title: Case C-213/05: Judgment of the Court (Grand Chamber) of 18 July 2007 (reference for a preliminary ruling from the Bundessozialgericht, Germany) — Wendy Geven v Land Nordrhein-Westfalen (Frontier worker — Regulation (EEC) No 1612/68 — Child-raising allowance — Not granted — Social advantage — Residence condition)

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/4

         Judgment of the Court (Grand Chamber) of 18 July 2007 (reference for a preliminary ruling from the Bundessozialgericht, Germany) — Wendy Geven v Land Nordrhein-Westfalen
   (Case C-213/05) (1)

   (Frontier worker - Regulation (EEC) No 1612/68 - Child-raising allowance - Not granted - Social advantage - Residence condition)
   (2007/C 211/06)
   Language of the case: German
   Referring court
   Bundessozialgericht
   Parties to the main proceedings

      Applicant: Wendy Geven

      Defendant: Land Nordrhein-Westfalen
   Re:
   Reference for a preliminary ruling — Bundessozialgericht — Interpretation of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475) — Social advantage — National legislation under which the grant of child-raising allowance (Erziehungsgeld) to persons who do not have their residence or habitual place of stay in national territory is conditional on exceeding the minor employment threshold (Geringfügigkeitsgrenze) of 15 hours a week
   Operative part of the judgment
   Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community does not preclude the exclusion, by the national legislation of a Member State, of a national of another Member State who resides in that State and is in minor employment (between 3 and 14 hours a week) in the former State from receiving a social advantage with the characteristics of German child-raising allowance on the ground that he does not have his permanent or ordinary residence in the former State.

      (1)  OJ C 193, 6.8.2005.


title: Case C-276/16: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 17 May 2016 — Preqù Italia s.r.l. v Agenzia delle Dogane e dei Monopoli

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/13

         Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 17 May 2016 — Preqù Italia s.r.l. v Agenzia delle Dogane e dei Monopoli
   (Case C-276/16)
   (2016/C 305/18)
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Parties to the main proceedings

      Appellant: Preqù Italia s.r.l.

      Respondent: Agenzia delle Dogane e dei Monopoli

      Question referred

   Is the Italian [tax] legislation [in question] contrary to the general principle of EU law that parties have a right to be heard in administrative procedures in that it does not provide, in favour of a taxpayer who has not been heard prior to the adoption of a tax measure by the customs authorities, for the suspension of that measure as the normal consequence of the lodging of an appeal?


title: Action brought on 9 December 1996 by Mrs Marta Alvarez-Cotera against the Commission of the European Communities (Case T-204/96)

text:
No C 54/30           I EN                 Official Journal of the European Communities                                   22 . 2 . 97
order to ensure compliance with the judgment by the                  awarded, subject to Luxembourg law and also provided
French State. The applicants consider that the Commission            for the exclusive jurisdiction of the Court of Justice of the
allowed the French State total discretion and complete               European Communities .
freedom to resort to whatever domestic legal provisions
were necessary in order to negate the entire effect of               The applicant claims, first, that there has been an
the provisions of Community law thus adjudicated on,                 infringement of Articles 1134, 1134-1 and 1135 of the
thereby seriously undermining the coherence and                      Luxembourg Civil Code, of the general principles of the
effectiveness of those provisions .                                  law on contracts and of the performance in good faith of
                                                                     contracts . It stresses in that regard that the contract at
The applicants further consider that the aggregated                  issue was awarded by valid, public and unequivocal
damage to be made good by the Commission, whose                      consensus ad idem .
failure to act continues to render it liable, amounts to 25
million French francs, valued as at 1988 , subject to                Secondly, the applicant states that even if it were to be
application of the appropriate weighting to take into                assumed that there was no actual or apparent contract in
account the depreciation of that currency, namely 1,19%              this case, which is denied, there should be a finding of
 ( total sum : ECU 4 562 884 ).                                      tortious liability, first, during the precontractual phase
                                                                     and, secondly, by virtue of infringement of Article 1382 et
H 1988 ECR 4489 .                                                    seq. of the Luxembourg Civil Code and of the Grand
                                                                     Ducal Regulation of 27 January 1994 implementing in
                                                                     Luxembourg law the EEC directives on public works
                                                                     contracts, public supply contracts and public services
                                                                     contracts . Specifically, there is no doubt that all the
                                                                     information required from tenderers was contained in the
Action brought on 10 December 1996 by Embassy                        applicant's tender in accordance with Article 29 of Title II
    Limousines & Services SA against European Parliament             of the abovementioned Grand-Ducal Regulation. Likewise,
                        ( Case T-203/96 )                            Article 23 of the General Conditions established by that
                                                                     regulation permits a supplier to be excluded from
                           ( 97/C 54/49 )                            participation in the contracting procedure only in the
                 (Language of the case: French)                      exhaustive cases to which it refers, which, according to
                                                                     the applicant, are wholly inapplicable here .
An action against the European Parliament was brought
before the Court of First Instance of the European                   The applicant concludes that in any event the defendant
Communities on 10 December 1996 by Embassy                           institution conducted itself negligently and even
                                                                     improperly in ignoring and flouting its interests. If the
Limousines & Services SA, whose registered office is at
                                                                     defendant did not intend to perform the contract and/or
Diegem, Belgium, represented by E. Boigelot, of the
Brussels Bar, with an address for service in Luxembourg at           considered that no contract had arisen, it is particularly
the Chambers of Louis Schiltz, 2 rue du Fort Rheinsheim .            abusive and injurious to require the applicant to carry out
                                                                     urgent and costly preparation, which was particularly
The applicant claims that the Court should:                          demanding in terms of time, energy and expense, for a
                                                                     contract which it is then decided not to perform or which
— order the European Parliament to pay to the applicant              is alleged to be non-existent.
      the sum of FB 24 267 910, subject to an increase or
      reduction in that amount in the course of the
      proceedings, by way of compensation for the financial,
      commercial and non-material damage which it is
      suffering on account of the wrongful conduct of the
      European Parliament,                                           Action brought on 9 December 1996 by Mrs Marta
                                                                     Alvarez-Cotera against the Commission of the European
                                                                                Communities
— order the European Parliament to bear all the costs of
      the proceedings.                                                                      ( Case T-204/96 )
                                                                                ( 97/C 54/50 )
Pleas in law and main arguments adduced in support:
                                                                                (Language of the case: English)
The applicant, a service company, which claims to have
been contacted officially by a representative of the                 An action against the Commission of the European
defendant institution for the purpose of informing it of the         Communities was brought before the Court of First
award to it of the contract for which it had tendered                Instance of the European Communities on 9 December
concerning the provision, by external services, of                   1996 by Mrs Marta Alvarez-Cotera , represented by
chauffeur-driven transport on the occasion of meetings in            Gerald van der Wal, Member of the Bar of the Supreme
Brussels, objects to the withdrawal of the invitation to             Court of the Netherlands, of Barents & Krans, Advocaten
tender in question and the initiation of a new award                 Notarissen , Brussels , with an address for service in
procedure .                                                          Luxembourg at the Chambers of A. May, Luxembourg.
It explains that under the terms of the invitation to tender         The applicant claims that the Court should :
and the framework contract at issue the European
Parliament made the framework contract, and contracts                — declare the decision of 25 September 1996 void,
 ---pagebreak--- 22 . 2 . 97              EN                Official Journal of the European Communities                               No C 54/31
— declare the application of Community tax to the                     2 . There is no legal basis for the imposition of
     applicant, who works for the defendant as a freelance                Community tax on the applicant:
     interpreter, unlawful and/or declare Article 8 of the
     Agreement with A.I.I.C. null and void,                               The provisions in the Agreements with A.I.I.C. under
                                                                          which the income of freelance interpreters is made
                                                                          subject to Community tax are null and void because
— order repayment of the Community tax withheld by                        there is no legal basis which enables the defendant or
     the defendant and/or paid by the applicant since                     any of the other parties to the Agreements to deduct,
     1 January 1989 until the date of the judgment to be                  on the basis of a private agreement, Community tax
     given in this case, together with interest at the rate of            from the remuneration of the applicant.
     8 % or as prescribed by law,
— order the Commission to pay the costs of the
     applicant.
                                                                      Action brought on 12 December 1996 by Roland Bieber
Pleas in law and main arguments adduced in support:                                 against the European Parliament
                                                                                ( Case T-205/96 )
The applicant explains that since 1986 she has worked as                                        ( 97/C 54/51 )
a freelance interpreter for the EC institutions . Since 1989
the Commission has deducted Community tax from the                                   (Language of the case: French)
remuneration of freelance interpreters on the basis of
agreements concluded every five years with the A.I.I.C.               An action against the European Parliament was brought
('Association       Internationale     des    Interpretes    de       before the Court of First Instance of the European
Conference '). On 23 April 1996 , the applicant requested             Communities on 12 December 1996 by Roland Bieber,
the defendant to reimburse the Community tax paid by                  residing in Brussels,            represented by Georges
her since 1989 and to declare that her income would, in               Vandersanden, of the Brussels Bar, with an address for
the future, no longer be subject to Community tax. The                service in Luxembourg at the offices of Fiduciaire Myson
request was rejected by the Commission by letter of                   Sari, 30 rue de Cessange .
29 May 1996 . An appeal against that decision lodged by
the applicant on 5 July 1996 was rejected by the                      The applicant claims that the Court should:
defendant by letter of 25 September 1996 .
                                                                      — annul the decision of the European Parliament, in its
The applicant submits that the decision contained in the                  capacity as the appointing authority, rejecting the
letter of 25 September 1996 should be annulled on the                     applicant's complaint concerning his request for
following grounds:                                                        compensation for the damage suffered as a result of
                                                                          his belated and unlawful reinstatement following a
                                                                          period of leave on personal grounds,
1.   The contested decision is based on an incorrect and
     unlawful application and          interpretation   of the        — order the European Parliament to pay compensation
     Agreements with A.II.C. :                                            estimated ( subject to subsequent finalization ) to
                                                                          amount to BFR 4 500 000 for the material damage
     — the imposition of Community tax by virtue of the                   suffered by the applicant, together with default interest
          Agreements, and more specifically Article 8                     at the rate of 8 % per annum from the date of
          thereof, in the case of the applicant is incorrect.             commencement of the present action,
          The applicant is of Swiss nationality and therefore
          falls outside of the scope of application of the            — order the European Parliament to pay all the costs .
          provisions of the Agreements, under which the sole
          criterion is the nationality of the interpreter in          Pleas in law and main arguments adduced in support:
          question,
                                                                      The applicant, an adviser to the Director responsible for
     — the defendant acted unlawfully and contrary to the             political affairs within the Directorate-General for
          provisions and the objectives of the Agreements             Research, contests the detrimental consequences resulting
          ( equality of treatment as regards the fiscal               from what he regards as delay in his reinstatement in the
          situation of all freelance interpreters engaged by          defendant institution following a period of leave on
          the Commission ) by applying the Agreements in              personal grounds .
          such a way that the applicant was obliged to pay
          Community tax on top of the national income tax             The applicant recalls that, by decision of 26 September
          paid in her country of residence, namely                    1991 , the appointing authority authorized him to take
          Switzerland, during the years 1989 to 1993 and              leave on personal grounds from 15 November 1991 until
          can obtain reimbursement of Community tax since             15 July 1992 . That leave was extended, by a series of
          1994 only under the strict conditions laid down in          decisions, until 15 November 1994 . Having heard nothing
          Article 8 ( 3 ) of the Agreement for the period 1994        from the defendant institution, the applicant approached
          to 1998 .                                                   the   Director-General      for  Personnel  and Finance   on


