: M. Benavï, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Guccio Gucci SpA (Florence, Italy)

      Form of order sought

               —

               annulment of the decision of OHIM in Case R 1281/2008-1;

               —

               reject the opposition to the filing of the trade mark G line No 2421402 of Gucci spa;

               —

               consequently, order OHIM to pay the costs;

               —

               order Gucci spa to pay the costs or expenses of the proceedings before OHIM.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Maurice Emram.

      Community trade mark concerned: Figurative trade mark “G” for goods in Classes 9, 18 and 25 — Application No 2 421 402.

      Proprietor of the mark or sign cited in the opposition proceedings: Guccio Gucci SpA.

      Mark or sign cited in opposition: Community and national figurate trade marks “G” for goods in Classes 9, 18 and 25.

      Decision of the Opposition Division: Rejection of the opposition.

      Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and refusal to register the mark applied for.

      Pleas in law: Infringement of Articles 8 and 75 of Regulation No 40/94 (now Articles 8 and 77 of Regulation No 207/2009) inasmuch as the Board of Appeal failed to apply the legal provisions concerned correctly and carried out too brief an analysis of the evidence raised by the applicant.


title: Case T-367/14: Action brought on 28 May 2014 — August Storck v OHIM — Chiquita Brands (Fruitfuls)

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/33

         Action brought on 28 May 2014 — August Storck v OHIM — Chiquita Brands (Fruitfuls)
   (Case T-367/14)
   2014/C 261/57
   Language in which the application was lodged: English

      Parties

      Applicant: August Storck KG (Berlin, Germany) (represented by: I. Rohr, A.-C. Richter, P. Goldenbaum and T. Melchert, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Chiquita Brands LLC (Charlotte, United States)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 March 2014 in Case R 1580/2013-5;

               —

               Order the defendant to pay its own costs and those of the applicant, and, should Chiquita Brands LLC intervene in the proceedings, order Chiquita Brands LLC to pay its own costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which an application for revocation has been made: The word mark ‘Fruitfuls’ for goods in Class 30 — Community trade mark registration No 5 014 519

      Proprietor of the Community trade mark: The applicant

      Party applying for revocation of the Community trade mark: Chiquita Brands LLC

      Decision of the Cancellation Division: The trade mark was revoked

      Decision of the Board of Appeal: The appeal was dismissed

      Pleas in law: Infringement of Article 51(1)(a) of Regulation No 207/2009.


title: Reference for a preliminary ruling by the Pretura Circondariale di Treviso, Sezione Distaccata di Conegliano, by order of that court of 2 November 1996 in the case of Galileo Zaninotto against Ispettorato Centrale Repressioni Frodi, Ufficio di Conegliano (Case C-375/96)

text:
8 . 2. 97             1 EN |                     Official Journal of the European Communities                                     No C 40/9
Reference for a preliminary ruling by the Pretura                                down by Article 40 ( 3 ) of the EC Treaty and
Circondariale di Caserta by order of that court of                               infringement of Article 23 of Regulation ( EEC )
14 October 1996 in the case of Antonio Pontillo against                          No 441 /88 ( 4 )?
                                 Donatab
                           Case C-372/96 )                                  2 . Are the fourth indent of Article 1 ( 3 ) of Regulation
                                                                                ( EC ) No 343/94 and Article 1 ( 1 ), ( 2 ) and ( 3 ) of
                             ( 97/C 40/ 17 )
                                                                                Regulation ( EC ) No 465/94, as amended by
                                                                                Regulation ( EC ) No 610/94, invalid for breach of the
Reference has been made to the Court of Justice of the                           principle of the protection of legitimate expectations ?
European Communities by order of the Pretura
Circondariale ( District Magistrates' Court ), Caserta , of                 3 . Are the fourth indent of Article 1 ( 3 ) of Regulation
14 October 1996 , received at the Court Registry on                              ( EC ) No 343/94 , and Article 1 ( 1 ), ( 2 ) and ( 3 ) of
25 November 1996 , for a preliminary ruling in the case of                       Regulation ( EC ) No 465/94, as amended by
Antonio Pontillo against Donatab on the following                                Regulation ( EC ) No 610/94, invalid for infringement
questions :                                                                      of Article 31 of Regulation ( EEC ) No 822/87 ( 5 ) and
                                                                                their enactment ultra vires for failure to meet the legal
1 . In the light of the principle of the protection of                           requirement of an accurate determination of the 'yield
      legitimate expectations and of the rationale underlying                    per hectare '?
     the quota system, is Council Regulation ( EEC )
      No 1738/91 (') to be regarded as valid, in so far as it               4 . Is Article 39 (4 ) of Regulation ( EEC ) No 822/87
      unexpectedly and unpreditably reduced the prices and                       invalid for breach of the principle of proportionality in
     the processing premium for tobacco of the variety                           so far as it prescribes, in the case of each producer
      known as Burley I ( Italian ) at such a late stage in the                  subject to the obligation , the volume to be distilled, a
     tobacco crop year that even most prudent and alert                          wholly inappropriate means of attaining the objective
     growers were left with no room for manoeuvre ?                              sought ?
2 . Is the fact that Regulation ( EEC ) No 1738/91 fails to                 5 . Is the fourth indent of Article 4 ( 2 ) of Regulation
      give any reasons at all , whether express or implied , for                  ( EEC ) No 441 /88 invalid for exceeding the limits on
      its provisions concerning Burley I tobacco — which                         the exercise of administrative discretion in delimiting
      was more seriously affected than other tobacco                             regions for the purposes of the common organization
      varieties even though excess production of those                           of the markets ?
      varieties had been even higher — open to criticism in
      that it constitutes a breach of essential procedural                  6 . Is Article 1 ( 1 ) of Regulation ( EC ) No 3151 /94 ( 6 )
      requirements ?                                                              invalid for infringement of Article 39 ( 1 ) of Regulation
                                                                                ( EEC ) No 822/87 inasmuch as it fails to meet the legal
(') OJ No L 163 , 26 . 6 . 1991 , p . 13 .                                        requirement of serving to restore market stability in
                                                                                the current wine year ?
                                                                            7. Is Article 1 ( 1 ) of Regulation ( EC ) No 3151 /94 invalid
                                                                                because it contravenes the principle of proportionality
                                                                                with which Community policy should be consistent ?
Reference for a preliminary ruling by the Pretura
Circondariale        di    Treviso ,       Sezione    Distaccata     di
                                                                             ')  OJ  No  L  44, 17 . 2 . 1994, p . 9 .
Conegliano, by order of that court of 2 November 1996                        2)  OJ  No  L  58 , 2 . 3 . 1994 , p . 2 .
in the case of Galileo Zaninotto against Ispettorato                         ')  OJ  No  I. 77, 19 . 3 . 1994 , p . 12 .
        Centrale Repressioni Frodi, Ufficio di Conegliano                    4)  OJ  No  L  45 , 18 . 2 . 1988 , p . 15 .
                          ( Case C-375 /96 )                                 ■') OJ  No  L  84, 27 . 3 . 1987, p . 1 .
                                                                             ") OJ   No  L  332 , 22 . 12 . 1994 , p . 32 .
                              ( 97/C 40/ 18 )
Reference has been made to the Court of Justice of the
European        Communities         by     order   of    the  Pretura
Circondariale ( District Magistrates' Court ), Treviso —
Sezione Distaccata di Conegliano ( Conegliano Section ) —                   Reference for a preliminary ruling by the Tribunal de
of 2 November 1996 , received at the Court Registry on                      Premiere Instance de Huy on a judgment of the Tribunal
26 November 1996 , for a preliminary ruling in the case of                  Correctionnel de Huy of 29 October 1996 in the criminal
Galileo Zaninotto against Ispettorato Centrale Repressioni                  proceedings pending before that court in the case of
Frodi , Ufficio di Conegliano, on the following questions:                  Ministere Public against B. Leloup, S. Leloup and Sofrage
                                                                                Sari
 1 . Are the fourth indent of Article 1 ( 3 ) of Regulation                                                Case C-376/96 )
       ( EC ) No 343/94 ('), and Article 1 ( 1 ) ( c ), Article 1 ( 2 ),
                                                                                97/C 40/ 19
       second subparagraph, and Article 1 ( 3 ) ( Annex,
       concerning Region 4 ) of Regulation ( EC ) No
       465/94 ( 2 ), as amended by Regulation ( EC ) No                     Reference has been made to the Court of Justice of the
       610/94 (■*) so far as concerns Region 4 , invalid for                European Communities by judgment of the Tribunal
       breach of the principle of non-discrimination laid                    Correctionnel ( Criminal Court ), Huy, of 29 October 1996 ,


