title: Action brought on 20 August 1998 by Elaine Spence against the Commission of the European Communities (Case T-135/98)

text:
C 327/32               EN               Official Journal of the European Communities                                   24.10.98
     Socialists, Pauline Green, dated 30 June 1998 and sent        Action brought on 20 August 1998 by Elaine Spence
     by registered post on 1 July 1998;                               against the Commission of the European Communities
                                                                                (Case T-135/98)
Ð annul the future decision rejecting the complaint                                        (98/C 327/56)
     against that decision submitted by the applicant on
     10 August 1998, in so far as that complaint is not
     allowed;                                                                     (Language of the case: French)
Ð order the defendant to pay all the costs in any event.           An action against the Commission of the European
                                                                   Communities was brought before the Court of First
                                                                   Instance of the European Communities on 20 August
Pleas in law and main arguments adduced in support:                1998 by Elaine Spence, residing in Wezembeek-Oppem
                                                                   (Belgium), represented by Georges Vandersanden and
                                                                   Laure Levi, of the Brussels Bar, with an address for service
                                                                   in Luxembourg at the offices of Fiduciaire Myson SARL,
The applicant, a member of the temporary staff in Grade
                                                                   30 Rue de Cessange.
A 5, has already lodged an application (1) challenging the
Parliament's implicit decision of 11 July 1997 not to
promote him to Grade A 4 and its failure to draw up his
staff reports for the periods 1993Ð1994 and 1995Ð1996.             The applicant claims that the Court should:
By the present application, the applicant is challenging the       Ð annul the decision adopted by the appointing
decision of the Bureau of the Group of the Party of                    authority on 17 October 1997, notified to the
European Socialists of 30 June 1998, terminating his                   applicant on 23 October 1997, withdrawing a decision
contract as a member of the temporary staff with effect                of 7 August 1997 transferring the applicant and her
from the evening of 2 October 1998.                                    post to Directorate-General I Ð External Relations:
                                                                       Commercial policy and relations with North America,
                                                                       the Far East, Australia and New Zealand with effect
According to the applicant, the decision to dismiss him                from 1 September 1997 and, in so far as is necessary,
was made without duly informing the Staff Committee in                 annul the implicit decision rejecting the complaint
advance; furthermore, no reasons were given for the                    registered on 22 January 1998;
decision, which was based on an inadequate statement of
reasons. He alleges infringement of the rules in Articles 24a
and 25(2) of the Staff Regulations, which apply to                 Ð award damages provisionally set at BEF 300 000;
members of the temporary staff by virtue of Article 11(1)
of the Conditions of Employment of Other Servants
(hereinafter the CEOS'), and Article 47(2)(a) of the CEOS
and Article 11 of the internal rules on the recruitment of         Ð order the defendant to pay the costs.
officials and other servants adopted on 15 March 1989 by
the Bureau of the European Parliament. Furthermore, he
claims infringement of Article 11 of the European                  Pleas in law and main arguments adduced in support:
Convention on Human Rights and general principles of
law such as those requiring the equal treatment of
officials, respect for the rights of the defence, the
performance in good faith of agreements and the                    The applicant, an official in DG XIV of the defendant
protection of legitimate expectations, as well as the              institution, challenges the withdrawal on 17 October 1997
principle that every act of the administration must be             of the appointing authority's decision of 7 August 1997 to
based on a relevant statement of reasons.                          transfer her to DG I. That decision was based on a
                                                                   deterioration in the applicant's working conditions, which
                                                                   arose following the appointment of her last immediate
                                                                   superior, who she accused of systematic mobbing'.
Second, the applicant alleges that the appointing authority
committed a misuse of powers. In his assertion, the
contested decision dismissing him is unlawful in so far as
it is based on considerations unrelated to his aptitude and        In support of her assertions, the applicant alleges, first of
professional performance.                                          all, infringement of the principle of the protection of
                                                                   legitimate expectations. It is submitted in that respect that
                                                                   the contested decision annuls a previous decision with
(1) Case T-130/98.                                                 effect from 1 September 1997, which in practice
                                                                   constitutes a retroactive withdrawal in disregard of the
                                                                   extremely strict requirements imposed by Community
                                                                   case-law. The applicant stresses in that respect that the
 ---pagebreak--- 24.10.98             EN                   Official Journal of the European Communities                                     C 327/33
decision of 7 August 1997 was properly adopted by the                Ð hold that the defendant is obliged to make reparation
defendant, which had not received any false or incomplete                 for the non-material damage suffered by the applicant
information from her. In fact, it constitutes the final step              as a result of the illegality of the contested decision
in a procedure initiated, following the intervention of the               and order the defendant to pay damages to be
Ombudsman, between the applicant herself and the                          determined by the Court;
[acting] head of the unit to which she was to be
transferred. Furthermore, she considers there to be no
public interest which could override her interest in the             Ð order the defendant to pay             the    costs  of the
continuation of a situation which she was entitled to                     proceedings.
regard as permanent. An alleged lack of information from
certain people within DG I, which is the basis for the
contested decision, clearly cannot be assimilated to a
                                                                     Pleas in law and main arguments adduced in support:
public interest.
                                                                     The applicant accuses the appointing authority of having
The applicant also alleges a breach of the duty to state             failed to take action in the face of the sexual harassment,
reasons, in that the contested decision does not contain             coupled with harassment in connection with work,
any statement of reasons, not even a standard phrase.                allegedly suffered by the applicant at the hands of her
Furthermore, and in so far as it became apparent during              immediate superior.
the inter-departmental meeting that the contested decision
was based on an alleged lack of information from the
immediate superior to the head of the unit to which she
                                                                     In support of her claims she raises the following pleas in
was to be transferred, she claims that, even if the duty to
                                                                     law:
state reasons was satisfied on that basis, the contested
decision should in any event be considered to be based on
grounds which are invalid, since the procedures for
informing and obtaining the approval of the hierarchy                Ð Misuse of powers and infringement of Articles 12, 24
within DG I been complied with.                                           and 25 of the Staff Regulations of Officials of the
                                                                          European Communities, of Council Directive 76/207/
                                                                          EEC of 9 February 1976 on the implementation of the
                                                                          principle of equal treatment for men and women as
The applicant concludes by claiming that the appointing                   regards access to employment, vocational training and
authority acted in breach of the duty to have regard for                  promotion and working conditions (1), of the Council
the welfare of officials and the interest of the service.                 Resolution of 29 May 1990 on the protection of the
                                                                          dignity of women and men at work (2), of the
                                                                          Commission's Recommendation (92/131/EEC) of
                                                                          27 November 1991 on the protection of the dignity of
                                                                          women and men at work (3) and of the code of
                                                                          practice intended to combat sexual harassment
                                                                          annexed to the Commission's Recommendation 92/
Action brought on 20 August 1998 by G' against                           131/EEC of 27 November 1991.
        Commission of the European Communities
                       (Case T-136/98)
                                                                     Ð Breach of the general principles of legal certainty and
                        (98/C 327/57)                                     of the protection of legitimate expectations, in so far
                                                                          as the applicant, who was encouraged by the adoption
                                                                          and distribution of encouraging rules to submit a
                                                                          complaint against the person harassing her, came up
               (Language of the case: French)
                                                                          against a wall of indifference and hostility.
An action against the Commission of the European
                                                                     Ð Infringement of the rights of the defence, in so far as
Communities was brought before the Court of First
                                                                          the applicant, who was heard on two occasions during
Instance of the European Communities on 20 August
                                                                          the administrative enquiry concerning the facts under
1998 by G', represented by Anne Krywin, of the Brussels
                                                                          investigation, was never given access to the file
Bar, with an address for service in Luxembourg at the
                                                                          resulting from that enquiry. Furthermore, she claims
Chambers of AndreÂ Lutgen, 1 Rue Jean-Pierre Brasseur.
                                                                          that the enquiry was conducted with insufficient
                                                                          objectivity and impartiality.
The applicant claims that the Court should:
                                                                     (1) OJ L 39, 14.2.1976, p. 40.
                                                                     (1) OJ C 157, 27.6.1990, p. 3.
                                                                     (1) OJ L 49, 24.2.1992, p. 1.
Ð annul the implied decision rejecting complaint
    No R/18/98 submitted on 21 January 1998 by the
    applicant;


title: Case C-42/09: Order of the President of the Court of 2 December 2009 — European Commission v Italian Republic