C 48/22               EN               Official Journal of the European Communities                                20.2.1999
Removal from the register of Joined Cases C-388/97 and                  Removal from the register of Case C-409/97 (1)
                          C-389/97 (1)                                                    (1999/C 48/44)
                        (1999/C 48/40)
                                                                  By order of 19 November 1998 the Court of Justice of the
By order of 11 November 1998, the President of the                European Communities (First Chamber) has ordered the
Court of Justice of the European Communities ordered the          removal from the register of Case C-409/97: Commission
removal from the register of Joined Cases C-388/97 and            of the European Communities v. Grand Duchy of
C-389/97 (Reference for a preliminary ruling from the             Luxembourg.
Conseil d'EÂtat): Fromagerie Philipona SA and Others v.
French Republic.
                                                                  (1) OJ C 41, 7.2.1998.
(1) OJ C 7, 10.1.1998.
                                                                        Removal from the register of Case C-415/97 (1)
      Removal from the register of Case C-253/98 (1)                                      (1999/C 48/45)
                        (1999/C 48/41)
                                                                  By order of 24 November 1998, the President of the
                                                                  Court of Justice of the European Communities ordered the
By order of 11 November 1998 the Court of Justice of the          removal from the register of Case C-415/97: Commission
European Communities has ordered the removal from the             of the European Communities v. Italian Republic.
register of Case C-253/98: Commission of the European
Communities v. Kingdom of Belgium.
                                                                  (1) OJ C 41, 7.2.1998.
(1) OJ C 278, 5.9.1998.
                                                                        Removal from the register of Case C-167/98 (1)
      Removal from the register of Case C-397/97 (1)                                      (1999/C 48/46)
                        (1999/C 48/42)
                                                                  By order of 2 December 1998 the Court of Justice of the
By order of 13 November 1998 the Court of Justice of the          European Communities has ordered the removal from the
European Communities has ordered the removal from the             register of Case C-167/98 (request for a preliminary ruling
register of Case C-397/97: Commission of the European             from the Oberster Gerichtshof): Westdeutsche Landesbank
Communities v. Italian Republic.                                  Girozentrale v. Johannes Leon.
(1) OJ C 26, 24.1.1998.                                           (1) OJ C 209, 4.7.1998.
      Removal from the register of Case C-274/94 (1)                   Removal from the register of Case C-305/98 P (1)
                        (1999/C 48/43)                                                    (1999/C 48/47)
By order of 17 November 1998 the Court of Justice of the          By order of 7 December 1998 the Court of Justice of the
European Communities has ordered the removal from the             European Communities has ordered the removal from the
register of Case C-274/94: United Kingdom of Great                register of Case 305/98 P: David T. Keeling v. Office for
Britain and Northern Ireland v. Commission of the                 Harmonisation in the Internal Market (Trade Marks and
European Communities.                                             Designs).
(1) OJ C 351, 10.12.1994.                                         (1) OJ C 312, 10.10.1998.


title: Case C-128/00: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by order of that court of 28 March 2000 in the appeal concerning Rudolf Resl, Josef Fleckl, Werner Karlinger, Grundverkehrsbeauftragter des Landes Salzburg and Grundverkehrslandeskommission des Landes Salzburg