title: Action brought on 8 October 1996 by the Commission of the European Communities against the Hellenic Republic (Case C-331/96)

text:
No C 370/4           I EN                     Official Journal of the European Communities                                     7 . 12 . 96
Reference for a preliminary ruling by the Tribunale di                   Action brought on 8 October 1996 by the Commission of
Genova by order of that court of 26 September 1996 in the                   the European Communities against the Hellenic Republic
case of Ente Autonoma Fiera Internazionale di Genova
                                                                                Case C-330/96
against Ministero delle Finanze dello Stato/Ispettorato
        Compartimentale Monopoli di Stato di Genova                                                  ( 96/C 370/09 )
                            ( Case C-327/96 )
                              ( 96/C 370/07 )
                                                                         An action against the Hellenic Republic was brought before
                                                                         the Court of Justice on 8 October 1996 by the Commission
Reference has been made to the Court of Justice of the                   of the European Communities, represented by Maria
European Communities by order of the Tribunale di                        Kondou-Durande, of its Legal Service, with an address for
Genova ( Genoa District Court) of 26 September 1996 ,                    service in Luxembourg at the office of Carlos Gomez de la
received at the Court Registry on 3 October 1996 , for a                 Cruz, also of the Commission's Legal Service, Wagner
preliminary ruling in the case of Ente Autonoma Fiera                    Centre, Kirchberg.
Internazionale di Genova against Ministero delle Finanze
dello Stato/Ispettorato Compartimentale Monopoli di Stato
di Genova on the question of the interpretation of                       The applicant claims that the Court should declare that, by
Articles 86, 3 , 5 , 30 and 52 of the Treaty in relation to              failing to adopt or, in the alternative , to communicate to the
Article 15 of the Schedule of Requirements for premises for              Commission, within the period prescribed, the laws,
the retail sale of monopoly goods in so far as it imposes on             regulations or administrative provisions necessary to
                                                                         comply with Commission Directive 91 /244/EEC 0 ) of
retailers a positive obligation, supported by appropriate
                                                                         6 March 1991 amending Council Directive 79/409/EEC on
penalties, to promote domestically produced fine tobacco
and not to engage in, or allow, advertising for foreign                  the conservation of wild birds, the Hellenic Republic is in
product brands and tobaccos, whether from inside or                      breach of its obligations under the Treaty and that
                                                                         Directive .
outside the Community.
                                                                         Pleas in law and main arguments adduced in support:
                                                                         The period within which the Member States were to
Action brought on 8 October 1996 by the Commission of
   the European Communities against the Hellenic Republic                comply with the provisions of the Directive expired on
                                                                         31 July 1994 . The Commission notes that the Hellenic
                            ( Case C-329/96 )                            Republic has still not complied with the Directive .
                              ( 96/C 370/08 )
                                                                         f 1 ) OJNoL115 , 8 . 5 . 1991 , p . 41 .
An action against the Hellenic Republic was brought before
the Court of Justice on 8 October 1996 by the Commission
of the European Communities, represented by Maria
Kondou-Durande, of its Legal Service, with an address for
service in Luxembourg at the office of Carlos Gomez de la                Action brought on 8 October 1996 by the Commission of
Cruz, also of the Commission's Legal Service, Wagner                        the European Communities against the Hellenic Republic
Centre, Kirchberg.
                                                                                ( Case C-331/96 )
The applicant claims that the Court should declare that, by                                          ( 96/C 370/ 10 )
failing to adopt or, in the alternative, to communicate to the
Commission, within the period prescribed, the laws,
regulations or administrative provisions necessary to                    An action against the Hellenic Republic was brought before
comply with Council Directive 92/43/EEC (!) of 21 May                    the Court of Justice on 8 October 199 6 by the Commission
 1992 on the conservation of natural habitats and of wild                of the European Communities, represented by Maria
fauna and flora, the Hellenic Republic is in breach of its               Kondou-Durande, of its Legal Service, with an address for
obligations under the Treaty and that Directive .                        service in Luxembourg at the office of Carlos Gomez de la
                                                                          Cruz, also of the Commission 's Legal Service, Wagner
Pleas in law and main arguments adduced in support:                       Centre, Kirchberg.
The period within which the Member States were to                        The applicant claims that the Court should declare that, by
comply with the provisions of the Directive expired on                    failing to adopt or, in the alternative, to communicate to the
 5 June 1992 . The Commission notes that the Hellenic                     Commission, within the period prescribed, the laws,
Republic has still not complied with the Directive.                       regulations or administrative provisions necessary to
                                                                          comply with Council Directive 92/72/EEC of 21 September
 (!) OJ No L 206 , 22 . 7 . 1992, p . 7.                                  1992 on air pollution by ozone f 1 ), the Hellenic Republic is
                                                                          in breach of its obligations under the Treaty and that
                                                                          Directive .
 ---pagebreak--- 7 . 12 . 96              EN 1                 Official Journal of the European Communities                                 No C 370 / 5
Pleas in law and main arguments adduced in support:                      Concerning freedom of movement for workers and the tax
                                                                         status of Franco-German frontier workers
The period within which the Member States were to
comply with the provisions of the Directive expired on
21 March 1994 . The Commission notes that the Hellenic                   — Whether the principle of freedom of movement for
Republic has still not complied with the Directive .                         workers, as embodied in the Treaty of Rome and the
                                                                             implementing legislation, is contravened by a tax
f 1 ) OJ No L 297, 13 . 10 . 1992, p . 1 .                                   regime, applicable to frontier workers, of the kind
                                                                             provided for by the Franco-German Convention, in so
                                                                             far as the latter lays down taxation arrangements which
                                                                             are different for people whose remuneration is paid by a
                                                                             public entity as compared with those whose
                                                                             remuneration is paid by private persons and as a result
Reference for a preliminary ruling from the                                  is liable to have an impact on access to posts in the
Verwaltungsgericht, Diisseldorf, by order of that court of                   public or private sectors depending on residence in one
24 September 1996 in the administrative proceedings                          State or another,
between Stadt Dormagen and Bezirksregierung Diisseldorf,
                   joined party: Klaus Mackel
                           ( Case C-334/96 )                             — Whether a rule under which a frontier worker receiving
                             ( 96/C 370/11 )                                 remuneration from a State or an agency thereof
                                                                             governed by public law is taxable in that State,
                                                                             whereas, if the frontier worker has the nationality of the
Reference has been made to the Court of Justice of the                       other State but is not at the same time a national of the
European Communities by an order of the First Chamber of                     first State, his remuneration is taxable in the State
the Verwaltungsgericht ( Administrative Court), Diisseldorf,                 where the frontier worker resides is compatible with the
of 24 September 1996, which was received at the Court                        principle of freedom of movement and the abolition of
Registry on 10 October 1996 , for a preliminary ruling in                    all discrimination on grounds of nationality,
the administrative proceedings between Stadt Dormagen
( Town of Dormagen ) and Bezirksregierung Diisseldorf
( Diisseldorf District Administration ), joined party: Klaus             — Whether a tax provision which lays down for frontier
Mackel, on the following question :                                          workers employed by persons governed by public law a
                                                                             tax regime which differs according to whether they are
Is Article 2(1 ) and (4 ) of Council Directive 76/207/EEC of                 nationals only of that State or have dual nationality is
9 February 1976 on the implementation of the principle of                    compatible with Article 7 of the Treaty;
equal treatment for men and women as regards access to
employment, vocational training and promotion, and
working conditions C ) to be interpreted as precluding a rule            Concerning the special tax regime for teachers
of national law under which in areas of activity in the
public sector in which fewer women than men are
employed in the relevant higher post in a career group,                  — Whether the principle of freedom of movement for
where men and women candidates for promotion are                             workers, as embodied in the Treaty, is contravened by
equally qualified ( as regards suitability, competence and                   tax rules which are liable to affect the choice made by
professional performance ) women must be given priority                      teachers in the contracting States as to whether to work
unless reasons specific to a male candidate predominate ?                    on a more or less long-term basis in another State
                                                                             having regard to the differences, based on the duration
(!) OJ No L 39, 14 . 2 . 1976 , p . 40 .                                     of employment, in the tax regimes of the States in
                                                                             question;
                                                                         Concerning the tax credit mechanism introduced by
                                                                         Article 20 of the Franco-German Convention as regards
Reference for a preliminary ruling by the Tribunal                       residents of France
Administratif de Strasbourg, by judgment of that court of
10 October 1996 in the case of Mr and Mrs Robert Gilly
       against Directeur des Services Fiscaux du Bas-Rhin                — Whether the objective of abolishing double taxation
                           ( Case C-336/96 )                                 laid down in Article 220 of the Treaty must be
                                                                             regarded, in view of the time which the Member States
                             ( 96/C 370/ 12 )                                have had to implement it, as now having the status of a
                                                                             directly applicable rule under which double taxation
Reference has been made to the Court of Justice of the                       may no longer take place and whether the objective of
European Communities by judgment of the Tribunal                             avoiding double taxation assigned to the Member States
Administratif ( Administrative Court), Strasbourg, of                        by Article 220 is contravened by a tax convention under
10 October 1996, received at the Court Registry on                           which the tax regime applicable to frontier workers of
11 October 1996 , for a preliminary ruling in the case of Mr                 States party to the convention varies according to their
and Mrs Robert Gilly v. Directeur des Services Fiscaux du                    nationality and the public or private nature of the post
Bas-Rhin ( Director of Taxes for the Bas-Rhin ) on the                       held and whether a tax credit tax regime applicable to a
following questions:                                                         household living in one State which does not take into