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/28

         Order of the President of the Court of 2 December 2009 — European Commission v Italian Republic
   (Case C-42/09) (1)

   2010/C 51/48

      Language of the case: Italian

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 69, 21.3.2009.


title: Case T-401/11 P: Judgment of the General Court of 10 July 2014  — Missir Mamachi di Lusignano v Commission (Appeal — Civil service — Officials — Non-contractual liability — Damage sustained by the close relatives of the deceased official — Damage sustained by the official before his death — Respective jurisdictions of the General Court and the Civil Service Tribunal — Rule of correspondence between the claim for compensation and the complaint against the decision dismissing that claim)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/30

         Judgment of the General Court of 10 July 2014 — Missir Mamachi di Lusignano v Commission
   (Case T-401/11 P) (1)

   ((Appeal - Civil service - Officials - Non-contractual liability - Damage sustained by the close relatives of the deceased official - Damage sustained by the official before his death - Respective jurisdictions of the General Court and the Civil Service Tribunal - Rule of correspondence between the claim for compensation and the complaint against the decision dismissing that claim))
   2014/C 292/36
   Language of the case: Italian

      Parties

      Appellant: Livio Missir Mamachi di Lusignano, acting on his own behalf and as the legal representative of the heirs of Alessandro Missir Mamachi di Lusignano, his son, former official of the European Commission (Kerkhove Avelgem, Belgium) (represented by: initially F. Di Gianni, R. Antonini, G. Coppo and A. Scalini, and subsequently by F. Di Gianni, G. Coppo and A. Scalini, lawyers)

      Respondent: European Commission (represented by: D. Martin, B. Eggers and L. Pignataro-Nolin, Agents)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 12 May 2011 in Case F-50/09 Missir Mamachi di Lusignano v Commission, not yet published in the ECR, seeking the setting aside of that judgment.

      Operative part of the judgment

   The General Court:

               1.

               Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 12 May 2011 in Case F-50/09 Missir Mamachi di Lusignano v Commission;

               2.

               Refers Case F-50/09 to the General Court, acting in exercise of its jurisdiction as a court of first instance, under Articles 268 TFEU and 340 TFEU;

               3.

               Reserves the costs.

      (1)  OJ C 282, 24.9.2011.


title: Case F-11/11: Action brought on 9 February 2011 — Vincent Bouillez and Others v Council

text:
               7.5.2011

               EN

               Official Journal of the European Union

               C 139/30

         Action brought on 9 February 2011 — Vincent Bouillez and Others v Council
   (Case F-11/11)
   2011/C 139/56
   Language of the case: French

      Parties

      Applicants: Vincent Bouillez (Overijse, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision of the appointing authority not to promote the applicants to a higher grade for the promotions year 2010

      Form of order sought

               —

               Annul the Council’s decision of 3 November 2010 dismissing the applicants’ complaint;

               —

               In so far as necessary, annul the decisions not to promote the applicants to a higher grade for the promotions year 2010;

               —

               Order the Council to pay the costs.


title: Case C-38/10: Judgment of the Court (Fourth Chamber) of 6 September 2012 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Article 49 TFEU — Tax legislation — Transfer of residence for tax purposes — Transfer of assets — Immediate exit tax)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/2

         Judgment of the Court (Fourth Chamber) of 6 September 2012 — European Commission v Portuguese Republic
   (Case C-38/10) (1)

   (Failure of a Member State to fulfil obligations - Article 49 TFEU - Tax legislation - Transfer of residence for tax purposes - Transfer of assets - Immediate exit tax)
   2012/C 355/02
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: R. Lyal, G. Braga da Cruz and P. Guerra e Andrade, acting as Agents)

      Defendant: Portuguese Republic (represented by: L. Fernandes and J. Menezes Leitão, acting as Agents)

      Interveners in support of the defendant: Kingdom of Denmark (represented by: C. Vang, acting as Agent), Federal Republic of Germany (represented by: C. Blaschke and K. Petersen, acting as Agents), Kingdom of Spain (represented by: M. Muñoz Pérez and A. Rubio González, acting as Agents), French Republic (represented by: G. de Bergues and N. Rouam, acting as Agents), Kingdom of the Netherlands (represented by: C. Wissels and M. de Ree, acting as Agents), Republic of Finland (represented by: J. Heliskoski, acting as Agent), Kingdom of Sweden (represented by: A. Falk and S. Johannesson, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented by: S. Hathaway and A. Robinson, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 49 TFEU and of Article 31 of the EEA Agreement — Provisions of tax legislation by virtue of which companies ceasing to be resident for tax purposes in Portugal or transferring their assets to another State must immediately pay an exit tax

      Operative part of the judgment

   The Court:

               1.

               Declares that, by adopting and maintaining in force Articles 76 A and 76 B of the Corporation Tax Code (Código do Imposto sobre o Rendimento das Pessoas Colectivas), which are applicable in the case of transfer, by a Portuguese company, of its registered office and its effective management to another Member State or in the case of transfer, by a company not resident in Portugal, of some or all of the assets attached to a Portuguese permanent establishment from Portugal to another Member State, and which prescribe the immediate taxation of unrealised capital gains relating to the assets concerned but not of unrealised capital gains resulting from purely national operations, the Portuguese Republic has failed to fulfil its obligations under Article 49 TFEU;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Portuguese Republic to pay the costs.

      (1)  OJ C 80, 27.3.2010.


title: Case C-103/05: Judgment of the Court (Second Chamber) of 13 July 2006 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — Reisch Montage AG v Kiesel Baumaschinen Handels GmbH (Regulation (EC) No 44/2001 — Article 6(1) — Cases where there is more than one defendant — Action brought in a Member State against a person domiciled in that State who is the subject of bankruptcy proceedings and a co-defendant domiciled in another Member State — Inadmissibility of the action against the person who is the subject of bankruptcy proceedings — Jurisdiction of the court seised in relation to the co-defendant)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/12

         Judgment of the Court (Second Chamber) of 13 July 2006 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — Reisch Montage AG v Kiesel Baumaschinen Handels GmbH
   (Case C-103/05) (1)

   (Regulation (EC) No 44/2001 - Article 6(1) - Cases where there is more than one defendant - Action brought in a Member State against a person domiciled in that State who is the subject of bankruptcy proceedings and a co-defendant domiciled in another Member State - Inadmissibility of the action against the person who is the subject of bankruptcy proceedings - Jurisdiction of the court seised in relation to the co-defendant)
   (2006/C 224/21)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: Reisch Montage AG

      Defendant: Kiesel Baumaschinen Handels GmbH
   Re:
   Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Multiple defendants — Action brought in a Contracting State against a first defendant domiciled in that State and a co-defendant domiciled in another Contracting State — Inadmissibility of the action against that first defendant, the subject of bankruptcy proceedings — Jurisdiction of the court seised in relation to the co-defendant
   Operative part of the judgment
   Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in a situation such as that in the main proceedings, that provision may be relied on in the context of an action brought in a Member State against a defendant domiciled in that State and a co-defendant domiciled in another Member State even when that action is regarded under a national provision as inadmissible from the time it is brought in relation to the first defendant.

      (1)  OJ C 132, 28.5.2005.


title: Case T-136/13: Order of the General Court of 14 January 2014 — Hanwha SolarOne and Others v Parliament and Others

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/28

      Order of the General Court of 14 January 2014 — Hanwha SolarOne and Others v Parliament and Others
      (Case T-136/13) (1)

      (2014/C 71/52)
      Language of the case: English
      The President of the Fifth Chamber has ordered that the case be removed from the register.