text:
C 163/18               EN                     Official Journal of the European Communities                                     10.6.2000
Reference for a preliminary ruling from the Bundesger-                   3. Is the list of grounds of invalidity in Article 15(1) of the
ichtshof by order of that court of 1 February 2000 in the                    Regulation exhaustive?
      case of Aktiebolaget Hässle v ratiopharm GmbH
                                                                             If not:
                         (Case C-127/00)                                     (a) Does it constitute a ground of invalidity that a
                                                                                certificate was granted under the transitional provision
                                                                                in Article 19(1) of the Regulation even though a first
                                                                                authorisation to place the product on the market in
                         (2000/C 163/32)                                          the Community was already granted before the relevant
                                                                                date for the Member State in which the certificate was
                                                                                applied for and granted?
Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichtshof                    (b) In that case is the certificate completely invalid, or
(Federal Court of Justice) of 1 February 2000, which was                          should its duration merely be rectified accordingly?
received at the Court Registry on 3 April 2000, for a prelimi-
nary ruling in the case of Aktiebolaget Hässle v ratiopharm              4. If a breach of the transitional provision in Article 19(1) of
GmbH on the following questions on the interpretation of                     the Regulation does not constitute a ground of invalidity:
Articles 15 and 19(1) of Council Regulation (EEC) No 1768/92
of 18 June 1992 concerning the creation of a supplementary
protection certificate for medicinal products (OJ 1992 L 182,                May and must national law provide, as under Article 17(2)
p. 1):                                                                       of Regulation (EC) No 1610/96 of the European Parliament
                                                                             and of the Council of 23 June 1996 concerning the
                                                                             creation of a supplementary protection certificate for plant
1. (a) For application of the transitional provision in Article              protection products (3), for an appeal aimed at rectifying
        19(1) of the Regulation, in so far as that provision                 the duration of the protection certificate for a medicinal
        relates to the ‘first authorisation to place ... on the              product in the event of a breach of the transitional
        market ... in the Community’ before a specified relevant             provision in Article 19(1) of the Regulation?
        date, does that refer exclusively to an authorisation
        within the meaning of Directive 65/65/EEC (1) or
        Directive 81/851/EEC (2) as the case may be, or may              (1) OJ, English Special Edition 1965-1966, p. 20.
        another authorisation granted later (after the relevant          (2) OJ L 317 of 6.11.1981, p. 1.
        date) relating in particular to the prices of the medicinal      (3) OJ L 198 of 8.8.1996, p. 30.
        product also be material in this respect, if
        (aa) without such a further authorisation, for example
             one for price-law purposes, marketing of the
             medicinal product is not permissible under the law
             of the Member State concerned, or
        (bb)without such a further authorisation the medicinal
             product may in principle be marketed in the                 Reference for a preliminary ruling by the Unabhängiger
             Member State concerned, but effective marketing             Verwaltungssenat Salzburg by order of that court of
             is nevertheless not possible, in particular because         28 March 2000 in the appeal concerning Rudolf Resl, Josef
             the sickness funds reimburse the costs of the               Fleckl, Werner Karlinger, Grundverkehrsbeauftragter des
             medicinal product only if the further authorisation,        Landes Salzburg and Grundverkehrslandeskommission
             in particular for price-law purposes, has been                                     des Landes Salzburg
             granted or a determination of the price eligible for
             reimbursement has been made?
                                                                                (Case C-128/00)
    (b) Is the material authorisation for this purpose a first                                     (2000/C 163/33)
        authorisation in any Member State of the Community
        (as with Articles 8 and 13 of the Regulation) or the
        first authorisation in the Member State for which the            Reference has been made to the Court of Justice of the
        grant of the supplementary protection certificate has            European Communities by order of the Unabhängiger Verwal-
        been applied for?                                                tungssenat Salzburg of 28 March 2000, received at the Court
                                                                         Registry on 4 April 2000, for a preliminary ruling in the
                                                                         appeal concerning Rudolf Resl, Josef Fleckl, Werner Karlinger,
2. Is there doubt as to the validity of the transitional provision       Grundverkehrsbeauftragter des Landes Salzburg and Grundver-
    in Article 19(1) of the Regulation in so far as it lays down         kehrslandeskommission des Landes Salzburg on the following
    different relevant dates for different Member States?                question:
 ---pagebreak--- 10.6.2000              EN                    Official Journal of the European Communities                                      C 163/19
Are the provisions of Article 56 et seq. of the EC Treaty to be         Such conduct clearly conflicts with Community law, as
interpreted as precluding the application of Paragraphs 12 to           interpreted by the Court of Justice, and specifically
14 of the Salzburger Grundverkehrsgesetz, (Salzburg Land
Transfer Law) of 1997 in the version published in LGBl. No.
11/1999, whereby any person who wishes to acquire a                     (a) with the principles of effectiveness and judicial protection
building plot in the federal Land of Salzburg must comply                    of rights recognised by Community law;
with a notification or authorisation procedure in respect of the
acquisition of that plot, with the consequence that one of the
fundamental freedoms of the acquirer of title as guaranteed by          (b) with the prohibition of making the exercise of rights
the laws of the European Union has been infringed in this                    conferred by Community law excessively difficult;
case?
                                                                        (c) with the prohibition of rules of evidence which place on
                                                                             the taxpayer the onus of proving that the taxes unduly
                                                                             paid have not been passed on to others.
Action brought on 4 April 2000 by the Commission of
  the European Communities against the Italian Republic
                         (Case C-129/00)
                         (2000/C 163/34)
An action against the Italian Republic was brought before
Court of Justice on 4 April 2000 by the Commission of the               Action brought on 5 April 2000 by the Commission of
European Communities, represented by Enrico Traversa, Legal             the European Communities against the Federal Republic
Adviser, Acting as Agent, with an address for service in                                           of Germany
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
Centre, Kirchberg.
                                                                                (Case C-130/00)
The applicant claims that the Court of Justice should:
(a) Declare that, by keeping in force the second paragraph of                                    (2000/C 163/35)
     Article 29 of Law No 428 of 29 December 1990 which, as
     interpreted and applied by the administrative and judicial
     authorities, lays down rules of evidence in relation to the        An action against the Federal Republic of Germany was
     passing on of taxes levied in breach of Community                  brought before the Court of Justice of the European Communi-
     provisions which in practice make exercise of the right to         ties on 5 April 2000 by the Commission of the European
     reimbursement of such taxes impossible or in any event             Communities, represented by Josef Christian Schieferer of the
     excessively difficult for the taxpayer and as such are             Legal Service of the Commission of the European Communi-
     incompatible with the legal principle laid down by the             ties, with an address for service in Luxembourg at the office of
     Court of Justice regarding the recovery of sums paid but           Carlos Gómez de la Cruz, Wagner Centre C 254 Kirchberg,
     not due, has failed to fulfil its obligations under the EC         Luxembourg.
     Treaty;
(b) Order the Italian Republic to pay the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments                                         1. Declare that, by failing to adopt and communicate to the
                                                                             Commission the necessary measures to implement into
The Commission considers that the specific way in which the                  domestic law European Parliament and Council Directive
Italian provision is interpreted by the Italian judiciary and in             97/52/EC (1) of 13 October 1997 amending Directives
particular the Corte Suprema di Cassazione ultimately places                 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the
on the taxpayer the burden of proving that he did not pass on                coordination of proposals for the award of public service
to his customers the amount of the unlawful tax, making it                   contracts, public supply contracts and public works con-
extremely difficult, if not impossible, to secure reimbursement              tracts respectively within the prescribed period the Federal
of the taxes. The Italian Administration has systematically,                 Republic of Germany has failed to fulfil its obligations
since the entry into force of Law No 428/90, opposed any                     under the EC Treaty and that directive.
application for reimbursement based on the illegality, under
Community law, of the levy or other charges made in
connection with customs operations or consumer taxes.                   2. Order the Federal Republic of Germany to pay the costs.


title: Case T-122/09: Judgment of the General Court of 17 February 2011 — Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council (Dumping — Imports of prepared or preserved citrus fruits originating in the People’s Republic of China — Rights of the defence — Obligation to state reasons — Principle of sound administration — Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 384/96 (now Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 1225/2009))

text:
               2.4.2011

               EN

               Official Journal of the European Union

               C 103/21

         Judgment of the General Court of 17 February 2011 — Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council
   (Case T-122/09) (1)

   (Dumping - Imports of prepared or preserved citrus fruits originating in the People’s Republic of China - Rights of the defence - Obligation to state reasons - Principle of sound administration - Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 384/96 (now Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 1225/2009))
   2011/C 103/37
   Language of the case: English

      Parties

      Applicants: Zhejiang Xinshiji Foods Co. Ltd (Liuao Town, Sanmen County, China) and Hubei Xinshiji Foods Co. Ltd (Dangyang City, China)) (represented by: F. Carlin, Barrister, A. MacGregor, Solicitor and N. Niejahr and Q. Azau, lawyers)

      Defendant: Council of the European Union (represented by: J.-P. Hix and R. Szostak, Agents, assisted initially by G. Berrisch and G. Wolf, and subsequently by G. Berrisch, lawyers)

      Intervener in support of the defendant: European Commission (represented by: H. van Vliet and C. Clyne, Agents)

      Re:

   Application for annulment of Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China (OJ 2008 L 350, p. 35) in so far as it concerns the applicants.

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China in so far as it concerns Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd;;

               2.

               Orders Zhejiang Xinshiji Foods and Hubei Xinshiji Foods to bear half of their own costs;

               3.