8.3.2003               EN                   Official Journal of the European Union                                          C 55/21
        Removal from the register of Case C-347/01 ( 1)                     Removal from the register of Case C-390/01 ( 1)
                         (2003/C 55/52)                                                      (2003/C 55/55)
By order of 28 November 2002 the President of the Court of          By order of 12 December 2002 the President of the Court of
Justice of the European Communities ordered the removal             Justice of the European Communities ordered the removal
from the register of Case C-347/01: Commission of the               from the register of Case C-390/01: Commission of the
European Communities v Federal Republic of Germany.                 European Communities v Portuguese Republic.
( 1) OJ C 331 of 24.11.2001.                                        (1 ) OJ C 348 of 8.12.2001.
        Removal from the register of Case C-377/01 ( 1)                     Removal from the register of Case C-21/02 (1)
                         (2003/C 55/53)                                                      (2003/C 55/56)
                                                                    By order of 13 December 2002 the President of the Court of
By order of 11 December 2002 the President of the Court of
                                                                    Justice of the European Communities ordered the removal
Justice of the European Communities ordered the removal
                                                                    from the register of Case C-21/02: Commission of the
from the register of Case C-377/01: Commission of the
                                                                    European Communities v Italian Republic.
European Communities v Kingdom of Belgium.
                                                                    (1 ) OJ C 68 of 16.03.2002.
( 1) OJ C 317 of 10.11.2001.
                                                                            Removal from the register of Case C-88/02 (1)
        Removal from the register of Case C-389/01 ( 1)
                                                                                (2003/C 55/57)
                         (2003/C 55/54)
                                                                    By order of 15 November 2002 the President of the Court of
By order of 12 December 2002 the President of the Court of          Justice of the European Communities ordered the removal
Justice of the European Communities ordered the removal             from the register of Case C-88/02 (Reference for a preliminary
from the register of Case C-389/01: Commission of the               ruling by the Tribunale di Brescia): Dolomite italiana SpA (SDI)
European Communities v Portuguese Republic.                         v Ministero delle Finanze.
( 1) OJ C 348 of 8.12.2001.                                         (1 ) OJ C 131 of 01.06.2002.


title: Case C-43/06: Action brought on  27 January 2006  by the Commission of the European Communities against the Portuguese Republic

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/12

         Action brought on 27 January 2006 by the Commission of the European Communities against the Portuguese Republic
   (Case C-43/06)
   (2006/C 86/20)
   Language of the case: Portuguese
   An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 27 January 2006 by the Commission of the European Communities, represented by Hans Støvlbæk and Pedro Andrade, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare that the Portuguese Republic, by requiring persons who hold professional qualifications in architecture awarded by other Member States to pass an admission test to the Portuguese Institute of Architects when they are not members of the relevant professional body of any other Member State, has failed to fulfil its obligations under Articles 2 and 10 of Directive 85/384/EEC; (1)

               —

               order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   The Commission is bringing Treaty infringement proceedings against the Portuguese Republic for failing fully to implement Directive 85/384.
   Although the Directive was implemented by Decreto-Lei No 14/90 of 8 January, the publication of Decreto-Lei No 176/98 was a retrograde step.
   On the basis of Decreto-Lei No 176/98, the Portuguese Institute of Architects is requiring architects trained in other Member States, who are not registered with the respective professional bodies of those States, to pass an admission test.
   Architects from other Member States who are not registered with their respective professional bodies must therefore take examinations in architecture in the host State, since they cannot practise their profession in Portugal unless they are registered with the Institute of Portuguese Architects.
   For the Commission, that situation is unlawful, since it is contrary to the provision made by Directive 85/384. The directive does not draw a distinction, as the Portuguese State does, between an academic qualification and a professional title. Recognition of diplomas under the sectoral directives is automatic. If the training fulfils the requirements of Articles 3 and 4 of Directive 85/834, the Member State must recognise the qualification, allowing the architect from the home Member State to practise his or her profession using the title of architect.

      (1)  Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1985 L 223, p. 15).


title: Case C-440/12: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany), lodged on 3 October 2012 — Metropol Spielstätten Unternehmergesellschaft (with limited liability) v Finanzamt Hamburg-Bergedorf

text:
               15.12.2012

               EN

               Official Journal of the European Union

               C 389/4

         Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany), lodged on 3 October 2012 — Metropol Spielstätten Unternehmergesellschaft (with limited liability) v Finanzamt Hamburg-Bergedorf
   (Case C-440/12)
   2012/C 389/06
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Metropol Spielstätten Unternehmergesellschaft (with limited liability)

      Defendant: Finanzamt Hamburg-Bergedorf

      Questions referred

               1.

               Is Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) read in combination with Article 135(1)(i) of that directive, to be interpreted as meaning that value added tax and a national special tax on games of chance may be levied only as alternatives, and not cumulatively?

               2.

               Only if the answer to Question 1 is in the affirmative:
               If, under national provisions, both value added tax and a special tax are levied on games of chance, does this mean that value added tax is not levied or that the special tax is not levied, or does the decision as to which of the two taxes may not be levied depend on national law?

               3.

               Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as precluding a national provision or practice whereby, in the operation of gaming machines offering the possibility of winning, the content of the machine’s cash box (‘electronically counted cash box’) serves as a basis of assessment after a certain period of time?

               4.

               Only if the answer to Question 3 is in the affirmative:
               How is the basis of assessment otherwise to be determined?

               5.

               Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that the levying of VAT is subject to the condition that the trader can pass the value added tax on to the recipient of the supply? If so, what is to be understood by the ability to pass on the tax? In particular, is the legal permissibility of a correspondingly higher price for the product or service an attribute of the ability to pass that tax on?

               6.

               Only if in answer to Question 5 the legal permissibility of a higher price is a precondition:
               Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that provisions which limit the consideration for goods or services subject to value added tax are to be applied in accordance with European Union law in such a way that value added tax is understood not to be included in the consideration set but to be in addition to it, even where, according to their wording, the national provisions governing consideration do not expressly so provide?

               7.