         (1)  OJ C 123, 27.4.2013.


title: Judgment of the Court (Fourth Chamber) of 3 June 1999 in Case C-417/97: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations - Transferable securities - Investment services - Directive 93/22/EEC - Partial implementation)

text:
17.7.1999               EN                      Official Journal of the European Communities                                            C 204/19
2. In the absence of full harmonisation of language requirements           The decision by a person employed in a consular post to opt, in
    applicable to information appearing on imported products, the          accordance with Article 16(2), first sentence, of Council Regulation
    Member States may adopt national measures requiring such               (EEC) No 1408/71 of 14 June 1971 on the application of social
    information to be given in the language of the area in which the       security schemes to employed persons, to self-employed persons and
    products are sold or in another language which may be readily          to members of their families moving within the Community, as
    understood by consumers in that area, provided that those              amended and updated by Council Regulation (EC) No 118/97 of 2
    national measures apply without distinction to all national and        December 1996, to be subject to the social security legislation of the
    imported products and are proportionate to the objective of            sending Member State of which he is a national does not have the
    consumer protection which they pursue. They must, in particular,       effect that his spouse may no longer claim a social security advantage
    be restricted to information which the Member State makes              which, irrespective of the social cover of her spouse, is guaranteed to
    mandatory and which cannot be appropriately conveyed to                her by the legislation of the Member State in which she resides.
    consumers by means other than translation.
                                                                           (1) OJ C 228 of 26.7.1997.
(1) OJ C 94 of 22.3.1997.
                                                                                JUDGMENT OF THE COURT
                 JUDGMENT OF THE COURT
                                                                                (Fourth Chamber)
                          (Fifth Chamber)
                                                                                of 3 June 1999
                           of 3 June 1999
                                                                           in Case C-417/97: Commission of the European Communi-
in Case C-211/97 (reference for a preliminary ruling from                               ties v Grand Duchy of Luxembourg (1)
the Landessozialgericht Niedersachsen): Paula Gómez
             Rivero v Bundesanstalt für Arbeit (1)
                                                                           (Failure of a Member State to fulfil its obligations —
                                                                           Transferable securities — Investment services — Directive
(Social security — Article 16(2), first sentence, of Regulation
                                                                                93/22/EEC — Partial implementation)
      (EEC) No 1408/71 — Right of option — Effects)
                          (1999/C 204/36)                                                             (1999/C 204/37)
                   (Language of the case: German)                                               (Language of the case: French)
(Provisional translation; the definitive translation will be published     (Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                              in the European Court Reports)
In Case C-211/97: reference to the Court under Article 234                 In Case C-417/97, Commission of the European Communities
EC (ex Article 177) by the Landessozialgericht Niedersachsen               (Agent: Christina Tufvesson) v Grand Duchy of Luxembourg
(Higher Social Court, Lower Saxony) (Germany) for a prelimi-               (Agent: Nicolas Schmit) — application for a declaration that,
nary ruling in the proceedings pending before that court                   by failing to bring into force within the prescribed period all
between Paula Gómez Rivero and Bundesanstalt für Arbeit,                  the laws, regulations and administrative provisions, including
joined party: Federal Republic of Germany — on the interpret-              any relevant sanctions, necessary for it to comply with Council
ation of Article 16(2), first sentence, of Council Regulation              Directive 93/22/EEC of 10 May 1993 on investment services
(EEC) No 1408/71 of 14 June 1971 on the application of                     in the securities field (OJ 1993 L 141, p. 27), the Grand Duchy
social security schemes to employed persons, to self-employed              of Luxembourg has failed to fulfil its obligations under Article
persons and to members of their families moving within the                 31 of that directive — the Court (Fourth Chamber), composed
Community, as amended and updated by Council Regulation                    of: P.J.G. Kapteyn, President of the Chamber, J.L. Murray
(EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) —                   (Rapporteur) and H. Ragnemalm, Judges; A. Saggio, Advocate
the Court (Fifth Chamber), composed of: P. Jann, President of              General; R. Grass, Registrar, has given a judgment on 3 June
the First Chamber, acting as President of the Fifth Chamber,               1999, in which it:
C. Gulmann, D.A.O. Edward (Rapporteur), L. Sevón and
M. Wathelet, Judges; F.G. Jacobs, Advocate General; R. Grass,              1. Declared that, by failing to bring into force within the prescribed
Registrar, has given a judgment on 3 June 1999, in which it                     period all the laws, regulations and administrative provisions,
held that:                                                                      including any relevant sanctions, necessary for it to comply with
 ---pagebreak--- C 204/20                  EN                     Official Journal of the European Communities                                          17.7.1999
     Council Directive 93/22/EEC of 10 May 1993 on investment               1. Declared that, by failing to take, in the old Länder, the steps
     services in the securities field, the Grand Duchy of Luxembourg            necessary to ensure that the quality of bathing water conforms to
     has failed to fulfil its obligations under Article 31 of that              the limit values set under Article 3 of Council Directive
     directive.                                                                 76/160/EEC of 8 December 1975 concerning the quality of
                                                                                bathing water within a period of ten years following its
2. Ordered the Grand Duchy of Luxembourg to pay the costs.                      notification on 10 December 1975, and by not adhering to the
                                                                                minimum sampling frequency prescribed in the annex, the Federal
                                                                                Republic of Germany has failed to fulfil its obligations under
                                                                                Articles 4(1) and 6(1) of that directive:
(1) OJ C 41 of 7.2.1998.
                                                                            2. Ordered the Federal Republic of Germany to pay the costs.
                                                                            (1) OJ C 212 of 12.7.1997.
                   JUDGMENT OF THE COURT
                            (Fifth Chamber)                                                      ORDER OF THE COURT
                             of 8 June 1999                                                          (Second Chamber)
                                                                                of 3 March 1999
in Case C-198/97: Commission of the European Communi-
              ties v Federal Republic of Germany(1)
                                                                            in Case C-315/97 P: Diego Echauz Brigaldi and Others v
                                                                                Commission of the European Communities (1)
(Failure by a Member State to fulfil its obligations —
Directive 76/160/EEC — Quality of bathing water —
Admissibility of an action brought pursuant to Article 226                  (Appeal — Officials — Decisions of the Commission
EC (ex Article 169) — Reasoned opinion — Observance of                      refusing to grant special leave for elections and travelling
the principle of the collegiality of the Commission —                       time — Appeal manifestly inadmissible and manifestly
                                                                                unfounded)
Failure to comply with Articles 4(1) and 6(1) of Directive
                              76/160/EEC)
                                                                                (1999/C 204/39)
                            (1999/C 204/38)
                                                                                (Language of the case: Spanish)
                    (Language of the case: German)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                         In Case C-315/97 P: Diego Echauz Brigaldi, César Montoliu
                                                                            Garcı́a, Marı́a Jesús Ruı́z Monroy, Carmen Ochoa de Michelena,
                                                                            Marı́a Carmen Labrador Rubio and Leopoldo Fabra Utray,
In Case C-198/97, Commission of the European Communities                    officials of the Commission of the European Communities,
(Agent: Claudia Schmidt, assisted by Alexander Böhlke) v                    represented by Ramón Garcı́a-Gallardo Gil-Fournier, of the
Federal Republic of Germany (Agents: Ernst Röder and Claus-                 Burgos and Madrid Bars, with an address for service in Brussels
Dieter Quassowski) — application for a declaration that, by                 at the Chambers of J. and B. Cremades and Associates, 391
failing to take, in the old Länder, the steps necessary to ensure           Avenue Louise — appeal against the judgment of the Court of
that the quality of bathing water conforms to the limit values              First Instance of the European Communities (Fourth Chamber)
set under Article 3 of Council Directive 76/160/EEC of 8                    of 9 July 1997 in Case T-156/95 Echauz Brigaldi and Others v
December 1975 concerning the quality of bathing water (OJ                   Commission [1997] ECR-SC II-509, seeking to have that
1976 L 31, p. 1) within a period of 10 years following its                  judgment set aside, the other parties to the proceedings being
notification on 10 December 1975, and by not adhering to                    the Commission of the European Communities (Agent: Julian
the minimum sampling frequency prescribed in the annex, the                 Currall, assisted by José Rivas Andrés), defendant in the
Federal Republic of Germany has failed to fulfil its obligations            proceedings at first instance, and José Luis Buendı́a Sierra,
under Articles 4(1) and 6(1) of that directive — the Court                  Victoria Pagadigorria Wicke, Miguel Abellán López, Inmacula-
(Fifth Chamber), composed of: J.-P. Puissochet, President of the            da Gil Tardón, Antonio Garcı́a Velázquez, Carmen Casado
Chamber, P. Jann, J.C. Moitinho de Almeida (Rapporteur),                    Salinas, Diego González Marı́n, Eva Marı́a Rasines Martı́n and
C. Gulmann and D.A.O. Edward, Judges; F.G. Jacobs, Advocate                 Julio Vizcarra Soriano, officials of the Commission of the
General; R. Grass, Registrar, has given a judgment on 8 June                European Communities, applicants in the proceedings at first
1999, in which it:                                                          instance — the Court (Second Chamber), composed of:


title: Judgment of the Court (Second Chamber) of  19 January 2006  in Case C-547/03 P Asian Institute of Technology (AIT) v Commission of the European Communities (Appeal — Asia-Invest Programme — Public call for proposals — Contract — Article 111 of the Rules of Procedure of the Court of First Instance — Manifest inadmissibility — No legal interest in bringing proceedings — Article 64 of the Rules of Procedure of the Court of First Instance — Measures of organisation of procedure — Request for production of documents — Parties requested to make written submissions on certain aspects of the proceedings)