               Orders the Council of the European Union to bear its own costs and to pay half of the costs incurred by Zhejiang Xinshiji Foods and Hubei Xinshiji Foods;

               4.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 141, 20.6.2009.


title: Case C-138/11: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Compass-Datenbank GmbH v Republik Österreich (Competition — Article 102 TFEU — Concept of ‘undertaking’ — Data of the companies register stored in a database — Activity of collection and making available of that data in return for remuneration — Refusal by the public authorities to authorise re-utilisation of that data — ‘Sui generis’ right provided for in Article 7 of Directive 96/9/EC)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/11

         Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Compass-Datenbank GmbH v Republik Österreich
   (Case C-138/11) (1)

   (Competition - Article 102 TFEU - Concept of ‘undertaking’ - Data of the companies register stored in a database - Activity of collection and making available of that data in return for remuneration - Refusal by the public authorities to authorise re-utilisation of that data - ‘Sui generis’ right provided for in Article 7 of Directive 96/9/EC)
   2012/C 287/17
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: Compass-Datenbank GmbH

      Defendant: Republik Österreich

      Re:

   Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 102 TFEU — National rules providing for payment to be made for consultation of the companies register (Firmenbuch) and prohibiting any other commercial use of that register — Concept of economic activity — Abuse of a dominant position — Scope of the essential facilities doctrine

      Operative part of the judgment

   The activity of a public authority consisting in the storing, in a database, of data which undertakings are obliged to report on the basis of statutory obligations, in permitting interested persons to search for that data and/or in providing them with print-outs thereof does not constitute an economic activity, and that public authority is not, therefore, to be regarded, in the course of that activity, as an undertaking, within the meaning of Article 102 TFEU. The fact that those searches and/or that provision of print-outs are carried out in consideration for remuneration provided for by law and not determined, directly or indirectly, by the entity concerned, is not such as to alter the legal classification of that activity. In addition, when such a public authority prohibits any other use of the data thus collected and made available to the public, by relying upon the sui generis protection granted to it as maker of the database pursuant to Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, or upon any other intellectual property right, it also does not exercise an economic activity and is not therefore to be regarded, in the course of that activity, as an undertaking, within the meaning of Article 102 TFEU.

      (1)  OJ C 186, 25.6.2011.


title: Case C-273/15: Judgment of the Court (Eighth Chamber) of 26 May 2016 (request for a preliminary ruling from the Augstākās tiesas — Latvia) — ZS ‘Ezernieki’ v Lauku atbalsta dienests (Reference for a preliminary ruling — Agriculture — European Agricultural Guidance and Guarantee Fund — Regulations (EC) Nos 1257/1999 and 817/2004 — Support for rural development — Recovery of undue payments — Increase of the area declared during the five-year commitment period above the threshold provided for — Replacement of the original commitment by a new commitment — Non-compliance by the beneficiary with the obligation to submit an annual application for payment of aid — National legislation requiring the repayment of all aid paid over several years — Principle of proportionality — Articles 17 and 52 of the Charter of Fundamental Rights of the European Union)

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/10

         Judgment of the Court (Eighth Chamber) of 26 May 2016 (request for a preliminary ruling from the Augstākās tiesas — Latvia) — ZS ‘Ezernieki’ v Lauku atbalsta dienests
   (Case C-273/15) (1)

   ((Reference for a preliminary ruling - Agriculture - European Agricultural Guidance and Guarantee Fund - Regulations (EC) Nos 1257/1999 and 817/2004 - Support for rural development - Recovery of undue payments - Increase of the area declared during the five-year commitment period above the threshold provided for - Replacement of the original commitment by a new commitment - Non-compliance by the beneficiary with the obligation to submit an annual application for payment of aid - National legislation requiring the repayment of all aid paid over several years - Principle of proportionality - Articles 17 and 52 of the Charter of Fundamental Rights of the European Union))
   (2016/C 260/13)
   Language of the case: Latvian

      Referring court

   Augstākās tiesas

      Parties to the main proceedings

      Applicant: ZS ‘Ezernieki’

      Defendant: Lauku atbalsta dienests

      Operative part of the judgment

   Article 71(2) of Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF), must, in the light of the objective of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations, as amended by Council Regulation (EC) No 1783/2003 of 29 September 2003, and of Regulation No 817/2004, in the light of the principle of proportionality and Articles 17 and 52 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, in accordance with which the beneficiary of aid granted in return for agri-environmental commitments covering several years is required to repay all of the aid already received, on the ground that he did not submit an annual application for payment of that aid for the last year of the five-year period of his commitments, where, first, that five-year period replaced an earlier period as a result of an increase in the area of his holding and, secondly, that beneficiary did not cease to fulfil his obligations relating to the use of the area declared prior to that increase.

      (1)  OJ C 262, 10.8.2015.


title: Case T-15/00: Action brought on 19 January 2000 by Auto- en Carosseriebedrĳf Ambting B.V. and Others against the Commission of the European Communities

text:
C 135/12              EN                       Official Journal of the European Communities                                       13.5.2000
(2) Annul the Commission’s decision [C(1999) 2539 final] (1)                  service stations along the border with Germany) are to be
    of 20 July 1999 or annul Articles 2 and 3 of the decision                 treated as constituting unlawful State aid within the
    in so far as they provide, with reference to (one of) the                 meaning of Article 87(1) EC and/or must be repaid by the
    applicants, that any amounts received by the applicant(s)                 applicant(s), and/or in so far as it follows from that decision
    pursuant to the temporary arrangements (subsidies for                     that any amounts which may or must be paid to the
    service stations along the border with Germany) are to be                 applicant(s) pursuant to the temporary arrangements are
    treated as constituting unlawful State aid within the                     correctly classified as constituting unlawful aid for the
    meaning of Article 87(1) EC and/or must be repaid by the                  purposes of Article 87(1) EC;
    applicant(s), and/or in so far as it follows from that decision
    that any amounts which may or must be paid to the                     (3) Order the Commission to pay the costs of the proceedings.
    applicant(s) pursuant to the temporary arrangements are
    correctly classified as constituting unlawful aid for the
    purposes of Article 87(1) EC;
                                                                          Pleas in law and main arguments
(3) Order the Commission to pay the costs of the proceedings.
                                                                          The pleas in law and the main arguments are similar to those
                                                                          in Case T-318/99.
Pleas in law and main arguments
The pleas in law and the main arguments are similar to those              (1) OJ L 280 of 30.10.1999, p. 87.
in Case T-318/99.
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                          Action brought on 20 January 2000 by Jean Demaeght,
                                                                          Théo Lippert, Ulrike Sinter, John Hambly and Kirsten
                                                                          Lammar against the Court of Justice of the European
                                                                                Communities
Action brought on 19 January 2000 by Auto- en Carosse-
riebedrijf Ambting B.V. and Others against the Com-
            mission of the European Communities                                                    (Case T-19/00)
                         (Case T-15/00)                                                           (2000/C 135/24)
                        (2000/C 135/23)
                                                                                (Language of the case: French)
                   (Language of the case: Dutch)                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 20 January 2000 by Jean De-
An action against the Commission of the European Communi-
                                                                          maeght, residing in Luxembourg, Théo Lippert, residing in
ties was brought before the Court of First Instance of the
                                                                          Luxembourg, Ulrike Sinter, residing in Luxembourg, John
European Communities on 19 January 2000 by Auto- en
                                                                          Hambly, residing at Bembridge (United Kingdom) and Kirsten
Carosseriebedrijf Ambting B.V. and Others, established in
                                                                          Lammar, residing in Luxembourg, represented by Jean-Noël
Arnhem (Netherlands), represented by G. van der Wal, of the
                                                                          Louis, Greta-Françoise Parmentier and Véronique Peere, of the
Brussels Bar, with an address for service in Luxembourg at the
                                                                          Brussels Bar, with an address for service in Luxembourg at the
Chambers of A. May, 31 Grand-Rue.
                                                                          offices of Société de Gestion Fiduciaire, 2-4 Rue Beck.
The applicants claim that the Court should:
                                                                          The applicants claim that the Court should:
(1) Declare the action to be admissible;
                                                                          — annul the decision of the Court of Justice of 18 November
(2) Annul the Commission’s decision [C(1999) 2539           final] (1)        1998 not to take any steps to comply with the judgment
    of 20 July 1999 or annul Articles 2 and 3 of the decision                 of the Court of First Instance of 30 September 1998 in
    in so far as they provide, with reference to (one of) the                 Case T-154/96;
    applicants, that any amounts received by the applicant(s)
    pursuant to the temporary arrangements (subsidies for                 — order the defendant to pay the costs.