               Only if the answer to Question 5 is in the affirmative and the answers to Questions 6 and 3 are in the negative:
               In the present case, is no value added tax to be levied on the total turnover of the gaming machines, or is it to be levied only on the part that cannot be passed on, and how is that part to be determined: for example, on the turnover at which the stake per game could not be increased, or on the turnover at which the contents of the cash box per hour could not be increased?

               8.

               Is Article 1(2) of Directive 2006/112 to he interpreted as precluding a national regulation on an unharmonised tax under which the value added tax owed is set in full against that tax?

               9.

               Only if the answer to Question 8 is in the affirmative:
               Does the setting of value added tax against a national, unharmonised tax in the case of traders liable to pay the latter tax have the effect that value added tax may not be levied on their competitors who, though not subject to this unharmonised tax, are subject to another special tax and for whom there is no provision for such offsetting?

      (1)  OJ 2006 L 347, p. 1.


title: Case T-410/07: Judgment of the Court of First Instance of 12 May 2009 — Jurado Hermanos v OHIM (JURADO) (Community trade mark — Community word mark JURADO — Failure by the proprietor of the trade mark to apply for renewal — Removal of the mark on expiry of the registration — Application by the exclusive licensee for restitutio in integrum)

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/37

         Judgment of the Court of First Instance of 12 May 2009 — Jurado Hermanos v OHIM (JURADO)
   (Case T-410/07) (1)

   (Community trade mark - Community word mark JURADO - Failure by the proprietor of the trade mark to apply for renewal - Removal of the mark on expiry of the registration - Application by the exclusive licensee for restitutio in integrum)
   2009/C 153/71
   Language of the case: Spanish

      Parties

      Applicant: Jurado Hermanos, SL (Alicante, Spain) (represented by: C. Martín Álvarez, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and P. López Fernández de Corres, acting as Agents)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 3 September 2007 (Case R 866/2007-2) concerning the application lodged by the applicant for restitutio in integrum.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Jurado Hermanos, SL to pay the costs, including those of the interlocutory proceedings.

      (1)  OJ C 8, 12.1.2008.


title: Case C-303/09: Judgment of the Court (Fifth Chamber) of 14 July 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Aid to firms investing in the municipalities seriously affected by natural disasters in 2002 — Recovery)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/3

         Judgment of the Court (Fifth Chamber) of 14 July 2011 — European Commission v Italian Republic
   (Case C-303/09) (1)

   (Failure of a Member State to fulfil obligations - State aid - Aid to firms investing in the municipalities seriously affected by natural disasters in 2002 - Recovery)
   2011/C 269/04
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: L. Flynn, V. Di Bucci and E. Righini, acting as Agents)

      Defendant: Italian Republic (represented by: G. Palmieri, Agent, and D. Del Gaizo and P. Gentili, avvocati)

      Re:

   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed time limits, the measures necessary to comply with Articles 2, 5 and 6 of Commission Decision 2005/315/EC of 20 October 2004 on the aid scheme implemented by Italy for firms investing in municipalities seriously affected by natural disasters in 2002 (notified under document No C(2004) 3893) (OJ 2005 L 100, p. 46).

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, the measures necessary to recover from the beneficiaries all the aid granted under the aid scheme declared incompatible with the common market by Commission Decision 2005/315/EC of 20 October 2004 on the aid scheme implemented by Italy for firms investing in municipalities seriously affected by natural disasters in 2002, the Italian Republic has failed to fulfil its obligations under Article 5 of that decision;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 256, 24.10.2009.


title: Case C-16/15: Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 4 de Madrid — Spain) — María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid) (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 3 to 5 — Successive fixed-term employment contracts within the public health service — Measures to prevent the abusive use of successive fixed-term employment relationships — Penalties — Reclassification of the employment relationship — Right to compensation)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/12

         Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 4 de Madrid — Spain) — María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid)
   (Case C-16/15) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clauses 3 to 5 - Successive fixed-term employment contracts within the public health service - Measures to prevent the abusive use of successive fixed-term employment relationships - Penalties - Reclassification of the employment relationship - Right to compensation))
   (2016/C 419/14)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Contencioso-Administrativo No 4 de Madrid

      Parties to the main proceedings

      Applicant: María Elena Pérez López

      Defendant: Servicio Madrileño de Salud (Comunidad de Madrid)

      Operative part of the judgment

               1.

               Clause 5(1)(a) of the framework agreement on fixed-term work, concluded on 18 March 1999, set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the application of national legislation, such as that at issue in the main proceedings, by the authorities of the Member State concerned in such a way that:

                           —

                           the renewal of successive fixed-term employment contracts in the public health sector is deemed to be justified by ‘objective grounds’, within the meaning of that clause, on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in fact, those needs are fixed and permanent;

                           —

                           there is no obligation on the competent authority to create additional permanent posts in order to bring an end to the employment of occasional regulated staff and it is permitted to fill the permanent posts created by hiring ‘temporary’ staff, so that the precarious situation of workers is perpetuated, where there is a structural deficit of regulated staff posts in that sector in the Member State concerned.

               2.

               Clause 5 of the framework agreement on fixed-term work set out in the Annex to Directive 1999/70 must be interpreted as meaning that it does not preclude, in principle, national legislation which requires that the contractual relationship is to terminate on the date provided by the fixed-term contract and that all outstanding remuneration is to be paid, without prejudice to a possible reappointment, provided that that legislation does not compromise the objective and practical effect of that framework agreement, which is a matter to be determined by the referring court.

               3.

               The Court of Justice of the European Union manifestly lacks jurisdiction to answer the fourth question referred for a preliminary ruling by the Juzgado de lo Contencioso-Administrativo No 4 de Madrid (Administrative Court No 4, Madrid, Spain).

      (1)  OJ C 96, 23.3.2015.


title: Case T-519/09: Action brought on 23 December 2009 — Toshiba v Commission

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/41

         Action brought on 23 December 2009 — Toshiba v Commission
   (Case T-519/09)
   2010/C 51/77
   Language of the case: English

      Parties

      Applicant: Toshiba Corp. (represented by: J. MacLennan, Solicitor, A. Schulz, J. Jourdan and P. Berghe, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul the Decision of the European Commission relating to proceedings under Article 81 EC (Article 101 TFEU) and Article 53 EEA in case COMP/39.129 — Power Transformers in so far as it relates to the applicant;

               —

               cancel the fine imposed on the applicant;

               —

               in the alternative, in the event that the contested decision is upheld in whole or in part, reduce the fine imposed on the applicant;

               —

               order the Commission to pay the applicant’s costs incurred in these proceedings;

               —

               grant such other order as may be necessary to give effect to the judgment of the Court.

      Pleas in law and main arguments

   By means of the present application, the applicant seeks the annulment of Commission decision of 7 October 2009 (Case No COMP/39.129 — Power Transformers) in so far as the Commission found the applicant liable of infringement of Article 81 EC and Article 53 EEA by participating in the sharing of markets by means of the Gentlemen’s Agreement between European and Japanese producers of power transformers to respect each others home markets and to refrain from selling in those markets. Alternatively, the applicant seeks the reduction of the fine imposed upon it.
   In support of its claims the applicant submits four pleas in law.
   First, the applicant submits that the Commission failed to prove to the requisite legal standard the existence of, and the applicant’s participation in, a Gentlemen’s Agreement, or indeed any agreement or concerted practice, between European and Japanese producers of power transformers.
   Second, the applicant argues that the Commission failed to establish jurisdiction over the alleged Gentlemen’s Agreement, even if, quod non, proved. It submits that, due to the very high barriers to entry, such an agreement was not capable of having an immediate and substantial effect on competition in the EU or an influence on the pattern of trade between Member States.
   In its third plea, put forward alternatively, the applicant contends that the Commission erred in deciding on the duration of the infringement and of the applicant’s participation therein. It submits that the Commission failed to prove that some meetings had any anti competitive object or effect and that by participating in them the applicant infringed European competition law.
   Further in the alternative, in its fourth plea, the applicant claims that the Commission erred in law and in fact in setting the basic amount of its fine. First, it submits that the Commission erred in choosing the reference year to calculate the value of the applicant’s sales departing thus from the methodology set out in the Fining Guidelines. Furthermore, in the applicant’s opinion, the Commission committed a manifest error of appreciation in ignoring the very high barriers to entry on the European market an assuming that Toshiba could have achieved to the EEA market a market share equal to its worldwide market share. The applicant also submits that the Commission wrongly interpreted Paragraph 18 of the Fining Guidelines to justify estimating the value of the applicant’s EEA sales on the basis of its worldwide sales rather then looking only at the markets affected by the alleged infringement. As a result, the applicant considers that the fine imposed on it is disproportionate.