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/1

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 19 January 2006
   in Case C-547/03 P Asian Institute of Technology (AIT) v Commission of the European Communities (1)

   (Appeal - Asia-Invest Programme - Public call for proposals - Contract - Article 111 of the Rules of Procedure of the Court of First Instance - Manifest inadmissibility - No legal interest in bringing proceedings - Article 64 of the Rules of Procedure of the Court of First Instance - Measures of organisation of procedure - Request for production of documents - Parties requested to make written submissions on certain aspects of the proceedings)
   (2006/C 74/02)
   Language of the case: French
   In Case C-547/03 P: appeal under Article 56 of the Statute of the Court of Justice lodged on 22 December 2003, by Asian Institute of Technology (AIT), established in Pathumthani (Thailand) (lawyer: H. Teissier du Cros), the other party to the proceedings being Commission of the European Communities (represented by P.J. Kuijper and B. Schöfer, Agents) — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, J. Makarczyk, R. Silva de Lapuerta, P. Kūris and G. Arestis (Rapporteur), Judges; C. Stix-Hackl, Advocate General; K. Sztranc, Administrator, gave a judgment on 19 January 2006, in which it:

               1.

               Dismisses the appeal;

               2.

               Orders the Asian Institute of Technology (AIT) to pay the costs.

      (1)  OJ C 47 of 21. 2. 2004.


title: Case T-139/10: Action brought on 26 March 2010 — Milux v OHIM (REFLUXCONTROL)

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/39

         Action brought on 26 March 2010 — Milux v OHIM (REFLUXCONTROL)
   (Case T-139/10)
   2010/C 148/65
   Language of the case: English

      Parties

      Applicant(s): Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, 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 (Trade Marks and Designs) of 13 January 2010 in case R 1134/2009-4; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: The word mark “REFLUXCONTROL” for goods and services in classes 9, 10 and 44

      Decision of the examiner: Refused the application for a Community trade mark

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.


title: Case F-51/08 RENV: Judgment of the Civil Service Tribunal (First Chamber) of 13 December 2011 — Stols v Council (Civil service — Officials — Referral back to the Tribunal after setting aside — Promotion — 2007 promotion exercise — Consideration of comparative merits — Manifest error of assessment — No manifest error — Grounds for the decision — Supererogatory ground — Inoperative plea)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/43

         Judgment of the Civil Service Tribunal (First Chamber) of 13 December 2011 — Stols v Council
   (Case F-51/08 RENV) (1)

   (Civil service - Officials - Referral back to the Tribunal after setting aside - Promotion - 2007 promotion exercise - Consideration of comparative merits - Manifest error of assessment - No manifest error - Grounds for the decision - Supererogatory ground - Inoperative plea)
   2012/C 32/84
   Language of the case: French

      Parties

      Applicant: Willem Stols (Halsteren, Netherlands) (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer, agent)

      Re:

   Annulment of the decision of the appointing authority not to include the applicant’s name on the list of officials promoted to grade AST 11 for the 2007 promotion exercise.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action brought by Mr Stols;

               2.

               Orders Mr Stols to bear his own costs and to pay those of the Council of the European Union in Case F-51/08.

               3.

               Orders Mr Stols and the Council of the European Union each to bear their own costs in Case T-175/09 and in the present case.

      (1)  OJ C 183, 19.7.2008, p. 34.


               17.2.2011

               EN

               Official Journal of the European Union

               C 50/5

         Request for an Advisory Opinion from the EFTA Court by Oslo tingrett dated 12 October 2010 in the case of Philip Morris Norway AS and Staten/Helse- og omsorgsdepartementet
   (Case E-16/10)
   2011/C 50/05
   A request has been made to the EFTA Court by a letter of 12 October 2010 from Oslo tingrett (Oslo District Court), which was received at the Court Registry on 19 October 2010, for an Advisory Opinion in the case of Philip Morris Norway AS v Staten v/Helse- og omsorgsdepartementet, on the following questions:

               1.

               Shall Article 11 of the EEA Agreement be understood to mean that a general prohibition against the visible display of tobacco products constitutes a measure having equivalent effect to a quantitative restriction on the free movement of goods?

               2.

               Assuming there is a restriction, which criteria would be decisive to determine whether a display prohibition, based on the objective of reduced tobacco use by the public in general and especially amongst young people, would be suitable and necessary having regard to public health?


title: Case T-197/01: Action brought on 14 August 2001 by Société Coopérative Agricole GIPAM against Commission of the European Communities