title: Action brought on 10 May 1996 by Filippo de Jorio against the Council of the European Union (Case T-64/96)

text:
 10 . 8 . 96            EN                   Official Journal of the European Communities                               No C 233/9
 Action brought on 10 May 1996 by Augusto Fichtner                      — infringement and erroneous application of Articles 43 et
   against the Commission of the European Communities                       seq. of the Staff Regulations ,
                          ( Case T-63 /96 )
                                                                        — breach of an essential procedural requirement,
                            ( 96/C 233/ 17 )
                                                                        — misuse of powes inasmuch as the facts were distorted,
                 (Language of the case: Italian)                            and
                                                                        — misuse of powers inasmuch as the statement of reasons is
 An action against the Commission of the European                           defective, illogical and contradictory.
 Communities was brought before the Court of First
 Instance of the European Communities on 10 May 1996 by
 Augusto Fichtner, an official at the Joint Research Centre at
 Ispra , residing at Varese, represented by Vincenzo Salvatore ,
 of the Pavia Bar, with an address for service in Varese at 6
 Via Orrigoni .
                                                                        Action brought on 10 May 1996 by Filippo de Jorio against
 The applicant claims that the Court should :                                       the Council of the European Union
                                                                                ( Case T-64/96 )
 — annul the decision of the Commission of 12 February                                            ( 96/C 233/ 18 )
     1996 rejecting the applicant's complaint No 67/95
     against his immediate superior's assessments in his staff
     report for the period 1991 to 1993 ,                                              (Language of the case: Italian)
 — order the Commission to compensate the applicant for                 An action against the Council of the European Union was
     the material and non-material damage suffered by him               brought before the Court of First Instance of the European
     as a result of the conduct complained of in such an                Communities on 1 0 May 1 996 by Filippo de Jorio, member
     amount as the Court may deem fair,                                 of the Economic and Social Committee of the European
                                                                        Union, represented and defenced by Lucio Filippo Longo,
                                                                        Avvocato and Procuratore in Rome, with an address for
— order the unsuccessful party to pay the costs .
                                                                        service in Luxembourg at the Chambers of Ernest Arendt,
                                                                        8-10 Rue Mathias Hardt .
 Pleas in law and main arguments adduced in support:
                                                                       Pleas in law and main arguments adduced in support:
The applicant, an official in Grade B 4, who has been
working at the Joint Research Centre at Ispra since 2 May              The applicant, who is a member of the Economic and Social
 1967, points out that he has always carried out the duties             Committee ( ESC ), points out that Article 194 of the EC
relating to his post with professionalism and competence, as           Treaty provides that 'the members of the ( Economic and
amply demonstrated by the favourable assessments made in               Social ) Committee may not be bound by any mandatory
his staff reports until 1989 by the then Director . He states          instructions; they shall be completely independent in the
that the appointment of the successor to that Director was             performance of their duties, in the general interest of the
followed immediately by manifestly discriminatory                      Community ' and that ' the Council , acting by a qualified
attitudes and conduct detrimental to the applicant, resulting          majority , shall determine the allowances of members of the
in his gradual marginalization by means of allocating to him           Committee '. The applicant therefore maintains that, by not
wholly inappropriate duties with regard to his grade and the           determining the allowances in that manner, as provided by
professional qualifications he had in the meantime acquired .          the EC Treaty, the Council has infringed a clear provision of
Moreover, the applicant's numerous operational and                     Article 194 , as cited above, because members of the ESC
organizational proposals, which were regularly submitted               currently have no duty or service allowance ( by contrast
to his immediate superior, were essentially disregarded . His          with all other Community appointments ) and receive only a
staff report became gradually and unjustifiably worse to the           flat-rate reimbursement of expenses, which is totally
point that the report relating to the period 1 July 1991 to            inappropriate to the nature of the duties with which they are
30 June 1993 , which represents possibly the strongest                 entrusted and insufficient, moreover, to cover the expenses
expression, at least in documentary form, of the ostracism             actually incurred on each visit to Brussels .
referred to above, is particularly characterized by a number
of untrue statements and assessments which seriously harm              The applicant submits that when , in its provisions
the prestige and dignity of the official concerned , without           concerning the ESC, the Treaty lays down that ESC
their being in the least supported by any evidence but                 members may not be bound by any mandatory instructions,
characterized in particular by bald affirmations and a failure         its intention is indisputedly to affirm the principle that
to state reasons .
                                                                       members of the ESC exercise judgment independently and
                                                                       autonomously . Since, in order to carry out their task ,
On the basis of the foregoing the applicant claims that the            members of the ESC have a duty to act in accordance with
report relating to the period 1991 to 1993 is unlawful on the          their own convictions , which may lead them to maintain
following grounds:                                                     positions at variance with those adopted by the
 ---pagebreak--- No C 233/ 10          EN                 Official Journal of the European Communities                                     10 . 8 . 96
organizations to which they belong, their task necessarily          The applicant submits that this decision was adopted in
entails an appropriate financial arrangement . Thus the fact        breach of the essential procedural requirements set out in
that members of the ESC continue to go without such an              Article 25 of the Staff Regulations . It infringes general rules
arrangement is incompatible with the nature of the task             of law relating to the application of the Treaty establishing
assigned to them by the Treaty, since it inherently                 the European Community, namely the principles of equal
presupposes that all members of the ESC are paid for those          treatment, the protection of legitimate expectations and the
services by organizations in their respective countries and         prohibition of retroactive withdrawal of a legal measure
that they are therefore in practice obliged , in the                which confers individual rights . The decision was also
performance of their ESC duties, to act in the interests and at     adopted without taking the applicant's rights and legitimate
the behest of those organizations .                                 interests into account .
The applicant also alleges : ( a ) breach of the principle of
equal treatment as between the various European
appointments; ( b ) breach of the principle that allowances
should compensate time devoted to the performance of
duties and the quality and quantity of work undertaken , and
not merely ( and, above all, not partially ) actual expenses        Action brought on 15 May 1996 by Sonja Edith Berlingieri
incurred .
                                                                    Vinzek against the Commission of the European
                                                                                Communities
                                                                                ( Case T-71 /96 )
                                                                                ( 96/C 233/20 )
Action brought on 13 May 1996 by John Mellett against the
      Court of Justice of the European Communities                                  (Language of the case: French)
                        Case T-66/96 )
                        ( 96/C 233/ 19 )                            An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                (Language of tbe case: Englisb)                     Instance of the European Communities on 15 May 1 996 by
                                                                    Sonja Edith Berlingieri Vinzek, residing at Sterrebeek
An action against the Commission of the European                    ( Belgium ), represented by Jean-Noël Louis , Thierry
Communities was brought before the Court of First                   Demaseure and Ariane Tornel , all of the Brussels Bar, with
Instance of the European Communities on 13 May 1996 by              an address for service in Luxembourg at the offices of
John Mellett, represented by Brendan O'Donovan, with an             Fiduciaire Myson , Sari, 1 Rue Glesener .
address for service in Luxembourg at 61 , rue des
Maraîchers, Plateau du Kirchberg.                                   The applicant claims that the Court should :
The applicant claims that the Court should :                        — annul the decision of the selection board in competition
                                                                        COM/A/955 of 28 March 1996 not to admit her to the
— annul the decision of the Administrative Committee of
    the Court of Justice of the European Communities of                 oral test in the competition,
    14 June 1995 not to commence the procedure leading to
    the establishment of Mr Mellett as a permanent official ,       — annul , in so far as necessary, the decision of the selection
    and                                                                 board in competition COM/A/955 of 16 February 1996
                                                                        not to admit her to the oral test in the competition,
— order the       defendant to     bear the   costs  of these
    proceedings .                                                   — order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:
                                                                    Pleas in law and main arguments adduced in support:
The applicant, who , as personal driver of one of its
Members, is a member of the temporary staff of the Court of         The applicant states that she obtained her veterinary degree
Justice challenges the refusal to commence a procedure              at the University of Pisa ( Italy ) in 1974 and that, since
leading to his appointment as permanent official .                  September 1974, she has been working as an independent
                                                                    consultant in various areas, and especially in the technical
The applicant states that according to a well-established           and administrative areas and in the area of veterinary
practice of the defendant institution, drivers are first            legislation . On 4 October 1995 , the Commission published
recruited as temporary officials attached to the Chambers of        the notice of open competition COM/A/955 with a view to
a Member . After three years' service, the Member would             the recruitment of principal administrators ( A4/A5 ) of
propose that a procedure leading to the establishment of the        Austrian nationality . The applicant lodged her candidature
driver as a permanent official be set in motion . An internal       within the prescribed time-limit . By letter of 16 February
competition would then be organized by the Court's                  1996 , she was informed that she had not been admitted to
administration, which would invariably lead to the driver           the oral test in the competition . Following a request by the
being established . The contested decision has departed from        applicant that the decision be re-examined, the selection
this practice .                                                     board confirmed its decision by letter of 26 March 1996 .


title: Case C-139/12: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 19 March 2012 — Caixa d’Estalvis i Pensions de Barcelona v Generalidad de Cataluña

text:
               16.6.2012

               EN

               Official Journal of the European Union

               C 174/16

         Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 19 March 2012 — Caixa d’Estalvis i Pensions de Barcelona v Generalidad de Cataluña
   (Case C-139/12)
   2012/C 174/24
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicant: Caixa d’Estalvis i Pensions de Barcelona

      Defendant: Generalidad de Cataluña

      Questions referred

               1.

