title: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 20 June 1995 in the case of Ludwig Wünsche & Co. v. Hauptzollamt Hamburg-Jonas - Export refund department (Case C-275/95)

text:
 14 . 10 . 95          EN                    Official Journal of the European Communities                                 No C 268/ 15
     action against the Council of the European Union and               the Bundesfinanzhof ( Federal Finance Court ) of 20 June
     the joined party, the Kingdom of Spain, for the                     1 995 , which was received at the Court Registry on
     annulment of Article 115 of Council Regulation ( EC )              14 August 1995 , for a preliminary ruling in the case of
     No 40/94, and declare admissible the applicant's action            Ludwig Wunsche & Co . v . Hauptzollamt Hamburg-Jonas
     against the Council of the European Union and the                  — Export refund department — on the following
     Kingdom of Spain for the annulment of the said                     questions :
     Article 115 ,
                                                                        1 . Does the classification of esterified potato starch within
— order the Council to pay the costs of the appeal .                         tariff subheading 39.06 B I of the Common Customs
                                                                             Tariff 1987 or within tariff subheading 11.08 A IV of
Pleas in law and main arguments adduced in support:                          the Common Customs Tariff 1987 depend on its acetyl
The Court of First Instance wrongly held that the applicant                  content and consequently on the degree of its
                                                                             esterification ?
was affected solely in her objective capacity as a trade-mark
agent, in the same way as any other trade-mark agent                    2 . If the answer is in the affirmative : how high could the
finding himself, actually or potentially, in a comparable                    maximum acetyl content have been in the case of
situation as regards the use of the Dutch language . The                     esterified potato starch exported between April 1987
Court of First Instance overlooked, however, the fact that,                  and August 1987 so as not to preclude its classification
where a category of persons falls to be considered, it must                  within tariff subheading 11.08 A IV of the Common
necessarily be a valid category. In the present case, the Court              Customs Tariff 1987 ?
of First Instance has created a category which is incapable of
existing, since, according to Regulation No 1 of the Council
determining the languages to be used by the European
Community, any person established in an EC country may                  Reference for a preliminary ruling by the Bundesfinanzhof
use his own language .                                                  by order of that court of 20 June 1995 in the case of Ludwig
                                                                        Wiinsche & Co. v. Hauptzollamt Hamburg-Jonas —
                                                                                Export refund department
                                                                                Case C-2 76/95 )
Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 20 June 1995 in the case of Ludwig                                     ( 95/C 268/33 )
                                                                                \
Wunsche & Co v. Hauptzollamt Hamburg-Jonas — Export                     Reference has been made to the Court of Justice of the
                       refund department                                European Communities by order of the Seventh Chamber of
                          Case C-2 74/95                                the Bundesfinanzhof ( Federal Finance Court ) of 20 June
                          ( 95/C 268/31 )                               1995 , which was received at the Court Registry on
                                                                        14 August 1995 , for a preliminary ruling in the case of
Reference has been made to the Court of Justice of the                  Ludwig Wunsche & Co . v . Hauptzollamt Hamburg-Jonas
European Communities by order of the Seventh Chamber of                 — Export refund department — on the following
the Bundesfinanzhof ( Federal Finance Court ) of 20 June                questions :
1995 , which was received at the Court Registry on
14 August 1995 , for a preliminary ruling in the case of                1 . Does the classification of esterified potato starch within
Ludwig Wunsche & Co v . Hauptzollamt Hamburg-Jonas                           tariff subheading 39.06 B I of the Common Customs
— Export refund department — on the following                                Tariff 1987 or within tariff subheading 11.08 A IV of
questions :
                                                                             the Common Customs Tariff 1987 depend on its acetyl
                                                                             content and consequently on the degree of its
1 , does the tariff classification of esterified potato starch               esterification ?
     within subheading 3505 10 50 of the combined
     nomenclature depend on its acetyl content and                      2 . If the answer is in the affirmative: how high could the
     consequently on the degree of its esterification ?                      maximum acetyl content have been in the case of
                                                                             esterified potato starch exported between March 1987
2 . If the answer is in the affirmative : how high could the                 and December 1987 so as not to preclude its
     maximum acetyl content have been in the case of                         classification within tariff subheading 1 1.08 A IV of the
     esterified potato starch exported in February 1988 so as                Common Customs Tariff 1987 ?
     not to preclude its tariff classification within subheading
      1108 13 00 of the combined nomenclature ?
                                                                        Appeal brought on 14 August 1995 by Erika Lenz and
                                                                        Volker Lenz against the order made on 14 June 1995 by the
Reference for a preliminary ruling by the Bundesfinanzhof               Fourth Chamber of the Court of First Instance of the
by order of that court of 20 June 1995 in the case of Ludwig            European Communities in Joined Cases T-462/93 ,
Wunsche & Co. v. Hauptzollamt Hamburg-Jonas —                           T-464/93 and T-470/93 between Erika Lenz and Volker
                   Export refund department                             Lenz and the Commission of the European Communities
                        ( Case C-275 /95 )                                                    ( Case C-277/95 P )
                          ( 95/C 268/32 )                                                        ( 95/C 268/34 )
Reference has been made to the Court of Justice of the                  An appeal against the order made on 14 June 1995 by the
European Communities by order of the Seventh Chamber of                 Fourth Chamber of the Court of First Instance of the