text:
C 303/24                EN                    Official Journal of the European Communities                                    27.10.2001
The Commission has now decided to open a procedure under                 18 and 23 years after the amendments in question, would
Article 88(2) EC, qualifying the legislation in question as              violate the principle of legal certainty and the legitimate
non-notified new aid. According to the Commission, the                   expectations of the applicant. The time-limit set in
amendments made to the legislation in 1979 and 1983,                     Article 1(b)(iv) of Regulation No 659/1999 for regarding state
following the United Kingdom’s accession to the European                 aid as new aid expired long ago. This principle should,
Communities, were substantial modifications, so that the entire          according to the applicant, also apply in equity to the
scheme had to be qualified as new aid. That decision is now              Commission’s review of alterations to existing aid schemes, as
contested by the applicant.                                              is the case here.
                                                                         Finally, the applicant states that the Commission’s investigation
According to the applicant, the Commission has violated                  prior to the decision was too lengthy, and therefore constitutes
Gibraltar’s rights of defence, by providing an insufficient              a breach of the Commission’s duty to exercise due diligence
statement of the reasons for the contested decision and by               and of the principle of good administration.
insufficiently hearing the Government of Gibraltar as the party
directly and individually concerned by the decision. In addition,
the Commission has violated the United Kingdom’s rights of
defence, in so far as they constitute essential procedural
requirements.
                                                                         Action brought on 14 August 2001 by Société Coopéra-
Further, the applicant claims that the decision is incompatible          tive Agricole GIPAM against Commission of the European
with Article 88 of the EC Treaty and that the Commission has                                       Communities
violated the principle of proportionality and the principles of
legal certainty and legitimate expectations, as well as failing to
fulfil its duty to exercise due diligence.                                                        (Case T-197/01)
                                                                                (2001/C 303/39)
According to the applicant, the legislation in question cannot
be qualified as new aid since that legislation already existed                              (Language of the case: French)
prior to the accession of the United Kingdom to the European
Community, and because the later 1976 and 1983 amend-
ments did not alter the legislation substantially. It should             An action against the Commission of the European Communi-
therefore rather be considered as existing aid under Article 88          ties was brought before the Court of First Instance of the
(1) EC.                                                                  European Communities on 14 August 2001 by Société
                                                                         Coopérative Agricole GIPAM, whose registered office is at
                                                                         Ducos (France), represented by Alain Lorang, Hubert Mazingue
                                                                         and Patrick Leroyer Gravet, lawyers, with an address for service
                                                                         in Luxembourg.
To proceed now under Article 88(2) EC in respect of new aid
would be to impose an unjustified burden with possibly
grave consequences, especially since an investigation under              The applicant claims that the Court should:
Article 88(1) EC Treaty would, for the applicant, constitute a
measure having a comparable effect and less severe conse-
quences. In addition, having regard to the time which has                —     annul Commission Regulation No 896/2001 of 7 May
elapsed since the amendments in question were adopted, the                     2001;
applicant finds the decision disproportionate. In this respect,
the applicant also points out that the amendments in question            —     order the defendant to pay the costs.
are severable from the rest of the tax system and that there is
therefore no need to call in question the entire system.
                                                                         Pleas in law and main arguments
The applicant further claims that since the accession of the
United Kingdom to the European Communities, and since the                In support of its arguments, the applicant claims that the
time when the amendments in question were made, the                      regulation at issue (1) does not comply with Council Regulation
interpretation of ‘state aid’ under EC law has evolved, especially       No 404/1993 (2) for whose application the contested regu-
in relation to fiscal measures. At that time, that type of measure       lation lays down detailed rules. According to the applicant,
was, according to the applicant, not generally regarded as               those rules adversely affect the rights acquired by the applicant
falling within the rules of the EC Treaty concerning state aid.          under the earlier regulations adopted to implement Regulation
There was therefore no reason to notify the legislation at that          No 404/1993. Under those earlier regulations, the applicant
time. To regard that legislation as new aid now, respectively            was characterised as a traditional importer, which is no longer
 ---pagebreak--- 27.10.2001             EN                     Official Journal of the European Communities                                      C 303/25
the case under the present regulation. Thus the Commission               the applicant obtained three of the twelve production lines of
has distorted competition and discriminated between those                that company. A condition of the transfer of ownership was
undertakings able to satisfy the references laid down in the             the agreement by the German Federal State Thüringia to grant
new implementing regulation and the remaining undertakings.              an additional investment subsidy of DEM 4 000 000 in the
                                                                         framework of the ‘joint Federal Government/Länder scheme
                                                                         for improving regional economic structures’, whereby the
(1) Commission Regulation (EC) No 896/2001 of 7 May 2001                 burden on the applicant owing to the purchase price would be
    laying down detailed rules for applying Council Regulation (EEC)     reduced by that amount. The promise was not fulfilled.
    No 404/93 as regards the arrangements for importing bananas
    into the Community (OJ L 126, 08/5/2001, p. 6).
(2) Council Regulation (EEC) No 404/93 of 13 February 1993 on the
    common organization of the market in bananas (OJ L 47,
    25/2/1993, p. 1).
                                                                         Subsequently the applicant acquired a fourth production
                                                                         line. In February 1998, because of the applicant’s liquidity
                                                                         problems, the German Treuhandanstalt waived payment of
                                                                         DEM 4 000 000 of the purchase price under the 1994
                                                                         contract. In December 1998 Germany notified the Com-
                                                                         mission of various measures whose aim was the financial
                                                                         consolidation and long-term profitability of the applicant, and
Action brought on 28 August 2001 by Technische Glas-                     included the purchase price waiver, which the Commission
werke Ilmenau GmbH against the Commission of the                         has declared incompatible with the common market in the
                    European Communities                                 contested decision.
                         (Case T-198/01)
                         (2001/C 303/40)                                 The applicant claims that the purchase price waiver was not
                                                                         aid. The purpose of the purchase price waiver was to put the
                  (Language of the case: German)                         applicant in the position it would have been in if the full
                                                                         amount promised had been paid. That promise founded a
                                                                         claim for payment and a legitimate expectation. Moreover, it
                                                                         would not have infringed the aid rules if the Treuhandanstalt
An action against the Commission of the European Communi-
                                                                         had agreed with the applicant in 1994 on a purchase price
ties was brought before the Court of First Instance of the
                                                                         that was lower by DEM 4 000 000. The argument that the loss
European Communities on 28 August 2001 by Technische
                                                                         of the additional aid of DEM 4 000 000 is legally irrelevant,
Glaswerke Ilmenau GmbH, Ilmenau (Germany), represented by
                                                                         because the Treuhandanstalt and the Federal State of Thüringia
G. Schohe, lawyer, with an address for service in Luxembourg.
                                                                         are different legal persons, is not a sound one.
The applicant claims that the Court should:
—     Annul the Commission Decision of 12 June 2001 on
      German State aid to Technische Glaswerke Ilmenau                   Moreover, the applicant claims that the Commission wrongly
      GmbH, Germany — K(2001) 1549;                                      applied the private investor test. It ought to have examined
                                                                         whether the purchase price waiver could have led in the long-
—     Order the defendant to pay the costs of the proceedings.           term to the applicant’s profitability. Furthermore, the purchase
                                                                         price waiver has not led to a further, additional loss of State
                                                                         assets, but is merely a method chosen by Germany to fulfil its
                                                                         1994 promise.
Pleas in law and main arguments
The action concerns the Commission’s decision declaring State
aid of DEM 4 000 000 by Germany to the applicant to be                   In the alternative, the applicant submits that the determination
incompatible with the common market.                                     of the amount of the aid element is incorrect. The Commission
                                                                         failed to determine the amount by reference to positive
                                                                         findings of fact. Germany has also avoided losses which would
The application states that the Werk für Technisches Glas                have arisen without the purchase price waiver, because the
Ilmenau, a State-owned company, was the centre of glass                  applicant would have become bankrupt if the Treuhandanstalt
manufacture in the GDR and after unification of the Federal              had claimed the full amount of the purchase price. Further-
Republic of Germany and the German Democratic Republic                   more, the Commission estimated the amount of the aid
was converted into the Ilmenauer Glaswerke GmbH. In 1994                 element at a sum which contradicts its own findings.


title: Case C-438/10: Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 13 September 2010 — Lilia Druțu v Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/13

         Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 13 September 2010 — Lilia Druțu v Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău
   (Case C-438/10)
   ()
   2010/C 328/23
   Language of the case: Romanian

      Referring court

   Curtea de Apel Bacău

      Parties to the main proceedings

      Applicant: Lilia Druțu

      Defendants: Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

      Questions referred

               1.

               Does the first paragraph of Article 110 TFUE (formerly Article 90 EC) preclude the levying of a domestic tax on the registration for the first time in Romania of motor vehicles already registered in another Member State of the European Union, while motor vehicles already registered in Romania may be the subject of transactions without the imposition of such a tax?

               2.

               Since the second paragraph of Article 110 TFEU is intended to eliminate factors liable to protect the national market and infringe the principles of competition which govern the Community market, does the introduction of exemptions from the obligation to pay the pollution tax, whose scope also covers motor vehicles produced in Romania, constitute a measure to protect the national motor vehicle manufacturing sector?


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber) of 7 July 1998 in Joined Cases T-116/96, T-212/96 and T-215/96: Italo Telchini and Others v Commission of the European Communities (Officials - Pensions - Weighting - Determination - Exchange rate - Retroactive adjustment)