title: Case C-441/99: Reference for a preliminary ruling from the Högsta Domstolen, by order of that court of 11 November 1999, in the case of Riksskatteverket v Soghra Gharehveran

text:
5.2.2000               EN                    Official Journal of the European Communities                                      C 34/13
     — Article 6(1) and (2) of Council Directive                        before the Court of Justice of the European Communities
         86/280/EEC (10) of 12 June 1986 on limit values and            on 16 November 1999 by Karl L. Meyer, represented by
         quality objectives for discharges of certain dangerous         Jean-Dominique des Arcis, with an address for service in
         substances included in List I of the Annex to Directive        Luxembourg at the office of Mr Pakowski, Ambassador of the
         76/464/EEC, as last amended by Directive                       Federal Republic of Germany, 20-22 Avenue Emile Reuter.
         90/415/EEC (11),
     having regard to the wording of those provisions inserted          The appellant claims that the Court should:
     by Article 2(1) of Directive 91/692/EEC (12), the Portuguese
     Republic has failed to fulfil its obligations under the            — Declare all his claims admissible and well founded;
     abovementioned directives or under the first paragraph of
     Article 10 and the third paragraph of Article 249 of the           — Hold that the Commission’s fax of 30 March 1999 is an
     EC Treaty;                                                             act against which an action may be brought, corresponding
                                                                            to a measure affecting the legal situation of the applicant
(b) Order the Portuguese Republic to pay the costs.                         as a private European investor in French Polynesia;
                                                                        — Remit the case to the Court of First Instance for the
Contentions and principal arguments adduced in support                      procedure on the substance to be continued.
By virtue of the first paragraph of Article 10 and the third
paragraph of Article 249 of the EC Treaty, Member States are            Pleas in law and main arguments
to take all appropriate measures to ensure fulfilment of the
obligations arising out of acts adopted by the Community
institutions and facilitate the achievement of the Community’s          Breach of Community law: The contested act was the final act
tasks, and they are required to achieve the results pursued by          of an enquiry procedure for finding out the Community
directives within the periods appointed by those directives. In         provisions and information on the conditions of Community
the present case, the Commission finds that, even though                financing, concerning the applicant’s investment in a tropical
the appointed period expired on 30 September 1995, the                  fruit plantation in Polynesia. The Court of First Instance
Portuguese Republic has still not forwarded to it the reports           wrongly declined to regard the Commission’s refusal to
on the application of the directives listed above.                      provide that documentation and information as a decision.
(1) OJ 1976 L 129, p. 23.
(2) OJ 1978 L 54, p. 19.
(3) OJ 1983 L 32, p. 28.
(4) OJ 1978 L 222, p. 1.
(5) OJ 1980 L 20, p. 43.
(6) OJ 1982 L 81, p. 29.
(7) OJ 1983 L 291, p. 1.                                                Reference for a preliminary ruling from the Högsta
(8) OJ 1984 L 74, p. 49.
(9) OJ 1984 L 274, p. 11.
                                                                        Domstolen, by order of that court of 11 November 1999,
(10) OJ 1986 L 181, p. 16.                                                in the case of Riksskatteverket v Soghra Gharehveran
(11) OJ 1990 L 219, p. 49.
(12) OJ 1991 L 377, p. 48.                                                                      (Case C-441/99)
                                                                                (2000/C 34/25)
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Högsta Domstolen of
Appeal brought on 16 November 1999 by Karl L. Meyer                     11 November 1999, which was received at the Court Registry
against the order made on 27 October 1999 by the Third                  on 19 November 1999, for a preliminary ruling in the case of
Chamber of the Court of First Instance of the European                  Riksskatteverket v Soghra Gharehveran on the following
Communities in Case T-106/99 between Karl L. Meyer                      questions:
    and the Commission of the European Communities
                                                                        1. Is the exception which applies to Sweden under Article 1(2)
                        (Case C-436/99 P)                                   of Council Directive 80/987/EEC (1) of 20 October 1980
                                                                            on the approximation of the laws of the Member States
                                                                            relating to the protection of workers in the event of the
                          (2000/C 34/24)                                    insolvency of their employer to be interpreted as meaning
                                                                            that, in accordance with Swedish case-law as it had
An appeal against the order made on 27 October 1999 by the                  developed and was applicable until 1 July 1994, the
Third Chamber of the Court of First Instance of the European                exception is applicable to an employee who did not himself
Communities in Case T-106/99 between Karl L. Meyer and the                  own any share of the undertaking but whose close relative
Commission of the European Communities was brought                          owned an essential share of that undertaking?
 ---pagebreak--- C 34/14                EN                   Official Journal of the European Communities                                      5.2.2000
2. If Question 1 is answered in the negative:                          Action brought on 22 November 1999 by the Com-
                                                                       mission of the European Communities against the Italian
     A Member State has implemented Council Directive                                              Republic
     80/987/EEC and designated the State as being liable for
     payment of an employee’s claims against an employer who
     has been declared insolvent. In such a case, is the effect of                             (Case C-444/99)
     the Directive such that an employee may enforce a right to
     a wage guarantee without regard to a national provision
     which excludes certain groups of employees from the right                                  (2000/C 34/27)
     to a wage guarantee but which is not consistent with the
     exception to the Directive which is applicable to the
     Member State?                                                     An action against the Italian Republic was brought before the
                                                                       Court of Justice on 22 November 1999 by the Commission of
(1) OJ 1980 L 283, p. 23.                                              the European Communities, represented by Marie Wolfcarius
                                                                       and Stefania Dragone, of its Legal Service, acting as Agent,
                                                                       with an address for service in Luxembourg at the office of
                                                                       Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Reference for a preliminary ruling from the Oberlandes-                The applicant claims that the Court should:
gericht Wien by order of that court of 5 November 1999
in the case of Merck, Sharp & Dohme GmbH v Paranova                    1. Declare that, by leaving in force a system of authorization
               Pharmazeutika Handels GesmbH                                and a quota system for combined transport operations, the
                                                                           Italian Republic has failed to fulfil its obligations under
                         (Case C-443/99)                                   Council Directive 92/106/EEC (1) of 7 December 1992 on
                                                                           the establishment of common rules for certain types of
                          (2000/C 34/26)                                   combined transport of goods between Member States, in
                                                                           particular Article 2 thereof;
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberlandesgericht
Wien (Higher Regional Court, Vienna) of 5 November 1999,               2. Order the Italian Republic to pay the costs.
which was received at the Court Registry on 22 November
1999, for a preliminary ruling in the case of Merck, Sharp &
Dohme GmbH v Paranova Pharmazeutika Handels GesmbH
on the following question:                                             Contentions and principal arguments adduced in support
Must Article 7(2) of the First Council Directive of 21 December
1988 to approximate the laws of the Member States relating             Article 2 of Directive 92/106/EEC requires the Member States,
to trade marks (89/104/EEC) (1) be interpreted as meaning              by 1 July 1993, to liberalise the combined transport operations
that a trade mark owner may oppose the marketing of a                  referred to in Article 1 from all quota systems and systems of
pharmaceutical product put on the market under his trade               authorization.
mark where the importer has repackaged it and reaffixed the
trade mark and has complied with the other requirements set
forth in the Court of Justice judgment in Joined Cases                 The Italian Republic has infringed that article because, despite
C-427/93, C-429/93 and C-436/93 (2) (the product inside the            having changed the system of special authorisations for
packaging must not be affected, the manufacturer and origin            combined transport operations by converting it into a system
must be clearly indicated, the reputation of the trade mark or         of general authorisations, it has nevertheless kept in force a
its owner must not be damaged as a consequence of poor                 system of authorisations for combined transport operations.
packaging, and the trade mark owner must be given notice
before the repackaged pharmaceutical product is put on sale),
but the marketability of the product would be jeopardised              Moreover, by not issuing any general authorisation in accor-
without such repackaging solely because a significant pro-             dance with Article 1 of the Decree of 27 June 1992 in order
portion of the consumers of pharmaceutical products in the             to enable carriers to undertake combined transport operations,
State of importation is suspicious of pharmaceutical products          the Italian Republic has infringed Article 2 of the directive in
which have clearly been produced for the market of another             so far as it has kept in force a quota system for combined
State (in which a different language is spoken) and are inside         transport operations.
packagings which have been adapted merely by means of
self-stick labels to the domestic provisions governing the sale
of pharmaceutical products?
                                                                       (1) OJ 1992 L 368, p. 38.
(1) OJ L 40 of 11.2.1989, p. 1.
(2) [1996] ECR I-3457.