title: Case T-452/11: Order of the General Court of 20 September 2012 — Western Digital and Western Digital Ireland v Commission

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/37

         Order of the General Court of 20 September 2012 — Western Digital and Western Digital Ireland v Commission
   (Case T-452/11) (1)

   2012/C 355/79
   Language of the case: English
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 305, 15.10.2011.


title: Case T-532/13: Action brought on 26 September 2013 — Kicks Kosmetikkedjan/OHMI — Kik Textilien und Non-Food (KICKS)

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/17

         Action brought on 26 September 2013 — Kicks Kosmetikkedjan/OHMI — Kik Textilien und Non-Food (KICKS)
   (Case T-532/13)
   2013/C 359/33
   Language in which the application was lodged: English

      Parties

      Applicant: Kicks Kosmetikkedjan AB (Stockholm, Sweden) (represented by: K. Strömholm, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Kik Textilien und Non-Food GmbH (Bönen, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Decision;

               —

               order the OHIM to pay the costs, or alternatively, if applicable, an intervening party to do so;

               —

               authorise the registration of the contested application No 9245473 in its entirety.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Kicks Kosmetikkedjan AB

      Community trade mark concerned: the verbal mark ‘KICKS’ for goods and services in classes 3, 8, 14, 21 and 35 — application No 9245473

      Proprietor of the mark or sign cited in the opposition proceedings: Kik Textilien und Non-Food GmbH

      Mark or sign cited in opposition: the German and international word mark ‘kik’ for services in class 35

      Decision of the Opposition Division: upheld the opposition for the contested goods and services

      Decision of the Board of Appeal: dismissal of the appeal

      Pleas in law: Violation of Article 8(1)(b) of Regulation No 207/2009.


title: Case F-121/13: Order of the Civil Service Tribunal (First Chamber) of 1 August 2016 — Poniskaitis v Commission (Civil Service — Officials — Pensions — Article 11(2) of Annex VIII to the Staff Regulations — Transfer to the EU pension scheme of pension rights acquired under other schemes — Decision on recognition of additional pensionable years applying the new GIP relating to Articles 11 and 12 of Annex VIII to the Staff Regulations — Article 81 of the Rules of Procedure — Action manifestly unfounded)

text:
               3.10.2016

               EN

               Official Journal of the European Union

               C 364/48

      Order of the Civil Service Tribunal (First Chamber) of 1 August 2016 — Poniskaitis v Commission
      (Case F-121/13) (1)