               Is it a requirement of Article 13B(d)(5) of Council Directive 77/388/EEC (1) of 17 May 1977 (now Council Directive 2006/112/EC of 28 November 2006) that transactions by a taxable person involving the sale of shares which amount to acquiring title to immovable property be subject to VAT and not be exempt, in view of the exception made in respect of securities giving the holder thereof de jure or de facto rights of ownership or possession over immovable property or part thereof?

               2.

               Does Council Directive 77/388/EEC of 17 May 1977 permit a provision such as Article 108 of Spanish Law 24/1988 on the Stock Market, which provides that the acquisition of the majority of the capital of a company whose assets essentially comprise immovable property is liable to an indirect tax other than VAT, namely capital transfer duty, without regard to the possibility that the parties to the transaction may be acting in a business capacity, bearing in mind that had the immovable property been transferred directly, instead of transferring the shares or interests, the transaction would have been subject to VAT?

               3.

               Is it compatible with the freedom of establishment under Article [43] EC (now Article 49 TFEU) and with the free movement of capital under Article 56 EC (now Article 63 TFEU) for a provision of national law such as Article 108 of the Spanish Law on the Stock Market of 28 July 1988, as amended by the 12th additional provision of Law 18/1991, to provide that duty is chargeable on the acquisition of the majority of the capital of companies whose assets essentially comprise immovable property situated in Spain, without offering the possibility of demonstrating that the company over which control is obtained is economically active?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case C-647/11 P: Appeal brought on 19 December 2011 by Dimos Peramatos against the judgment delivered by the General Court (First Chamber) on 12 October 2011 in Case T-312/07 Dimos Peramatos v European Commission

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/18

         Appeal brought on 19 December 2011 by Dimos Peramatos against the judgment delivered by the General Court (First Chamber) on 12 October 2011 in Case T-312/07 Dimos Peramatos v European Commission
   (Case C-647/11 P)
   2012/C 49/30
   Language of the case: Greek

      Parties

      Appellant: Dimos Peramatos (Municipality of Perama) (represented by: G. Gerapetritis, dikigoros)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               set aside the judgment of the General Court inasmuch as it dismisses the action which sought cessation of any obligation on the part of the appellant to refund sums paid within the framework of the project LIFE97/ENV/GR/000380 or, in the alternative, amendment of the contested measure so as to oblige the appellant to pay EUR 93 795,32, the sum determined for accounting purposes as the ineligible expenditure, as the Commission itself acknowledged;

               —

               refer the case back to the General Court for re-examination;

               —

               order the European Commission to pay the appellant’s costs including the costs in respect of its lawyers.

      Pleas in law and main arguments

   The appellant puts forward two pleas in law in support of its appeal:

               1.

               Erroneous interpretation both of the terms of the subsidy agreement concluded between Dimos Peramatos and the European Commission on 17 July 1997 under No C(97) 1997/final/29 in the context of performance of action falling within the LIFE Programme and of the agreement’s regulatory framework (Regulation No 1973/92), in so far as the General Court considered that the municipality’s obligation to plant trees, as resulting from the subsidy agreement, was performed deficiently.

               2.

               Erroneous interpretation and infringement of the principles of good administration and of legal certainty on account of deficient reasoning in the judgment under appeal in the section concerning the obligation to state reasons for unfavourable administrative acts adopted by institutions of the European Union.


title: Case C-86/16 P: Appeal brought on 12 February 2016 by Kenzo Tsujimoto against the judgment of the General Court (First Chamber) delivered on 2 December 2015 in Case T-522/13: Kenzo Tsujimoto v European Union Intellectual Property Office

text:
               12.9.2016

               EN

               Official Journal of the European Union

               C 335/28

         Appeal brought on 12 February 2016 by Kenzo Tsujimoto against the judgment of the General Court (First Chamber) delivered on 2 December 2015 in Case T-522/13: Kenzo Tsujimoto v European Union Intellectual Property Office
   (Case C-86/16 P)
   (2016/C 335/37)
   Language of the case: English

      Parties

      Appellant: Kenzo Tsujimoto (represented by: A. Wenninger-Lenz, M. Ring, Rechtsanwältinnen, W. von der Osten-Sacken, Rechtsanwalt)

      Other parties to the proceedings: European Union Intellectual Property Office, Kenzo

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (First Chamber) of 2 December 2015 in Case T-522/13;

               —

               give final judgment on the dispute;

               —

               order EUIPO and Kenzo S.A. to pay the costs of the proceedings, including the costs of the proceedings before the Board of Appeal.

      Pleas in law and main arguments

               1.

                     Infringement of Article 76 (2) CTMR

               Both oppositions brought by KENZO S.A. are based on Article 8 (5) CTMR (1). In both cases, the Board of Appeal took into account evidence in support of the reputation claim which was filed by the Opponent before the Opposition Division in order to establish genuine use of the mark. It is undisputed that the documents concerned were filed after the expiry of the time limits for submitting evidence of the existence, validity and scope of protection of the earlier right pursuant to Rule 19 (1) CTMIR (2). It follows from Rule 19 (1), (2) and 20 (1) CTMIR that an opposition based on Article 8 (5) must be rejected if the opponent fails to prove the reputation of the earlier trademark within the period specified by the Office. Nevertheless, the General Court comes to the conclusion that the Board of Appeal had discretion as to whether the evidence concerned should be taken into account in support of the reputation claim, that the Board recognized and did exercise its discretion and provided proper reasons for taking that evidence into account. The appellant, on the other hand, is of the opinion that the finding of the General Court awarding discretion to the Board of Appeal is flawed by an error in law and amounts to misapplication of Rules 19 (1), (2) and 20 (1) CTMIR.
               The appellant is aware that the other parties to the proceedings claim that the admissibility of the consideration of documents filed in support of genuine use in support of the reputation claim is to be guided not by Rule 20 (1) CTMIR, but by Rule 50 paragraph 1, alinea 3, of Regulation No 2868/95 as a special procedural Rule before the Board of Appeal.
               Even if the discretion of the Board of Appeal were to be construed in line with Rule 50 (1) (iii) CTMIR, that discretion was exercised incorrectly by the Board of Appeal and the General Court misapplied Article 76 (2) by approving the Board of Appeal's considerations on the indissociable link between proof of use and proof of reputation as proper exercising of its discretion. In fact, the Board of Appeal did not even determine the scope of its discretion, i.e. by determining whether the discretion in the subject case must be exercised restrictively or not. If the Board of Appeal had exercised its discretion correctly, it should have recognized that the discretion must, in conformity with the Rintisch judgment (Case C-120/12 P, Bernhard Rintisch v. OHIM) be exercised restrictively. In the circumstances, the only way of correctly exercising discretion would have been not to take into consideration the documents supporting the reputation claim. The General Court overlooked the fact that the Board of Appeal failed to correctly determine the scope of its discretion and to apply its discretion within that scope and, by so doing, infringed Article 76 (2) CTMR.

               2.