text:
C 258/32              EN                 Official Journal of the European Communities                                     15.8.98
  JUDGMENT OF THE COURT OF FIRST INSTANCE                             JUDGMENT OF THE COURT OF FIRST INSTANCE
                      (Second Chamber)                                                     of 17 June 1998
                                                                    in Case T-135/96: Union EuropeÂenne de l'Artisanat et des
                        of 7 July 1998
                                                                    Petites et Moyennes Entreprises (UEAPME) v Council of
in Joined Cases T-116/96, T-212/96 and T-215/96: Italo                                 the European Union (1)
Telchini and Others v Commission of the European                    (Agreement on social policy Ð Annulment of a directive
                       Communities (1)                              Ð Whether action admissible Ð Status of management
                                                                    and labour in the process for the adoption of the directive
(Officials Ð Pensions Ð Weighting Ð Determination Ð
          Exchange rate Ð Retroactive adjustment)                          Ð Representativity of management and labour)
                                                                                (98/C 258/55)
                        (98/C 258/54)
                                                                                (Language of the case: French)
                (Language of the case: Italian)
                                                                    In Case T-135/96: Union EuropeÂenne de l'Artisanat et des
                                                                    Petites et Moyennes Entreprises (UEAPME), established in
                                                                    Brussels, represented by Francis Herbert and Daniel
In Joined Cases T-116/96, T-212/96 and T-215/96: Italo              Tomasevic, of the Brussels Bar, and GenevieÁve Tuts, of the
Telchini, former official of the Commission of the                  LieÁge Bar, with an address for service in Luxembourg at
European Communities, residing in Bolzano (Italy),                  the Chambers of Carlos Zeyen, 67 Rue Ermesinde,
represented by Bruno Telchini, of the Bolzano Bar, with an          supported by ConfeÂdeÂration GeÂneÂrale des Petites et
address for service in Luxembourg at the Chambers of                Moyennes Entreprises et du Patronat ReÂel (CGPME),
Becker & Cahen, 3 Rue des Foyers, Enrico Palermo,                   established in Puteaux (France), Union Professionelle
former official of the Commission of the European                   Artisanale (UPA), established in Paris, Nationaal
Communities, residing at Rome, Fabrizio Gillet, former              Christelijk Middenstandsverbond (NCMV), established in
official of the Commission of the European Communities,             Brussels,    Koninklijke     Vereniging MKB-Netherland,
residing at Rome, represented by Giuseppe Marchesini,               established in Delft (Netherlands), FeÂdeÂration des Artisans,
advocate with the right of audience before the Corte                established in Luxembourg, Confederazione Generale
Suprema di Cassazione, with an address for service in               Italiana del Artigianato (Confartigianato), established in
Luxembourg at the Chambers of Ernst Arendt, 8-10 Rue                Rome, Wirtschaftskammer Österreich, established in
Mathias Hardt, against Commission of the European                   Vienna, Bundesvereinigung der Fachverbände des
Communities (Agent: Gianluigi Valsesia), supported by               Deutschen Handwerks eV (BFH), established in Bonn
Council of the European Communities (Agents: in Case                (Germany), represented by Paul Beghin, of the
T-116/96, Diego Canga Fano, Marco-Umberto Moricca                   Luxembourg Bar, with an address for service at his
and Paolo Martino Cossu and, in Cases T-212/96 and                  Chambers, 67 Rue Ermesinde v Council of the European
T-215/96, Martin Bauer and Paolo Martino Cossu) Ð                   Union (Agent: FreÂdeÂric Anton), supported by the
first, application for annulment of the applicants' pension         Commission of the European Communities (Agent: Maria
statements in respect of the period from 1 July 1995 to             Patakia) Ð application for annulment of Council Directive
31 December 1995 inclusive, in so far as they apply with            96/34/EC of 3 June 1996 on the framework agreement on
retroactive effect the weighting fixed for Italy at 81.7 by         parental leave concluded by the Union des ConfeÂdeÂrations
Council Regulation (EC, Euratom, ECSC) No 2963/95 of                de l'Industrie et des Employeurs d'Europe (UNICE), the
18 December 1995 adjusting the remuneration of pensions             Centre EuropeÂen de l'Entreprise Publique (CEEP) and the
of officials and other servants of the European                     ConfeÂdeÂration EuropeÂenne des Syndicats (ETUC) (OJ
Communities and the weightings applied thereto (OJ L 310            L 145 of 19.6.1996, p. 4) Ð the Court of First Instance
of 22.12.1995, p. 1) and, secondly, applications for                (Fourth Chamber, Extended Composition), composed of P.
adjustment of the statements in question and a claim in             Lindh, President, R. García-Valdecasas, K. Lenaerts, J. D.
damages Ð the Court of First Instance (Second Chamber),             Cooke and M. Jaeger, Judges; A. Mair, Administrator, for
composed of A. Kalogeropoulos, President, C. W. Bellamy             the Registrar, gave a judgment on 17 June 1998, in which
and J. Pirrung, Judges; H. Jung, Registrar, gave a                  it:
judgment on 7 July 1998, in which it:
                                                                    1. Dismisses the application as inadmissible;
1. Dismisses the actions.
                                                                    2. Orders the applicant and the parties which have
                                                                         intervened in support of the form of order sought by it
                                                                         to pay the costs incurred by the Council;
2. Orders the parties to bear their own costs.
                                                                    3. Orders the Commission to bear its own costs.
(1) OJ C 370 of 7.12.1996 and C 94 of 22.3.1997.
                                                                    (1) OJ C 318 of 26.10.1996.


title: Case T-49/05: Action brought on 31 January 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               30.4.2005

               EN

               Official Journal of the European Union

               C 106/27

         Action brought on 31 January 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-49/05)
   (2005/C 106/59)
   Language of the case: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 31 January 2005 by Reckitt Benckiser N.V., established in Hoofddorp (the Netherlands) represented by G.S.P. Vos, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision adopted on 11 November 2004 by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

               —

               allow registration of the Community trade mark 2 792 554;

               —

               order the Office for Harmonisation in the Internal Market to pay the costs.

         Pleas in law and main arguments

               Community trade mark concerned:

               A three-dimensional mark consisting of the shape of the product being a rectangular tablet consisting of a blue top layer with red speckles and in it a sunken shining mother of pearl ball and a lower white layer with green speckles, for goods in class 1 (water softeners etc.) and 3 (laundry preparations etc.)

               Decision of the examiner:

               Refusal of registration

               Decision of the Board of Appeal:

               Dismissal of the appeal

               Pleas in law:

               Misapplication of Article 7(1)(b) of Regulation (EC) No 40/94 (1)

               Misapplication of Article 7(1)(c) of Regulation (EC) No 40/94

      (1)  Council Regulation (EC) No 40/94 of 20.12.1993 on the Community trade mark (OJ L 11, p. 1).


title: Judgment of the Court of 12 July 2001 in Joined Cases C-302/99 P and C-308/99 P: Commission of the European Communities v Télévision Française 1 SA (TF1) (Appeal — Inoperative plea — Challenge to the grounds of a judgment that has no effect on the operative part of the judgment — Liability for costs)