      ((Civil Service - Officials - Pensions - Article 11(2) of Annex VIII to the Staff Regulations - Transfer to the EU pension scheme of pension rights acquired under other schemes - Decision on recognition of additional pensionable years applying the new GIP relating to Articles 11 and 12 of Annex VIII to the Staff Regulations - Article 81 of the Rules of Procedure - Action manifestly unfounded))
      (2016/C 364/61)
      Language of the case: French

         Parties

         Applicant: Jonas Poniskaitis (Brussels, Belgium) (represented initially by: D. de Abreu Caldas and J.-N. Louis, lawyers, and subsequently by J.-N. Louis, lawyer)

         Defendant: European Commission (represented initially by: J. Currall and G. Gattinara, acting as Agents, and subsequently by G. Gattinara, acting as Agent)

         Re:

      Application for annulment of the decisions concerning the transfer of the applicant’s pension rights to the EU Pension scheme which applies the new GIP relating to Articles 11 and 12 of Annex VIII to the Staff Regulations.

         Operative part of the order

                  1.

                  The action is dismissed as being manifestly unfounded.

                  2.

                  Each party shall bear its own costs.

         (1)  OJ C 52, 22.2.2014, p. 53.


title: Case C-29/10: Reference for a preliminary ruling from the Cour d’appel (Luxembourg) lodged on 18 January 2010 — Heiko Koelzsch v État du Grand-Duché de Luxembourg

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/16

         Reference for a preliminary ruling from the Cour d’appel (Luxembourg) lodged on 18 January 2010 — Heiko Koelzsch v État du Grand-Duché de Luxembourg
   (Case C-29/10)
   2010/C 80/30
   Language of the case: French

      Referring court

   Cour d’appel

      Parties to the main proceedings

      Applicant: Heiko Koelzsch

      Defendant: État du Grand-Duché de Luxembourg

      Questions referred

   Is the rule of conflict in Article 6(2)(a) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations, (1) which states that an employment contract is governed by the law of the country in which the employee habitually carries out his work in performance of the contract, to be interpreted as meaning that, in the situation where the employee works in more than one country, but returns systematically to one of them, that country must be regarded as that in which the employee habitually carries out his work?

      (1)  Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1).


title: Case T-270/04: Action brought on 1 July 2004 by Bic Deutschland GmbH & Co OHG against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/30

         Action brought on 1 July 2004 by Bic Deutschland GmbH & Co OHG against the Commission of the European Communities
   (Case T-270/04)
   (2004/C 262/59)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 July 2004 by Bic Deutschland GmbH & Co OHG, established in Eschborn (Germany), represented by Dominique Voillemot, lawyer.
   The applicant claims that the Court should:

               —

               annul the Commission Decision of 3 May 2004 seeking payment from it of the fine which it imposed on the company Tipp-Ex by its decision of 10 July 1987 with interest calculated once and for all to 28 May 2004 and deciding to put into effect the bank guarantee provided by Deutsche Bank AG Frankfurt am Main;

               —

               order the defendant to pay all the costs.

         Pleas in law and main arguments:
   The applicant company is the successor in title to Tipp-Ex following the repurchase on 1 January 1997 and the subsequent internal restructuring of the BIC group. Tipp-Ex was the addressee of Decision No 87/406/EEC of 10 July 1987, by which the Commission imposed upon it a fine of ECU 400 000 for breach of Community competition rules.
   Tipp-Ex had brought an action against that decision and provided the Commission with a bank guarantee payable on first demand to guarantee payment of the fine plus interest at 8 %. In accordance with usual practice in that regard, that guarantee was to be honoured only upon a written demand from the Commission, with a certified copy of the Court's judgment. On 8 February 1990, (1) the Court dismissed Tipp-Ex's action and upheld the decision of 10 July 1987.
   It was only by letter of 12 February 2004 that the Commission requested payment from BIC of the amount of EUR 923 747.94, including the amount of the fine of EUR 400 000 and the additional amount of interest (EUR 523 747.94).
   Following an exchange of correspondence between the applicant and the Commission, the Commission, by the contested decision, rejected BIC's arguments, based in particular on the rule of limitation set out in Article 4(1) of Regulation No 2988/74 (2) and demanded payment of the definitive amount of the fine (EUR 931 726.02).
   In support of its claims, the applicant submits that:

               —

               there was a breach of Article 4(1) of the abovementioned Regulation No 2988/74 which does not permit execution of a decision imposing a fine after a period of five years has elapsed. It considers, in that regard, that the limitation period in question was neither interrupted nor suspended;

               —

               there was a manifest error of assessment regarding the functioning of the bank guarantee payable on first demand. The applicant contends, in that regard, on one hand, that the provision of such a guarantee does not constitute payment of the fine and that the mere holding of it does not, of itself, entail an obligation to make payment and, in addition, that the putting into effect of the bank guarantee requires an enforcement measure in accordance with Regulation No 2988/74. In accordance with the wording of the guarantee in question, that enforcement measure should consist of an express demand made by the Commission to Deutsche Bank, together with a certified copy of the judgment of the Court of Justice, sent by recorded delivery letter.

         Furthermore, the applicant submits that there was a breach of the principle of protection of legitimate expectations and, in the alternative, a breach of the general principle that measures should be taken within a reasonable time.

      (1)  Case C-279/98 Tipp-Ex v Commission [1990] ECR I-261.

      (2)  Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ L 319, 29.11.1974, p. 1).


title: Case C-494/13 P: Appeal brought on 16 September 2013 by GRE Grand River Enterprises Deutschland GmbH against the judgment of the General Court (Third Chamber) delivered on 3 July 2013 in Case T-205/12 GRE Grand River Enterprises Deutschland GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/16

         Appeal brought on 16 September 2013 by GRE Grand River Enterprises Deutschland GmbH against the judgment of the General Court (Third Chamber) delivered on 3 July 2013 in Case T-205/12 GRE Grand River Enterprises Deutschland GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-494/13 P)
   2013/C 325/28
   Language of the case: German

      Parties

      Appellant: GRE Grand River Enterprises Deutschland GmbH (represented by: I. Memmler and S. Schulz, Rechtsanwältinnen)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Villiger Söhne GmbH

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the judgment of the General Court of 3 July 2013 in Case T-205/12 and annul the decision of the First Board of Appeal of OHIM of 1 March 2012 in Case R 387/2011-1;

               —

               Order the defendant to bear the costs.

      Pleas in law and main arguments

   The appellant puts forward a single plea in law, namely misinterpretation and misapplication of Article 8(1)(b) of Regulation (EC) 207/2009. (1)

   In support of that plea, the appellant alleges that:

               The General Court misinterpreted the term ‘identity of the goods’ because it equated the goods ‘cigars’ with the generic term ‘tobacco products’. By so doing, the General Court unduly extended the scope of the opposing mark.

               The General Court misinterpreted the term ‘similarity of the goods’ because in assessing the similarity of the goods it also should not have sweepingly considered the individual goods ‘cigars’ to be similar to the generic term ‘smokers’ articles’.

               When comparing the signs, the General Court did not correctly apply the global assessment theory because it sweepingly compared the components ‘LIBERTAD’ and ‘LIBERTE’ and in so doing took no account of all the other components of the marks.

               In particular, several other components of the marks at issue have dominant aspects, including the colour combination of the mark at issue and the opposing figurative mark and the ‘LA’ label.

               The General Court also misapplied the principles established by the Court of Justice on conceptual similarity since it did not sufficiently take into account the different languages of the marks.

               Overall, the General Court thereby came to a wrong conclusion.