                     Infringement of Article 8 (5) CTMR

               The appellant claims that the General Court failed to compare the marks ‘KENZO’ and ‘KENZO ESTATE’ as a whole and so infringed Article 8 (5) CTMR. In addition, the appellant claims that the reputation claim was confirmed by the General Court on the basis of documents which should, under proper application of the law and proper exercising of its discretion by the Board of Appeal, not have been taken into account. The appellant further claims that the General Court failed to undertake the necessary global assessment when it concluded that the contested trademark would be likely to be associated with the earlier mark and would take unfair advantage of the earlier mark's reputation. Finally, the appellant submits that the Board of Appeal and the General Court erred when concluding that the appellant had failed to substantiate ‘due cause’ within the meaning of Article 8 (5) CTMR.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

      OJ L 78, p. 1

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

      OJ L 303, p. 1


title: Case F-98/09: Judgment of the Civil Service Tribunal (First Chamber) of 27 September 2011 — Sarah Whitehead v European Central Bank (Civil service — Staff of the ECB — Annual salary and bonus review — 2008 review — Annual assessment — Criteria for assessment — Staff Committee consultation — Taking account of periods of sick leave — Setting of objectives)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/36

         Judgment of the Civil Service Tribunal (First Chamber) of 27 September 2011 — Sarah Whitehead v European Central Bank
   (Case F-98/09) (1)

   (Civil service - Staff of the ECB - Annual salary and bonus review - 2008 review - Annual assessment - Criteria for assessment - Staff Committee consultation - Taking account of periods of sick leave - Setting of objectives)
   2011/C 340/71
   Language of the case: English

      Parties

      Applicant: Sarah Whitehead (Frankfurt am Main, Germany) (represented by: L. Levi and M. Vandenbussche, lawyers)

      Defendant: European Central Bank (ECB) (represented: initially by F. Feyerbacher and G. Nuvoli, Agents and by B. Wägenbaur, lawyer, and subsequently by E. Carlini and G. Nuvoli, Agents and by B. Wägenbaur, lawyer)

      Re:

   First, annulment of the decision of the ECB awarding the applicant a salary increase of two points for the purpose of the Annual Salary and Bonus Review for the year 2008, and payment of the difference between the salary increase received and that to which the applicant claims she was entitled. Second, compensation for non-material loss suffered.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Ms Whitehead to bear her own costs and to pay those of the European Central Bank.

      (1)  OJ C 24, 30.1.10, p. 82.


title: Case C-87/12: Judgment of the Court (Second Chamber) of 8 May 2013 (request for a preliminary ruling from the Cour administrative (Luxembourg)) — Kreshnik Ymeraga, Kasim Ymeraga, Afijete Ymeraga-Tafarshiku, Kushtrim Ymeraga, Labinot Ymeraga v Ministre du Travail, de l’Emploi et de l’Immigration (Citizenship of the Union — Article 20 TFEU — Right of residence of third-country nationals who are family members of a Union citizen who has not exercised his right of freedom of movement — Fundamental rights)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/27

         Judgment of the Court (Second Chamber) of 8 May 2013 (request for a preliminary ruling from the Cour administrative (Luxembourg)) — Kreshnik Ymeraga, Kasim Ymeraga, Afijete Ymeraga-Tafarshiku, Kushtrim Ymeraga, Labinot Ymeraga v Ministre du Travail, de l’Emploi et de l’Immigration
   (Case C-87/12) (1)

   (Citizenship of the Union - Article 20 TFEU - Right of residence of third-country nationals who are family members of a Union citizen who has not exercised his right of freedom of movement - Fundamental rights)
   2013/C 225/44
   Language of the case: French

      Referring court

   Cour administrative

      Parties to the main proceedings

      Applicants: Kreshnik Ymeraga, Kasim Ymeraga, Afijete Ymeraga-Tafarshiku, Kushtrim Ymeraga, Labinot Ymeraga

      Defendant: Ministre du Travail, de l’Emploi et de l’Immigration

      Re:

   Request for a preliminary ruling — Cour administrative — Interpretation of Article 20 TFEU and Articles 20, 21, 24, 33 and 34 of the Charter of Fundamental Rights — Citizenship of the Union — Right to family reunification for a citizen of the European Union for the benefit of family members who are third-country nationals, where that person has not actually exercised the right of freedom of movement and does not have a right to reside in a Member State other than that of which he holds the nationality

      Operative part of the judgment

   Article 20 TFEU must be interpreted as not precluding a Member State from refusing to allow a third-country national to reside in its territory, where that third-country national wishes to reside with a family member who is a European Union citizen residing in the Member State of which he holds the nationality and has never exercised his right of freedom of movement as a Union citizen, provided such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen.

      (1)  OJ C 138, 12.5.2012.


title: Case T-521/10: Order of the General Court of 18 October 2011 — Confortel Gestión v OHIM — Homargrup (CONFORTEL AQUA 4)

text:
               10.12.2011

               EN

               Official Journal of the European Union

               C 362/21

         Order of the General Court of 18 October 2011 — Confortel Gestión v OHIM — Homargrup (CONFORTEL AQUA 4)
   (Case T-521/10) (1)

   2011/C 362/33
   Language of the case: Spanish
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 30, 29.1.2011.


title: Case C-561/12: Judgment of the Court (Fourth Chamber) of 5 December 2013 (request for a preliminary ruling from the Riigikohus — Estonia) — Nordecon AS, Ramboll Eesti AS v Rahandusministeerium (Public procurement — Negotiated procedure with prior publication of a contract notice — Whether possible for the contracting authority to negotiate on tenders which do not comply with the mandatory requirements of the technical specifications relating to the contract)

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/16

         Judgment of the Court (Fourth Chamber) of 5 December 2013 (request for a preliminary ruling from the Riigikohus — Estonia) — Nordecon AS, Ramboll Eesti AS v Rahandusministeerium
   (Case C-561/12) (1)

   (Public procurement - Negotiated procedure with prior publication of a contract notice - Whether possible for the contracting authority to negotiate on tenders which do not comply with the mandatory requirements of the technical specifications relating to the contract)
   2014/C 45/28
   Language of the case: Estonian

      Referring court

   Riigikohus

      Parties to the main proceedings

      Appellants: Nordecon AS, Ramboll Eesti AS

      Respondents: Rahandusministeerium

      Re:

   Request for a preliminary ruling — Riigikohus — Interpretation of Article 30(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Negotiated procedure with publication of a contract notice — Whether or not possible for the contracting authority to enter into negotiations on tenders that do not satisfy the mandatory requirements of the technical specifications set out in the contract documents — Technical specifications amended during the negotiations — Whether the public contract may be awarded to a tenderer submitting a tender that does not meet those technical specifications.

      Operative part of the judgment

   Article 30(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts does not allow the contracting authority to negotiate with tenderers tenders that do not comply with the mandatory requirements laid down in the technical specifications of the contract.

      (1)  OJ C 38, 9.2.2013.


title: Case C-526/04: Reference for a preliminary ruling by the Court of Cassation, Commercial, Financial and Economic Division, France by order of that court of 14 December 2004 in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale (Central Agency for Social Security Bodies)

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/5

         Reference for a preliminary ruling by the Court of Cassation, Commercial, Financial and Economic Division, France by order of that court of 14 December 2004 in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale (Central Agency for Social Security Bodies)
   (Case C-526/04)
   (2005/C 69/11)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by order of the Court of Cassation, Commercial, Financial and Economic Division, France, of 14 December 2004, received at the Court Registry on 29 December 2004 for a preliminary ruling in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale on the following questions:

               1.

               Must Community law be interpreted as meaning that a pharmaceutical laboratory liable to pay a contribution such as that under Article 12 of Law No 97-1164 of 19 December 1997 on social security funding for 1998 is, in order to obtain its repayment, entitled to plead that the fact that wholesale distributors are not liable for that contribution constitutes State aid?

               2.