title: Case C-307/07: Judgment of the Court (Sixth Chamber) of 10 July 2008 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil its obligations — Directive 89/48/EEC — Recognition of diplomas awarded on completion of professional education and training of at least three years' duration — Failure to recognise diplomas which give access to the profession of pharmacist specialising in medical biology — Failure to transpose)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/15

         Judgment of the Court (Sixth Chamber) of 10 July 2008 — Commission of the European Communities v Portuguese Republic
   (Case C-307/07) (1)

   (Failure of a Member State to fulfil its obligations - Directive 89/48/EEC - Recognition of diplomas awarded on completion of professional education and training of at least three years' duration - Failure to recognise diplomas which give access to the profession of pharmacist specialising in medical biology - Failure to transpose)
   (2008/C 223/24)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by: H. Støvlbæk and P. Andrade, acting as Agents)

      Defendant: Portuguese Republic (represented by: L. Fernandes, Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Failure to transpose Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p. 16) in relation to the profession of pharmacist specialising in medical biology
   Operative part of the judgment
   The Court:

               1.

               declares that, by failing to adopt the measures necessary to transpose Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, as amended by Directive 2002/19/EC of the European Parliament and the Council of 14 May 2001, in relation to the profession of pharmacist specialising in medical biology, the Portuguese Republic has failed to fulfil its obligations under that directive;

               2.

               orders the Portuguese Republic to pay the costs.

      (1)  OJ C 199, of 25.8.2007.


title: Case T-373/07: Action brought on 27 September 2007 — EOS v OHIM (PrimeCast)

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/37

         Action brought on 27 September 2007 — EOS v OHIM (PrimeCast)
   (Case T-373/07)
   (2007/C 283/67)
   Language of the case: German
   Parties

      Applicant: EOS GmbH Electro Optical Systems (Krailling, Germany) (represented by M. Mentjes, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 20 July 2007 in Case R 333/2005-4, notified to the applicant by facsimile on 27 July 2007;

               —

               Order the defendant to pay the costs in accordance with Article 87(2) and (5) of the Rules of Procedure.

         Pleas in law and main arguments

      Community trade mark concerned: the verbal mark ‘PrimeCast’ for goods and services in Classes 1, 19, 40 and 42 (Application No 2854677).

      Decision of the Examiner: refusal in part of the application.

      Decision of the Board of Appeal: dismissal of the appeal.

      Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1).

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


title: JUDGMENT OF THE COURT (Sixth Chamber) of 29 June 1995 in Case C-454/93 (reference for a preliminary ruling from the Arbeidshof, Brussels): Rijksdienst voor Arbeidsvoorziening v. Joop van Gestel (Social security for migrant workers - Designation of the competent State in accordance with Article 17 of Regulation (EEC) No 1408/71 - Residence and employment in a Member State other than the competent State - Unemployment benefits provided pursuant to Article 71 (1) (b) (ii))

text:
2 . 9 . 95           I                         Official Journal of the European Communities                                  No C 229/5
Court, Germany ) for a preliminary ruling in the proceedings              Judges; G. Cosmas, Advocate-General; H. A. Riihl ,
pending before that court between Hauptzollamt Heilbronn                  Principal Administrator, for the Registrar, gave a judgment
and Temic Telefunken Microelectronic GmbH in the                          on 29 June 1995 , the operative part of which is as
presence of the Bundesministerium der Finanzen — on the                   follows :
interpretation of Article 18 ( 2 ) ( d ), the first subparagraph of
Article 18 ( 3 ) and the first indent of Article 21 ( 1 ) ( a ) of         1 . Article 71 (1 ) (b) (ii) of Council Regulation (EEC)
Council Regulation ( EEC ) No 1999/85 of 16 July 1985 on                         No 1408/71 on the application of social security
inward processing relief arrangements ( 2 ) — the Court                         schemes to employed persons, to self-employed persons
( Fourth Chamber), composed of: P. J. G. Kapteyn, President                     and to members of their families moving within the
of the Chamber, C. N. Kakouris and J. L. Murray                                  Community, as amended and updated by Council
( Rapporteur), Judges; G. Tesauro, Advocate-General ;                            Regulation (EEC) No 2001 /83 of 2 June 1983 must be
L. Hewlett, Administrator, for the Registrar, has given a                        interpreted as also applying to unemployed persons who
judgment on 29 June 1995 , in which it rules :                                   during their last employment resided in the Member
                                                                                State in which they worked, even where, in derogation
Article 18 (2) (d), the first subparagraph of Article 18 (3)                    from Article 13 (2) (a) of that Regulation, and pursuant
and the first indent of Article 21 ( 1 ) (a) of Council                          to Article 1 7, therein referred to, the competent
Regulation (EEC) No 1999/85 of 16 July 1985 on inward                           authorities of two Member States are in agreement that
processing relief arrangements are to be interpreted as                         the employed person is to remain subject to the social
meaning that a quantitative limitation may not be attached                      security legislation of one of those Member States, not
to an authorization to use the system of processing under                       being the one in whose territory the unemployed person
customs control as a way of discharging the inward                              was employed;
processing relief arrangements.
                                                                          2 . that article applies even where the agreement pursuant
( 1 ) OJ No C 332 , 8 . 12 . 1993 .                                             to Article 1 7 ofthe Regulation came into being when the
( 2 ) OJ No L 188 , 20 . 7 . 1985 , p . 1 .                                     employed person was already working and residing in
                                                                                the territory of one and the same Member State.
                                                                          (') OJ No C 1 , 4 . 1 . 1994 .
                                                                          ( 2 ) OJ No L 149 , 5 . 7. 1971 , p . 2 .
                                                                          (-1 ) OJ No L 230 , 22 . 8 . 1983 , p . 6 .
                JUDGMENT OF THE COURT
                          ( Sixth Chamber )
                          of 29 June 1995
     in Case C-454/93 ( reference for a preliminary ruling                                JUDGMENT OF THE COURT
        from the Arbeidshof, Brussels ): Rijksdienst voor
                                                                                ( Sixth Chamber )
            Arbeidsvoorziening v. Joop van Gestel ( ] )
(Social security for migrant workers — Designation of the                                           of 29 June 1995
competent State in accordance with Article 1 7 ofRegulation               in Case C-456/93 ( reference for a preliminary ruling from
(EEC) No 1408/71 — Residence and employment in a                          the Oberlandesgericht Frankfurt am Main ): Zentrale zur
Member State other than the competent State —                             Bekämpfung unlauteren Wettbewerbs eV v. Privatkellerei
          Unemployment benefits provided pursuant to                           Franz Wilhelm Langguth Erben GmbH & Co. KG ( 1 )
                       Article 71 (1) (b) (ii))                           (Description of wines — Repetition on the label ofthe terms
                            ( 95/C 229/09 )                                'Kabinett', Spatlese 'Auslese ' and 'WeiEherbst' as parts of
                                                                                a brand name)
                 (Language of the case: Dutch)                                                        ( 95/C 229/10 )
(Provisional translation; the definitive translation will be                               (Language of the case: German)
           published in the European Court Reports)
                                                                          (Provisional translation; the definitive translation will be
In Case C-454/93 : reference to the Court under Article 177                          published in the European Court Reports)
of the EC Treaty by the Arbeidshof ( Higher Labour Court),
Brussels, for a preliminary ruling in the proceedings                     In Case C-456/93 : reference to the Court under Article 177
pending before that court between Rijksdienst voor                        of the EC Treaty by the Oberlandesgericht ( Higher Regional
Arbeidsvoorziening and Joop van Gestel on the                             Court ) Frankfurt am Main ( Germany ) for a preliminary
interpretation of Articles 17 and 71 ( 1 ) ( b ) ( ii ) of Council        ruling in the proceedings pending before that court between
Regulation ( EEC ) No 1408/71 of 14 June 1971 on the                      Zentrale zur Bekampfung unlauteren Wettbewerbs eV and
application of social security schemes to employed persons,               Privatkellerei Franz Wilhelm Langguth Erben GmbH & Co .
to self-employed persons and to members of their families                 KG on the interpretation of Article 40 ( 3 ) of Council
moving within the Community ( 2 ), as amended and updated                 Regulation ( EEC ) No 2392/89 of 24 July 1989 laying down
by Council Regulation ( EEC ) No 2001 /83 of 2 June 1983 ( 3 )            general rules for the description and presentation of wines
— the Court ( Sixth Chamber), composed of: F. A.                          and grape musts ( 2 ) and Article 3 of Commission Regulation
Schockweiler, President of the Chamber, G. F. Mancini, C.                 ( EEC ) No 3201/90 of 16 October 1990 laying down
N. Kakouris ( Rapporteur ), J. L. Murray and G. Hirsch,                   detailed rules for the description and presentation of wines