text:
13.10.2001                EN                       Official Journal of the European Communities                                            C 289/3
for a preliminary ruling in the proceedings pending before that                     difficulties, account must be taken of the good faith of the
court between Paraskevas Louloudakis and Elliniko Dimosio                           offender when determining the penalty actually imposed on
— on the interpretation of Council Directive 83/182/EEC of                          him.
28 March 1983 on tax exemptions within the Community for
certain means of transport temporarily imported into one
Member State from another (OJ 1983 L 105, p. 59) — the                        (1) OJ C 314 of 30.10.1999.
Court (Sixth Chamber), composed of: C. Gulmann (Rappor-
teur), President of the Chamber, V. Skouris, J.-P. Puissochet,
R. Schintgen and F. Macken, Judges; S. Alber, Advocate
General; L. Hewlett, Administrator, for the Registrar, has given
a judgment on 12 July 2001, in which it has ruled:
1.    Article 7(1) of Council Directive 83/182/EEC of 28 March                                   JUDGMENT OF THE COURT
      1983 on tax exemptions within the Community for certain
      means of transport temporarily imported into one Member
      State from another must be interpreted as meaning that, where                                        of 12 July 2001
      a person has both personal and occupational ties in two
      Member States, his normal residence, determined in the context
      of an overall assessment by reference to all the relevant facts, is     in Joined Cases C-302/99 P and C-308/99 P: Commission
      that where the permanent centre of interests of that person is          of the European Communities v Télévision Française 1
      located; in the event that such an overall assessment does not                                         SA (TF1) (1)
      result in its determination, primacy must be given to personal
      ties.
                                                                              (Appeal — Inoperative plea — Challenge to the grounds of
                                                                              a judgment that has no effect on the operative part of the
                                                                                judgment — Liability for costs)
2.    National legislation which provides, in the event of infringement
      of the temporary importation arrangements laid down by                                              (2001/C 289/05)
      Directive 83/182, for a series of penalties including, in
      particular:
                                                                                (Language of the case: French)
                                                                              (Provisional translation; the definitive translation will be published
      —      fines set at a flat rate on the basis of the sole criterion of                        in the European Court Reports)
             the vehicle’s cubic capacity, without taking its age into
             account,
                                                                              In Joined Cases C-302/99 P and C-308/99 P: Commission
                                                                              of the European Communities (Agents: G. Marenco and
                                                                              K. Wiedner) and French Republic (Agents: K. Rispal-Bellanger
                                                                              and F. Million), supported by Kingdom of Spain (Agent:
      —      increased duty which can amount to up to ten times the           R. Silva de Lapuerta) — appeal against the judgment of the
             taxes in question,                                               Court of First Instance of the European Communities (Third
                                                                              Chamber, Extended Composition) of 3 June 1999 in Case
                                                                              T-17/96 TF1 v Commission [1999] ECR II-1757, seeking to
                                                                              have that judgment partially set aside, the other party to the
                                                                              proceedings being: Télévision Française 1 SA (TF1), established
      is compatible with the principle of proportionality only in so far      in Paris, France, (lawyers: G. Vandersanden, J.-P. Hordies and
      as it is made necessary by overriding requirements of enforcement       A. Maqua), the Court, composed of: G.C. Rodrı́guez Iglesias,
      and prevention, when gravity of the infringement is taken into          President, C. Gulmann, A. La Pergola, M. Wathelet, V. Skouris
      account.                                                                (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet,
                                                                              P. Jann, L. Sevón (Rapporteur), R. Schintgen, F. Macken,
                                                                              N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
                                                                              C.W.A. Timmermans, Judges; J. Mischo, Advocate General;
                                                                              D. Louterman-Hubeau, Head of Division, for the Registrar, has
3.    In proceedings concerning infringements relating to temporary           given a judgment on 12 July 2001, in which it:
      importation of certain means of transport, neither Directive
      83/182 nor other rules of Community law prevent its being
                                                                              1.    Dismisses the appeals;
      excluded that ignorance of the applicable rules should lead to
      automatic exoneration from all penalties. None the less, where
      determination of the arrangements applicable has given rise to          2.    Orders the Commission to pay the costs of Case C-302/99 P;
 ---pagebreak--- C 289/4                  EN                     Official Journal of the European Communities                                          13.10.2001
3.    Orders the French Republic to pay the costs of Case C-308/99                          JUDGMENT OF THE COURT
      P;
4.    Orders the Kingdom of Spain to bear its own costs in both                                       of 12 July 2001
      actions.
                                                                           in Case C-189/01 (reference for a preliminary ruling from
(1) OJ C 299 of 16.10.1999.                                                the College van Beroep voor het bedrijfsleven): H. Jippes,
                                                                           Afdeling Groningen van de Nederlandse Vereniging tot
                                                                           Bescherming van Dieren and Afdeling Assen en omstre-
                                                                           ken van de Nederlandse Vereniging tot Bescherming
                                                                           van Dieren v Minister van Landbouw, Natuurbeheer en
                                                                                Visserij (1)
                 JUDGMENT OF THE COURT                                     (Agriculture — Control of foot-and-mouth disease — Pro-
                                                                           hibition of vaccination — Principle of proportionality —
                           (Fifth Chamber)                                               Taking animal welfare into account)
                            of 12 July 2001                                                          (2001/C 289/07)
in Case C-365/99: Portuguese Republic v Commission of
                 the European Communities (1)                                                  (Language of the case: Dutch)
(Agriculture — Animal health — Emergency measures to                       (Provisional translation; the definitive translation will be published
combat bovine spongiform encephalopathy — ‘Mad cow’                                           in the European Court Reports)
                                disease)
                           (2001/C 289/06)                                 In Case C-189/01: reference to the Court under Article 234
                                                                           EC from the College van Beroep voor het bedrijfsleven
                                                                           (Netherlands), for a preliminary ruling in the proceedings
                  (Language of the case: Portuguese)                       pending before that court between H. Jippes, Afdeling Gronin-
                                                                           gen van de Nederlandse Vereniging tot Bescherming van
(Provisional translation; the definitive translation will be published     Dieren and Afdeling Assen en omstreken van de Nederlandse
                    in the European Court Reports)                         Vereniging tot Bescherming van Dieren and Minister van
                                                                           Landbouw, Natuurbeheer en Visserij — on the interpretation
                                                                           of the validity of Article 13 of Council Directive 85/511/EEC
In Case C-365/99: Portuguese Republic (Agents: L. Fernandes                of 18 November 1985 introducing Community measures for
and M.J. Abecassis, assisted by C. Aguiar, T. Ferreira de                  the control of foot-and-mouth disease (OJ 1985 L 315, p. 11),
Lima and G. van der Wal) v Commission of the European                      as amended by Council Directive 90/423/EEC of 26 June 1990
Communities — application for annulment of Commission                      (OJ 1990 L 224, p. 13), and of Commission Decision
Decision 99/517/EC of 28 July 1999 amending Decision                       2001/246/EC of 27 March 2001 laying down the conditions
98/653/EC concerning emergency measures made necessary                     for the control and eradication of foot-and-mouth disease in
by the occurrence of bovine spongiform encephalopathy in                   the Netherlands in application of Article 13 of Directive
Portugal (OJ 1999 L 197, p. 45), in so far as it extends until             85/511/EEC (OJ 2001 L 88, p. 21), as amended by Commission
1 February 2000 the restriction on exports prescribed by                   Decision 2001/279/EC of 5 April 2001 (OJ 2001 L 96, p. 19)
Article 4 of Commission Decision 98/653/EC of 18 November                  — the Court, composed of: G.C. Rodrı́guez Iglesias, President,
1998 concerning emergency measures made necessary by the                   C. Gulmann, A. La Pergola, M. Wathelet, V. Skouris (Presidents
occurrence of bovine spongiform encephalopathy in Portugal                 of Chambers), D.A.O. Edward, P. Jann, L Sevón (Rapporteur),
(OJ 1998 L 311, p. 23) — the Court (Fifth Chamber),                        R. Schintgen, F. Macken, N. Colneric, S. von Bahr and
composed of: A. La Pergola, President of the Chamber,                      J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
M. Wathelet, D.A.O. Edward, L. Sevón (Rapporteur) and S. von              H.A. Rühl, Principal Administrator, for the Registrar, has given
Bahr, Judges; J. Mischo, Advocate General; H.A. Rühl, Principal            a judgment on 12 July 2001, in which it has ruled:
Administrator, for the Registrar, has given a judgment on
12 July 2001, in which it:
                                                                           1.    Consideration of the first question has not disclosed any factor
1.    Dismisses the action;                                                      of such a kind as to affect the validity of Article 13 of Council
                                                                                Directive 85/511/EEC of 18 November 1985 introducing
2.    Orders the Portuguese Republic to bear its own costs.                      Community measures for the control of foot-and-mouth disease,
                                                                                as amended by Council Directive 90/423/EEC of 26 June
                                                                                1990.
(1) OJ C 366 of 18.12.1999.
                                                                           2.    Consideration of the second question has not disclosed any
                                                                                factor of such a kind as to affect the validity of Commission


title: Case T-84/06: Action brought on  13 March 2006  — Onderlinge Waarborgmaatschappij Azivo Algemeen Ziekenfonds De Volharding v Commission

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/27

         Action brought on 13 March 2006 — Onderlinge Waarborgmaatschappij Azivo Algemeen Ziekenfonds De Volharding v Commission
   (Case T-84/06)
   (2006/C 108/48)
   Language of the case: Dutch
   Parties

      Claimant: Onderlinge Waarborgmaatschappij Azivo Algemeen Ziekenfonds De Volharding U.A. (The Hague, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the Commission decision of 3 May 2005 in Cases N 541/2004 and N 542/2004;

               —

               Order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The claimant is a healthcare insurance body with approximately 150 000 affiliated policyholders. Those policyholders require, as a general rule, more extensive healthcare services than the average person insured in the Netherlands. As a result, the claimant has over an extended period of time been achieving less positive results than other healthcare insurance bodies. The claimant argues that these negative results stem from shortcomings in the equalisation system.
   In its action the claimant challenges the Commission decision (1) to authorise under Articles 87 EC and 88 EC the aid measures which the Netherlands notified in the context of the new healthcare insurance scheme. Those aid measures relate to the retention of financial reserves by healthcare insurance funds and the risk equalisation system (2).
   According to the claimant, the Commission committed errors of appraisal in regard to the operation of the equalisation system and inadequately investigated the matter. The claimant submits that the decision is in this respect at variance with Article 86(2) EC and is incomprehensible, or at the very least inadequately reasoned.
   The Commission has also, the claimant alleges, improperly approved the risk equalisation system on the basis of Article 86(2) EC. Because of the shortcomings in the equalisation system the compensation provided for a number of healthcare insurers is, it submits, higher than is necessary to cover the costs of meeting their public service obligation, whereas the position for a number of other healthcare insurers is that they are inadequately compensated by reason of those shortcomings.
   The claimant submits further that, in view of the complexity of the aid scheme notified, the Commission ought to have initiated the formal investigation procedure set out in Article 88(2) EC. The Commission must at any rate have had serious difficulties during the initial investigation procedure under Article 88(3) EC in determining whether the aid scheme was compatible with the common market in view of the fact that it did not have sufficient information at its disposal.
   In conclusion, the claimant contends that, in adopting the contested decision, the Commission improperly failed to take account of the fact that the new Netherlands healthcare scheme is incompatible with the non-life insurance directive (3) and with Articles 43 EC and 49 EC. The claimant particularly refers in this connection to the provisions of the new healthcare scheme relating to the prohibition of premium differentials, the duty of acceptance and the risk equalisation system. The claimant also takes the view that the Commission has, unlawfully and contrary to Article 253 EC, failed to provide reasons to substantiate its view that the third non-life insurance directive and Articles 43 EC and 49 EC, taken in conjunction with Articles 87 EC and 86(2) EC, do not stand in the way of the notified State aid.

      (1)  OJ 2005 C 324, p. 28.

      (2)  Aid measures N 541/2004 and N 542/2004.