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


11.4.98              EN                 Official Journal of the European Communities                                C 113/21
the Basic Regulation, in particular with respect to the            Instance of the European Communities has ordered the
potential impact of definitive anti-dumping measures on            removal from the register of Case T-78/94: Hermann
importers/retailers and consumers. The procedure within            Cordes v. Council of the European Union and
the meaning of Article 21 requires an active analysis of           Commission of the European Communities.
the Community interest issues, at least to the extent that
these are raised by interested parties. Once legitimate            (1) OJ C 103, 11.4.1994.
points are raised in this context, the Commission is bound
either to agree and make recommendations accordingly to
the Council for its definitive measures, or to provide a
reasonable explanation of its decision to the contrary.
Neither of these steps was taken in this case, contrary to
the legitimate expectations of the applicants.                           Removal from the register of Case T-192/95 (1)
Finally, the applicants submit that the Council's decision                                 (98/C 113/52)
to impose definitive anti-dumping duties on top of the
existing quantitative restrictions on imports of the product                      (Language of the case: English)
concerned from two (India and Pakistan) of the three
exporting countries is contrary to the principle of                By order of 5 February 1998 the President of the Third
proportionality.                                                   Chamber, Extended Composition, of the Court of First
                                                                   Instance of the European Communities has ordered the
                                                                   removal from the register of Case T-192/95: Hitachi Ltd,
                                                                   Matsushita Electronics Corporation, Mitsubishi Electric
                                                                   Corporation, NEC Corporation, Oki Electric Industry Co.
                                                                   Ltd, Sanyo Electric Co. Ltd, Sharp Corporation and
      Removal from the register of Case T-191/93 (1)               Toshiba Corporation v. Commission of the European
                        (98/C 113/49)                              Communities.
               (Language of the case: German)                      (1) OJ C 351, 30.12.1995.
By order of 30 January 1998 the President of the First
Chamber, Extended Composition, of the Court of First
Instance of the European Communities has ordered the
removal from the register of Case T-191/93: Albrecht Graf
Brockdorff-Ahlefeldt v. Council of the European Union.                   Removal from the register of Case T-215/95 (1)
                                                                                (98/C 113/53)
(1) OJ C 270, 19.10.1992.
                                                                                (Language of the case: Italian)
                                                                   By order of 2 February 1998 the President of the Fourth
                                                                   Chamber, Extended Composition, of the Court of First
Removal from the register of Joined Cases T-207/93 and             Instance of the European Communities has ordered the
                         T-224/93 (1)                              removal from the register of Case T-215/95: Telecom Italia
                        (98/C 113/50)                              SpA v. Commission of the European Communities.
               (Language of the case: German)                      (1) OJ C 46, 17.2.1996.
By order of 30 January 1998 the President of the First
Chamber, Extended Composition, of the Court of First
Instance of the European Communities has ordered the
removal from the register of Joined Cases T-207/93 and
T-224/93: Hans-Erdmann von Flotow and Gunda                              Removal from the register of Case T-197/96 (1)
Bergmann v. Commission of the European Communities.
                                                                                (98/C 113/54)
(1) OJ C 270, 19.10.1992.
                                                                                (Language of the case: Italian)
                                                                   By order of 30 January 1998 the President of the Fourth
                                                                   Chamber of the Court of First Instance of the European
                                                                   Communities has ordered the removal from the register of
       Removal from the register of Case T-78/94 (1)               Case T-197/96: Consorzio del Formaggio Parmigiano
                                                                   Reggiano and Latteria Sociale Spadarotta soc. coop. arl v.
                        (98/C 113/51)
                                                                   Commission of the European Communities.
               (Language of the case: German)
                                                                   (1) OJ C 54, 22.2.1997.
By order of 30 January 1998 the President of the First
Chamber, Extended Composition, of the Court of First


title: Case C-324/09: Judgment of the Court (Grand Chamber) of 12 July 2011 (reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom)) — L'Oréal SA and Others v eBay International AG and Others (Trade marks — Internet — Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States — Removal of the packaging of the goods — Directive 89/104/EEC — Regulation (EC) No 40/94 — Liability of the online-marketplace operator — Directive 2000/31/EC ( ‘Directive on electronic commerce’ ) — Injunctions against that operator — Directive 2004/48/EC ( ‘Directive on the enforcement of intellectual property rights’ )