               If the answer to question 1 is in the affirmative and since the success of the claim for repayment may depend solely on evidence produced by the claimant, must Community law be interpreted as meaning that rules of national law, which make that repayment subject to proof by the claimant that the advantage received by the wholesale distributors exceeds the costs which they bear in discharging the public service obligations imposed on them by the national legislation or that the conditions laid down by the Court of Justice in Altmark are not satisfied, constitute rules of evidence which have the effect of making it practically impossible or excessively difficult to secure repayment of a mandatory contribution, such as that under Article 245-6-1 of the Social Security Code, which has been claimed before the competent authority, on the ground that the exemption from the contribution to which those wholesale distributors are entitled constitutes State aid which has not been notified to the Commission of the European Communities?


title: Case C-363/12: Judgment of the Court (Grand Chamber) of 18 March 2014 (request for a preliminary ruling from the Equality Tribunal — Ireland) — Z v A Government Department, The Board of Management of a Community School (Reference for a preliminary ruling  — Social policy  — Directive 2006/54/EC  — Equal treatment of male and female workers  — Commissioning mother who has had a baby through a surrogacy arrangement  — Refusal to grant her paid leave equivalent to maternity leave or adoptive leave  — United Nations Convention on the Rights of Persons with Disabilities  — Directive 2000/78/EC  — Equal treatment in employment and occupation  — Prohibition of any discrimination on the ground of disability  — Commissioning mother unable to bear a child  — Existence of a disability  — Validity of Directives 2006/54 and 2000/78)

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/7

         Judgment of the Court (Grand Chamber) of 18 March 2014 (request for a preliminary ruling from the Equality Tribunal — Ireland) — Z v A Government Department, The Board of Management of a Community School
   (Case C-363/12) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 2006/54/EC - Equal treatment of male and female workers - Commissioning mother who has had a baby through a surrogacy arrangement - Refusal to grant her paid leave equivalent to maternity leave or adoptive leave - United Nations Convention on the Rights of Persons with Disabilities - Directive 2000/78/EC - Equal treatment in employment and occupation - Prohibition of any discrimination on the ground of disability - Commissioning mother unable to bear a child - Existence of a disability - Validity of Directives 2006/54 and 2000/78))
   2014/C 142/07
   Language of the case: English

      Referring court

   Equality Tribunal

      Parties to the main proceedings

      Applicant: Z

      Defendant: A Government Department, The Board of Management of a Community School

      Re:

   Request for a preliminary ruling — Equality Tribunal (Ireland) — Interpretation of Articles 4 and 14 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23) — Interpretation of Articles 3(1) and 5 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Biological mother having recourse to surrogacy — Person suffering from a physical disability which prevents her from giving birth — Right to maternity leave.

      Operative part of the judgment

               1.

               Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, in particular Articles 4 and 14 thereof, must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex.
               The situation of such a commissioning mother as regards the grant of adoptive leave is not within the scope of that directive.

               2.

               Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability.
               The validity of that directive cannot be assessed in the light of the United Nations Convention on the Rights of Persons with Disabilities, but that directive must, as far as possible, be interpreted in a manner that is consistent with that Convention.

      (1)  OJ C 311, 13.10.2012.


title: Order of the Court of First Instance of 16 April 1999 in Case T-142/98: Image Création SA v Commission of the European Communities (Action for annulment - Withdrawal of the contested measure - Case not proceeding to judgment)

text:
28.8.1999             EN                       Official Journal of the European Communities                                           C 246/31
      ORDER OF THE COURT OF FIRST INSTANCE                                Commission of the European Communities (Agent: Marie
                                                                          Wolfcarius) — applications for annulment of the decision of
                        of 16 April 1999                                  the Commission to take no action on the complaints lodged
                                                                          by the applicant on 4 and 5 December 1996 respectively,
                                                                          criticising the unfair competition to which it was allegedly
in Case T-142/98: Image Création SA v Commission of                       being subjected — the Court of First Instance (First Chamber),
                the European Communities (1)                              composed of: B. Vesterdorf, President, and J. Pirrung and M.
                                                                          Vilaras, Judges; H. Jung, Registrar, made an order on 21 May
(Action for annulment — Withdrawal of the contested                       1999, the operative part of which is as follows:
        measure — Case not proceeding to judgment)
                                                                          1. Cases T-169/98 and T-170/98 are joined for the purposes of
                        (1999/C 246/62)                                        the order;
                                                                          2. The actions are dismissed as inadmissible;
                   (Language of the case: French)
                                                                          3. There is no need to rule on the application of the Council for
In Case T-142/98: Image Création SA, established in Brussels,                  leave to intervene;
represented by Georges Vandersanden, Eric Gillet and Laure
Levi, of the Brussels Bar, with an address for service in                 4. The applicant is to bear its own costs and to pay the costs
Luxembourg at the offices of Fiduciaire Myson SARL, 30 Rue                     incurred by the Commission;
de Cessange, v Commission of the European Communities
(Agents: Christina Tufvesson and Bernard Mongin) — appli-                 5. The Council, as applicant for leave to intervene, is to bear its own
cation for annulment of the decision of the Commission of 10                   costs.
June 1998 fixing in the sum of ECU 135 548 the amount
owed by the applicant in respect of the project ‘Troisième
contrat Europuzzle, broadcasting in 4 Eastern European                    (1) OJ C 378 of 5.12.1998.
countries, 52 clips’ and, in so far as may be necessary, for
annulment of the measures implementing that decision — the
Court of First Instance (Second Chamber), composed of A.
Potocki, President, and C.W. Bellamy and A.W.H. Meij, Judges;
H. Jung, Registrar, made an order on 16 April 1999, the
operative part of which is as follows:
1. There is no longer any need to give a decision on the application;     ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
2. The defendant is ordered to pay the costs.
                                                                                of 26 February 1999
(1) OJ C 340 of 7.11.1998.
                                                                          in Case T-203/98 R: Yannis Tzikis v Commission of the
                                                                                European Communities
                                                                          (Interlocutory proceedings — Suspension of operation of a
                                                                          measure — Disciplinary proceedings — Removal from post)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                                (1999/C 246/64)
                        of 21 May 1999
                                                                                (Language of the case: French)
in Joined Cases T-169/98 and T-170/98: Schiocchet v
       Commission of the European Communities (1)
                                                                          In Case T-203/98 R: Yannis Tzikis, an official of the Com-
(Action for annulment — Plea of illegality — Regulation                   mission of the European Communities, residing at Boortmeer-
(EEC) No 684/92 — International carriage of passengers by                 beek (Belgium), represented by Georges Vandersanden and
              coach and bus — Inadmissibility)                            Laure Levi, of the Brussels Bar, with an address for service in
                                                                          Luxembourg at the offices of Fiduciaire Myson SARL 30 Rue
                                                                          de Cessange, v Commission of the European Communities
                        (1999/C 246/63)                                   (Agents: Gianluigi Valsesia and Julian Currall) — application
                                                                          for suspension of operation of the decision of 27 October
                                                                          1998 by which the appointing authority imposed on the
                   (Language of the case: French)                         applicant the disciplinary measure of removal from post
                                                                          without reduction or withdrawal of entitlement to a retirement
In Joined Cases T-169/98 and T-170/98: Schiocchet, estab-                 pension as provided for in Article 86(2)(f) of the Staff
lished at Beuvillers (France), represented by Pascal Barbier, of          Regulations of officials of the European Communities — the
the Thionville Bar, with an address for service in Luxembourg             President of the Court of First Instance made an order on 26
at the office of Viva Vacances, 33 Rue de Strasbourg, v                   February 1999, the operative part of which is as follows:


title: Case T-316/05: Action brought on 12 August 2005 — Republic of Cyprus v Commission

text:
               29.10.2005

               EN

               Official Journal of the European Union

               C 271/23

         Action brought on 12 August 2005 — Republic of Cyprus v Commission
   (Case T-316/05)
   (2005/C 271/45)
   Language of the case: Greek
   Parties

      Applicant(s): Republic of Cyprus (represented by: Petros Kliridis)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               annul Regulation No 832/2005; (1)

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant puts forward the same pleas in law and main arguments that it has put forward in Case T-300/05.

      (1)  Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ No L 138, 1.6.2005, p. 3).


title: Case T-235/13: Action brought on 23 April 2013 — Gopack v Commission

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/38

         Action brought on 23 April 2013 — Gopack v Commission
   (Case T-235/13)
   2013/C 171/75
   Language of the case: French

      Parties

      Applicant: Gopack (Manosque, France) (represented by: J.-M. Leprêtre and N. Chahid-Nouraï, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul, with immediate effect, on the basis of Article 263 TFEU, Commission Directive 2013/2/EU of 7 February 2013 amending Annex I to Directive 94/62/EC of the European Parliament and of the Council on packaging and packaging waste, in so far as it adds rolls, tubes and cylinders, with the exception of those for industrial use, to the list of examples of packaging;

               —

               Order the European Commission to pay the costs in their entirety.

      Pleas in law and main arguments

   In support of the action, the applicant relies on six pleas in law which are in essence identical or similar to those relied on in Case T-202/13 Group’Hygiène v Commission.