      (3)  Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amendingDirectives 73/239/EEC and 88/357/EEC (third non-life insurance directive) (OJ L 228, p. 1).


title: Case C-235/16: Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 25 April 2016 — Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Consejo de Gobierno del Principado de Asturias

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/23

         Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 25 April 2016 — Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Consejo de Gobierno del Principado de Asturias
   (Case C-235/16)
   (2016/C 260/29)
   Language of the case: Spanish

      Referring court

   Tribunal Supremo, Sala de lo Contencioso-Administrativo, Sección Segunda

      Parties to the main proceedings

      Appellant: Asociación Nacional de Grandes Empresas de Distribución (ANGED)

      Respondent: Consejo de Gobierno del Principado de Asturias

      Questions referred

               1.

               Must Article 49 TFEU and Article 54 TFEU be interpreted as precluding a regional tax levied on the operation of large retail establishments with a public display and sales area equal to or exceeding 4 000 m2 on account of their impact on the territory, environment and urban trading area of that region, but which applies regardless of whether the retail establishments are actually situated inside or outside the consolidated urban area and is borne in most cases by undertakings of other Member States, bearing in mind that the tax (i) does not affect traders who own several retail establishments, whether of an individual or collective nature, with a public display and sales area of less than 4 000 m2 irrespective of the total public display and sales area of all their establishments; and (ii) is not levied on large retail establishments of an individual nature, with a public display and sales area not exceeding 10 000 m2, which solely and exclusively pursue the business of a garden centre or of selling vehicles, construction materials, machinery or industrial supplies?

               2.

               Must Article 107(1) TFEU be interpreted as meaning that the following constitutes State aid prohibited under that provision: the non-imposition of Asturian IGEC on retail establishments, individual or collective, with a public display and sales area of less than 4 000 m2 and individual large retail establishments, with a public display and sales area not exceeding 10 000 m2, which solely and exclusively pursue the business of a garden centre or of selling vehicles, construction materials, machinery or industrial supplies?


title: Case T-63/10: Judgment of the General Court of 3 October 2012 — Jurašinović v Council (Access to documents — Regulation (EC) No 1049/2001 — Request for access to certain documents exchanged with the International Criminal Tribunal for the former Yugoslavia during proceedings — Refusal to grant access — Risk of undermining the protection of international relations — Risk of undermining the protection of judicial proceedings and legal advice)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/23

         Judgment of the General Court of 3 October 2012 — Jurašinović v Council
   (Case T-63/10) (1)

   (Access to documents - Regulation (EC) No 1049/2001 - Request for access to certain documents exchanged with the International Criminal Tribunal for the former Yugoslavia during proceedings - Refusal to grant access - Risk of undermining the protection of international relations - Risk of undermining the protection of judicial proceedings and legal advice)
   2012/C 355/49
   Language of the case: French

      Parties

      Applicant: Ivan Jurašinović (Angers, France) (represented by: N. Amara-Lebret, lawyer)

      Defendant: Council of the European Union (represented by: initially C. Fekete and K. Zieleśkiewicz, subsequently C. Fekete and J. Herrmann)

      Re:

   By way of principal claim, annulment of the Council’s decision of 7 December 2009 refusing it access to the Council’s decisions relating to the transmission to the International Criminal Tribunal for the former Yugoslavia of the documents which that Tribunal requested in connection with the proceedings relating to Mr Ante Gotovina and all the correspondence exchanged in that connection by the EU Institutions and that Tribunal, including any annexes, and particularly the initial requests for documents from both that Tribunal and Mr Gotovina’s lawyers.

      Operative part of the judgment

   The Court:

               1.

               Annuls the Council’s decision of 7 December 2009 refusing Mr Ivan Jurašinović access to the Council’s decisions relating to the transmission to the International Criminal Tribunal for the former Yugoslavia of the documents which that Tribunal requested in connection with the proceedings relating to Mr Ante Gotovina and all the correspondence exchanged in that connection by the EU Institutions and that Tribunal, including any annexes, and particularly the initial requests for documents from both that Tribunal and Mr Gotovina’s lawyers, in so far as he was refused access to correspondence between the Council and that Tribunal, and to documents other than the reports drawn up by the European Community’s surveillance mission, annexed to that correspondence;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 113, 1.5.2010.


title: Case T-223/10: Action brought on 20 May 2010 — Regione Puglia v Commission

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/56

         Action brought on 20 May 2010 — Regione Puglia v Commission
   (Case T-223/10)
   2010/C 179/95
   Language of the case: Italian

      Parties

      Applicant: Regione Puglia (Bari, Italy) (represented by: F. Brunelli and A. Aloia, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul Debit Note No 3241001630 of the European Commission of 26 February 2010.

               —

               Order the Commission to pay the costs, including a fixed amount for general costs.

      Pleas in law and main arguments

   The present action is brought against the debit note issued by the Commission on 26 February 2010 in implementation of Decision C(2009) 10350 of 22 December 2009 concerning the cancellation of part of the contribution from the European Regional Development Fund (ERDF) allocated to the operational programme POR Puglia Obiettivo 1 2000-2006. That decision was challenged by the Regione Puglia and by Italy in Case T-84/10 (1) and Case T-117/10 (2) respectively.
   In support of its claims, the applicant puts forward the following pleas:

               —

               Decision C(2009) 10350 of 22 December 2009 is unlawful, on the basis of the pleas in law and main arguments already relied on in Case T-84/10.

               —

               Infringement of Article 7(2) of Commission Regulation (EC) No 448/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the procedure for making financial corrections to assistance granted under the Structural Funds, (3) which provides for the application of a rate of interest of 1,5 % above the rate applied by the European Central Bank in its main refinancing operations, since the contested debit note provides that the rate of interest to be charged is that published in the OJEU on 1 April 2010, increased by 3,5 %.

      (1)  OJ C 113, 1.5.10, p. 58.

      (2)  Not yet published in the OJ.

      (3)  OJ L 64, 6.3.2001, p. 13.


title: Case C-437/15 P: Appeal brought on 10 August 2015 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment of the General Court (Third Chamber) delivered on 4 June 2015 in Case T-222/14, Deluxe Laboratories v OHIM (Deluxe)

text:
               19.10.2015

               EN

               Official Journal of the European Union

               C 346/9

         Appeal brought on 10 August 2015 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment of the General Court (Third Chamber) delivered on 4 June 2015 in Case T-222/14, Deluxe Laboratories v OHIM (Deluxe)
   (Case C-437/15 P)
   (2015/C 346/11)
   Language of the case: Spanish

      Parties

      Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: S. Palmero Cabezas, acting as Agent)

      Other party to the proceedings: Deluxe Laboratories, Inc.

      Form of order sought

   OHIM claims that the Court should:

               —

               annul the judgment under appeal;

               —

               order the applicant before the General Court to pay the costs.

      Grounds of appeal and main arguments

   OHIM claims that the judgment under appeal should be annulled since the General Court infringed the first sentence of Article 75 of the CTMR (1) in combination with Article 7(1)(b) and (2) of the CTMR, for reasons which may be summarised as follows:

               1.

               The General Court erred in excluding the possibility of a general statement of reasons for various products and services when the perception of the sign in respect of each of them is uniform and, consequently, the reasoning applicable in respect of each of them is invariable.

               2.

               To require OHIM to repeat systematically the same reasoning for each of the products or services, or uniform categories of products or services, amounts to making the duty to state reasons a purely formal obligation.

               3.

               The Board of Appeal expressly identified the reasons for which the sign, in relation to any of the products and services in question, would be perceived solely as an indication of the superior quality of that product or service.

               4.

               It is sufficient that the products and services have a common feature in order to make possible a statement of reasons in respect of all of them, if the sign lacks distinctive character as a result of that feature. In the present case, that common feature is that each of the products and services in question, without exception, are capable of being of high or low quality, with the result that the indication of superior quality is perceived in respect of each and every one of them as a mere selling point.

               5.

               The General Court erred in its interpretation of the concept established in the case-law of a ‘sufficiently uniform’ category of products or services, leading it to limit unduly the criteria for assessing that concept. In the present case, the common feature identified by the Board of Appeal supports the finding that the products and services in question form a sufficiently uniform category which permits a general statement of reasons.

               6.

               The judgment under appeal is not in accordance with the existing case-law, in particular with the order of 11 December 2014 in FTI Touristik GmbH v OHIM (BigXtra), C-253/14 P, EU:C:2014:2445.

      (1)  Regulation (EC) No 207/2009 of the Council of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).