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/3

         Judgment of the Court (Grand Chamber) of 12 July 2011 (reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom)) — L'Oréal SA and Others v eBay International AG and Others
   (Case C-324/09) (1)

   (Trade marks - Internet - Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States - Removal of the packaging of the goods - Directive 89/104/EEC - Regulation (EC) No 40/94 - Liability of the online-marketplace operator - Directive 2000/31/EC (‘Directive on electronic commerce’) - Injunctions against that operator - Directive 2004/48/EC (‘Directive on the enforcement of intellectual property rights’)
   2011/C 269/05
   Language of the case: English

      Referring court

   High Court of Justice (Chancery Division)

      Parties to the main proceedings

      Applicants: L'Oréal SA, Lancôme parfums et beauté & Cie SNC, Laboratoire Garnier & Cie, L’Oréal (UK) Ltd

      Defendants: eBay International, eBay Europe SARL, eBay (UK) Ltd, Stephen Potts, Tracy Ratchford, Marie Ormsby, James Clarke, Joanna Clarke, Glen Fox, Rukhsana Bi

      Re:

   Reference for a preliminary ruling — Interpretation of Articles 5(1)(a) and 7(1) and (2) of Directive 89/104/EEC: First Council of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), of Articles 9(1)(a) and 13(1) and (2) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), of Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1) and of Article 11 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45) — Concept of ‘placing on the market’ — Samples of perfume and cosmetic products intended to be offered to consumers free of charge — Concept of the ‘use’ of a trade mark — Registration by a trader of a sign identical with a trade mark with a service provider operating an Internet search engine in order that, upon the sign in question being used as a search term, there should automatically appear on screen the URL of his website offering goods and services identical with those covered by the trade mark

      Operative part of the judgment

               1.

               Where goods located in a third State, which bear a trade mark registered in a Member State of the European Union or a Community trade mark and have not previously been put on the market in the European Economic Area or, in the case of a Community trade mark, in the European Union, (i) are sold by an economic operator on an online marketplace without the consent of the trade mark proprietor to a consumer located in the territory covered by the trade mark or (ii) are offered for sale or advertised on such a marketplace targeted at consumers located in that territory, the trade mark proprietor may prevent that sale, offer for sale or advertising by virtue of the rules set out in Article 5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, or in Article 9 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. It is the task of the national courts to assess on a case-by-case basis whether relevant factors exist, on the basis of which it may be concluded that an offer for sale or an advertisement displayed on an online marketplace accessible from the territory covered by the trade mark is targeted at consumers in that territory.

               2.

               Where the proprietor of a trade mark supplies to its authorised distributors items bearing that mark, intended for demonstration to consumers in authorised retail outlets, and bottles bearing the mark from which small quantities can be taken for supply to consumers as free samples, those goods, in the absence of any evidence to the contrary, are not put on the market within the meaning of Directive 89/104 and Regulation No 40/94.

               3.

               Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 must be interpreted as meaning that the proprietor of a trade mark may, by virtue of the exclusive right conferred by the mark, oppose the resale of goods such as those at issue in the main proceedings, on the ground that the person reselling the goods has removed their packaging, where the consequence of that removal is that essential information, such as information relating to the identity of the manufacturer or the person responsible for marketing the cosmetic product, is missing. Where the removal of the packaging has not resulted in the absence of that information, the trade mark proprietor may nevertheless oppose the resale of an unboxed perfume or cosmetic product bearing his trade mark, if he establishes that the removal of the packaging has damaged the image of the product and, hence, the reputation of the trade mark.

               4.