title: Case C-134/08: Reference for a preliminary ruling from the Bundesfinanzhof lodged on 2 April 2008 — J.E. Tyson Parketthandel GmbH hanse j. v Hauptzollamt Bremen

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/12

         Reference for a preliminary ruling from the Bundesfinanzhof lodged on 2 April 2008 — J.E. Tyson Parketthandel GmbH hanse j. v Hauptzollamt Bremen
   (Case C-134/08)
   (2008/C 171/21)
   Language of the case: German
   Referring court
   Bundesfinanzhof (Germany)
   Parties to the main proceedings

      Applicant: J.E. Tyson Parketthandel GmbH hanse j.

      Defendant: Hauptzollamt Bremen
   Question referred
   Is Article 4(2) of Council Regulation (EC) No 2193/2003 of 8 December 2003 establishing additional customs duties on imports of certain products originating in the United States of America (1) to be interpreted, contrary to its wording, as meaning that products for which it can be demonstrated that they are on their way to the Community on the date of first application of the additional duties and whose destination cannot be changed are not affected by the additional duty?

      (1)  OJ 2003 L 328, p. 3.


title: Case C-469/06: Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Farmakemporiki Anonimi Etairia Emporias kai Dianomis Farmakeftikon Proionton v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/3

         Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Farmakemporiki Anonimi Etairia Emporias kai Dianomis Farmakeftikon Proionton v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   (Case C-469/06)
   (2007/C 20/04)
   Language of the case: Greek
   Referring court
   Efetio Athinon
   Parties to the main proceedings

      Claimant: Farmakemporiki Anonimi Etairia Emporias kai Dianomis Farmakeftikon Proionton

      Defendant: GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   Questions referred:

               1.

               Where the refusal of an undertaking holding a dominant position to meet fully the orders sent to it by pharmaceutical wholesalers is due to its intention to limit their export activity and, thereby, the harm caused to it by parallel trade, does the refusal constitute per se an abuse within the meaning of Article 82 EC? Is the answer to that question affected by the fact that the parallel trade is particularly profitable for the wholesalers because of the different prices, resulting from State intervention, in the Member States of the European Union, that is to say by the fact that pure conditions of competition do not prevail in the pharmaceuticals market, but a regime which is governed to a large extent by State intervention? Is it ultimately the duty of a national competition authority to apply Community competition rules in the same way to markets which function competitively and those in which competition is distorted by State intervention?

               2.

               If the Court holds that limitation of parallel trade, for the reasons set out above, does not constitute an abusive practice in every case where it is engaged in by an undertaking holding a dominant position, how is possible abuse to be assessed? In particular:

               2.1

               Do the percentage by which normal domestic consumption is exceeded and/or the loss suffered by an undertaking holding a dominant position compared with its total turnover and total profits constitute appropriate criteria? If so, how are the level of that percentage and the level of that loss determined (the latter as a percentage of turnover and total profits), above which the conduct in question may be abusive?

               2.2

               Is an approach entailing the balancing of interests appropriate, and, if so, what are the interests to be compared? In particular:

                           (a)

                           is the answer affected by the fact that the ultimate consumer/patient derives limited financial advantage from the parallel trade and

                           (b)

                           is account to be taken, and to what extent, of the interests of social insurance bodies in cheaper medicinal products?

               2.3

               What other criteria and approaches are considered appropriate in the present case?


title: JUDGMENT OF THE COURT (Fifth Chamber) of 18 December 1997 in Case C-263/96: Commission of the European Communities v. Kingdom of Belgium (Failure to fulfil obligations - Directive 89/106/EEC - Construction products)

text:
20.2.98               EN                  Official Journal of the European Communities                                      C 55/11
Common system of value added tax: uniform basis of                   1. declares that, by not adopting all the laws, regulations
assessment (OJ L 145, 13.6.1977, p. 1) Ð the Court (Fifth                 and administrative provisions necessary to comply
Chamber), composed of: C. Gulmann (Rapporteur),                           with Council Directive 89/106/EEC of 21 December
President of the Chamber, M. Wathelet, J. C. Moitinho de                  1988 on the approximation of laws, regulations and
Almeida, J.-P. Puissochet and L. Sevón, Judges; F. G.                     administrative provisions of the Member States
Jacobs, Advocate-General; H. von Holstein, Deputy                         relating to construction products, the Kingdom of
Registrar, for the Registrar, has given a judgment on                     Belgium has failed to fulfil its obligations under that
18 December 1997, in which it has ruled:                                  Directive;
On a proper construction of Articles 6(1) and 11(A)(1)(a)            2. orders the Kingdom of Belgium to pay the costs.
of the Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member                  (1) OJ C 269, 14.9.1996.
States relating to turnover taxes Ð Common system of
value added tax: uniform basis of assessment, an
undertaking given by a farmer under a national
compensation scheme not to harvest at least 20 % of his
potato crop does not constitute a supply of services for the
purposes of that Directive. Consequently, compensation
received for that purpose is not subject to turnover tax.                           JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
(1) OJ C 31, 3.2.1996.                                                                   of 18 December 1997
                                                                     in Case C-284/96 (reference for a preliminary ruling from
                                                                     the Tribunal de Grande Instance de Briey): Didier
                                                                     Tabouillot v. Directeur des Services Fiscaux de Meurthe-
                                                                                et-Moselle (1)
                                                                     (Article 95 of the Treaty Ð Differential tax on motor
               JUDGMENT OF THE COURT                                                             vehicles)
                       (Fifth Chamber)                                                        (98/C 55/20)
                    of 18 December 1997
                                                                                (Language of the case: French)
in   Case    C-263/96: Commission of the European
          Communities v. Kingdom of Belgium (1)
(Failure to fulfil obligations Ð Directive 89/106/EEC Ð                (Provisional translation; the definitive translation will be
                   Construction products)                                      published in the European Court Reports)
                         (98/C 55/19)
                                                                     In Case C-284/96: reference to the Court under Article 177
                                                                     of the EC Treaty from the Tribunal de Grande Instance de
                (Language of the case: Dutch)                        Briey (Regional Court, Briey), France, for a preliminary
                                                                     ruling in the proceedings pending before that court
                                                                     between Didier Tabouillot and Directeur des Services
                                                                     Fiscaux de Meurthe-et-Moselle Ð on the interpretation of
  (Provisional translation; the definitive translation will be
                                                                     Article 95 of the EC Treaty for the purpose of determining
         published in the European Court Reports)
                                                                     whether the French system of motor vehicle tax is
                                                                     compatible with that provision Ð the Court (Fifth
                                                                     Chamber), composed of: C. Gulmann, President of the
In Case C-263/96: Commission of the European                         Chamber, M. Wathelet (Rapporteur), J. C. Moitinho de
Communities (Agent: Hendrik van Lier) v. Kingdom of                  Almeida, D. A. O. Edward and J.-P. Puissochet, Judges;
Belgium (Agent: Jan Devadder) Ð application for a                    F. G. Jacobs, Advocate-General; D. Louterman-Hubeau,
declaration that, by not adopting the laws, regulations and          Principal Administrator, for the Registrar, has given a
administrative provisions necessary to comply with                   judgment on 18 December 1997, in which it has ruled:
Council Directive 89/106/EEC of 21 December 1988 on
the approximation of laws, regulations and administrative
provisions of the Member States relating to construction             A situation such as that arising from the importation into
products (OJ L 40, 11.2.1989, p. 12), the Kingdom of                 a Member State of a vehicle which has come directly from
Belgium has failed to fulfil its obligations under that              a non-member country does not fall within the scope of
Directive Ð the Court (Fifth Chamber), composed of: C.               Article 95 of the EC Treaty.
Gulmann, President of the Chamber, J. C. Moitinho de
Almeida, D. A. O. Edward, J.-P. Puissochet and L. Sevón              (1) OJ C 318, 26.10.1996.
(Rapporteur), Judges; G. Tesauro, Advocate-General; R.
Grass, Registrar, has given a judgment on 18 December
1997, in which it:


title: Case T-106/07: Action brought on 11 April 2007 — Alcon v OHIM — *Acri.Tec (BioVisc)

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/19

         Action brought on 11 April 2007 — Alcon v OHIM — *Acri.Tec (BioVisc)
   (Case T-106/07)
   (2007/C 129/34)
   Language in which the application was lodged: English
   Parties

      Applicant: Alcon, Inc. (Hünenberg, Switzerland) (represented by: M. Graf, lawyer)

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

      Other party to the proceedings before the Board of Appeal: *Acri.Tec AG Gesellschaft für ophthalmologische Produkte (Hennigsdorf, Germany)
   Form of order sought

               —

               The decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 February 2007 in Case R 660/2006-2 Alcon, Inc. v. OHIM (BioVisc) be annulled insofar as it dismissed the opposition of Alcon, Inc. against CTM application 3 651 809 ‘BioVisc’;

               —

               the Office for Harmonisation be ordered to bear its own costs and to pay those of the applicant.

         Pleas in law and main arguments

      Applicant for the Community trade mark: *Acri.Tec AG Gesellschaft für ophthalmologische Produkte

      Community trade mark concerned: The word mark ‘BioVisc ’for goods in class 5 — application No 3 651 809

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

      Mark or sign cited: The Community and international word marks ‘PROVISC ’and ‘DUOVISC ’for goods in class 5

      Decision of the Opposition Division: Opposition upheld in its entirety

      Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition in its entirety

      Pleas in law: The trade marks in question are confusingly similar and the goods applied for are identical to those covered by the opposition trade marks.


title: Judgment of the Court (Sixth Chamber) of 2 October 2001 in Case C-449/99 P: European Investment Bank v Michel Hautem (Appeal — Members of the staff of the European Investment Bank — Dismissal — Interpretation of the Staff Regulations of the European Investment Bank — Plea alleging mistaken characterisation of the legal nature of the facts and an error in the statement of reasons — Alleged infringement of the rules applicable to relations between the European Investment Bank and its staff)

text:
24.11.2001               EN                      Official Journal of the European Communities                                            C 331/5
health at work of pregnant workers and workers who have                                      JUDGMENT OF THE COURT
recently given birth or are breastfeeding (tenth individual
Directive within the meaning of Article 16(1) of Directive
89/391/EEC) (OJ 1992 L 348, p. 1) — the Court, composed                                              (Sixth Chamber)
of: A. La Pergola, President of the Chamber, M. Wathelet
(Rapporteur), P. Jann, L. Sevón and C.W.A. Timmermans,
Judges; A. Tizzano, Advocate General; H. von Holstein, Deputy                                       of 2 October 2001
Registrar, for the Registrar, has given a judgment on 4 October
2001, in which it has ruled:
                                                                            in Case C-449/99 P: European Investment Bank v Michel
                                                                                Hautem (1)
1.   Article 10 of Council Directive 92/85/EEC of 19 October
     1992, on the introduction of measures to encourage improve-
     ments in the safety and health at work of pregnant workers and         (Appeal — Members of the staff of the European Investment
     workers who have recently given birth or are breastfeeding (10th       Bank — Dismissal — Interpretation of the Staff Regulations
     individual Directive within the meaning of Article 16(1) of            of the European Investment Bank — Plea alleging mistaken
     Directive 89/391/EEC), has direct affect and is to be interpreted      characterisation of the legal nature of the facts and an error
     to the effect that, in the absence of transposition measures taken     in the statement of reasons — Alleged infringement of
     by a Member State within the period prescribed by that                 the rules applicable to relations between the European
     Directive, it confers on individuals rights on which they may                           Investment Bank and its staff)
     rely before a national court against the authorities of that State.
                                                                                (2001/C 331/07)
2.   In allowing derogations from the prohibition of dismissal of
     pregnant workers, workers who have recently given birth or
     workers who are breast feeding in cases ‘not connected with
     their condition which are permitted under national legislation                             (Language of the case: French)
     and/or practice’, Article 10(1) of Directive 92/85/EEC, does
     not require the Member States to specify the particular grounds
     on which such workers may be dismissed.                                (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
3.   Whilst the prohibition of discrimination laid down in Article 10
     of Directive 92/85/EEC applies to both employment contracts
     for an indefinite period and fixed-term contracts, non-renewal
     of such a contract, when it comes to an end as stipulated,
     cannot be regarded as a dismissal prohibited by that provision.        In Case C-449/99 P: European Investment Bank (Agent:
                                                                            G. Marchegiani, assisted by G. Vandersanden) appeal against
     However, where non-renewal of a fixed-term contract is
     motivated by the worker’s state of pregnancy, it constitutes           the judgment of the Court of First Instance of the European
                                                                            Communities (Fifth Chamber) of 28 September 1999 in Case
     direct discrimination on grounds of sex, contrary to Article 2(1)
                                                                            T-140/97 Hautem v EIB [1999] ECR-SC I-A-171 and II-897,
     and 3(1) of Council Directive 76/207/EEC of 9 February
     1976 on the implementation of the principle of equal treatment         seeking to have that judgment set aside in part, the other party
                                                                            to the proceedings being: Michel Hautem, a member of the
     for men and women as regards access to employment, vocational
                                                                            staff of the European Investment Bank, residing in Schouweiler
     training and promotion, and working conditions.
                                                                            (Luxembourg) (Avocats: M. Karp and J. Choucroun) — the
                                                                            Court (Sixth Chamber), composed of: C. Gulmann, President
4.   In providing that the dismissal of a pregnant worker, of a             of the Chamber, V. Skouris (Rapporteur), J.-P. Puissochet,
     worker who has recently given birth or of a worker who is              R. Schintgen and N. Colneric, Judges; L.A. Geelhoed, Advocate
     breastfeeding may take place, in exceptional cases ‘and, where         General; R. Grass, Registrar, has given a judgment on 2 October
     applicable, provided that competent authority has given its            2001, in which it:
     consent’, Article 10(1) of Directive 92/85/EEC is not to be
     interpreted as imposing on Member States any obligation to
     have a national authority, having found that there is an               1.    Dismisses the appeal;
     exceptional case justifying the dismissal of a pregnant worker,
     give its consent prior to the employer’s decision to dismiss the
     worker.                                                                2.    Orders the European Investment Bank to pay the costs.
(1) OJ C 20 of 22.1.2000.                                                   (1) OJ C 34 of 5.2.2000.