               On a proper construction of Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94, the proprietor of a trade mark is entitled to prevent an online marketplace operator from advertising — on the basis of a keyword which is identical to his trade mark and which has been selected in an internet referencing service by that operator — goods bearing that trade mark which are offered for sale on the marketplace, where the advertising does not enable reasonably well-informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the goods concerned originate from the proprietor of the trade mark or from an undertaking economically linked to that proprietor or, on the contrary, originate from a third party.

               5.

               The operator of an online marketplace does not ‘use’ — for the purposes of Article 5 of Directive 89/104 or Article 9 of Regulation No 40/94 — signs identical with or similar to trade marks which appear in offers for sale displayed on its site.

               6.

               Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as applying to the operator of an online marketplace where that operator has not played an active role allowing it to have knowledge or control of the data stored.
               The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them.
               Where the operator of the online marketplace has not played an active role within the meaning of the preceding paragraph and the service provided falls, as a consequence, within the scope of Article 14(1) of Directive 2000/31, the operator none the less cannot, in a case which may result in an order to pay damages, rely on the exemption from liability provided for in that provision if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously in accordance with Article 14(1)(b) of Directive 2000/31.

               7.

               The third sentence of Article 11 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as requiring the Member States to ensure that the national courts with jurisdiction in relation to the protection of intellectual property rights are able to order the operator of an online marketplace to take measures which contribute, not only to bringing to an end infringements of those rights by users of that marketplace, but also to preventing further infringements of that kind. Those injunctions must be effective, proportionate, and dissuasive and must not create barriers to legitimate trade.

      (1)  OJ C 267, 7.11.2009.


title: Judgment of the Court of First Instance of 14 December 2000 in Case T-213/99: Luc Verheyden v Commission of the European Communities (Officials — Action for annulment — Measures and instructions falling within the ambit of discipline in the workplace — Measure adversely affecting an official — Action for damages — Inadmissibility)

text:
C 134/20               EN                       Official Journal of the European Communities                                        5.5.2001
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                v European Parliament (Agents: H. von Hertzen and J. Sant’An-
                                                                           na) — application for annulment, first, of the decision of the
                      of 14 December 2000                                  European Parliament rejecting the application by the applicant
                                                                           for the post of Deputy Head of the French Translation Division,
in Case T-213/99: Luc Verheyden v Commission of the                        as referred to in Vacancy Notice No 8503, and, second, of the
                   European Communities (1)                                decision appointing Ms W. to that post — the Court of First
                                                                           Instance (First Chamber), composed of: B. Vesterdorf, President,
(Officials — Action for annulment — Measures and instruc-                  and M. Vilaras and N.J. Forwood, Judges; B. Pastor, Principal
tions falling within the ambit of discipline in the workplace              Administrator, for the Registrar, has given a judgment on
— Measure adversely affecting an official — Action for                     15 November 2000, in which it:
                  damages — Inadmissibility)
                                                                           1.    Annuls the decision of the European Parliament rejecting the
                          (2001/C 134/42)                                        application by the applicant and appointing Ms W. to the post
                                                                                of Deputy Head of the French Translation Division, as referred
                                                                                to in Vacancy Notice No 8503;
                   (Language of the case: French)
                                                                           2.    Orders the European Parliament to pay the costs.
In Case T-213/99: Luc Verheyden, an official of the Com-
mission of the European Communities, residing at Angera
(Italy), represented by E. Boigelot, of the Brussels Bar, with an          (1) OJ C 6 of 8.1.2000.
address for service in Luxembourg at the Chambers of
L. Schiltz, 2 Rue du Fort Rheinsheim, v Commission of the
European Communities (Agents: C. Berardis-Kayser and A. Dal
Ferro) — application, first, for annulment of the note dated
10 November 1998 from the head of the Logistics unit in
the Infrastructure Directorate for the Ispra site and of the
administration’s refusal dated 16 November 1998 to withdraw
that note, and, second, for compensation for the non-material
damage allegedly suffered — the Court of First Instance (Fifth                 JUDGMENT OF THE COURT OF FIRST INSTANCE
Chamber), composed of: P. Lindh, President, and R. Garcı́a-
Valdecasas and J.D. Cooke, Judges; B. Pastor, Principal Adminis-
trator, for the Registrar, has given a judgment on 14 December                                    of 31 January 2001
2000, in which it:
                                                                           in Case T-331/99: Mitsubishi HiTec Paper Bielefeld GmbH
1.    Dismisses the action as inadmissible;                                v Office for Harmonisation in the Internal Market (Trade
                                                                                marks and Designs) (OHIM) (1)
2.    Orders the parties to bear their own costs.
                                                                           (Community trade mark — Word mark Giroform — Absol-
(1) OJ C 333 of 20.11.1999.
                                                                           ute grounds for refusal — Article 7(1)(b) and (c) of
                                                                                Regulation (EC) No 40/94 — Descriptive character)
                                                                                (2001/C 134/44)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: German)
                     of 15 November 2000
                                                                           In Case T-331/99: Mitsubishi HiTec Paper Bielefeld GmbH,
  in Case T-261/99: Jean Dehon v European Parliament (1)                   formerly Stora Carbonless Paper GmbH, established in Bielefeld
                                                                           (Germany), represented by U. Ulrich, Rechtsanwalt, Düsseldorf,
(Officials — Promotion — Notice of vacancy — Examin-                       with an address for service in Luxembourg at the Office de
     ation of comparative merits — Equal opportunities)                    Brevets Ernest T. Freylinger, 234 Route d’Arlon, against Office
                                                                           for Harmonisation in the Internal Market (Trade marks and
                          (2001/C 134/43)                                  Designs) (OHIM) (Agents: E. Joly, P. von Kapff, and A. von
                                                                           Mühlendahl) — application for annulment of the decision of
                                                                           the Third Board of Appeal of the Office for Harmonisation in
                   (Language of the case: French)                          the Internal Market (Trade marks and Designs) of 8 September
                                                                           1999 in Case R 175/1999-3 refusing registration of the word
In Case T-261/99: Jean Dehon, an official of the European                  ‘Giroform’ as a Community trade mark — the Court of First
Parliament, residing at Hagen (Luxembourg), represented by                 Instance (Fourth Chamber), composed of: V. Tiili, President,
J.-N. Louis, G.-F. Parmentier and V. Peere, of the Brussels Bar,           R.M. Moura Ramos and P. Mengozzi, Judges; G. Herzig,
with an address for service in Luxembourg at the offices of                Administrator, for the Registrar, has given a judgment on
Société de Gestion Fiduciaire SARL, 13 Avenue du Bois,                     31 January 2001, in which it:


title: Action brought on 13 October 1997 by the Commission of the European Communities against Ireland (Case C-353/97)

text:
C 357/24                EN                 Official Journal of the European Communities                                       22 . 11 . 97
The Commission claims that the Court should :                              comply with Council Directive 92/104/EEC of
                                                                           3 December ' 1992 concerning the minimum
— declare that, by failing to bring into force within                      requirements for improving the safety and health
     the prescribed period the laws, regulations and                       protection of workers in the mineral-extracting
     administrative provisions necessary to comply with                    industries (') and/or by failing to inform the
                                                                           Commission thereof,
     Council Directive 94/28/EC of 23 June 1994 laying
     down the principles relating to the zootechnical and
     genealogical conditions applicable to imports from                    and
     third countries of animals, their semen, ova and
     embryos, and amending Directive 77/504/EEC on                    — order Ireland to bear the costs of the procedure.
     pure-bred breeding animals of the bovine species ( ! ),
     the Grand Duchy of Luxembourg has failed to fulfil
     its obligations pursuant to Article 13 of Directive 94/          Pleas in law and main arguments adduced in support:
     28/EC,
                                                                      Article 189 of the EC Treaty, under which a Directive
— order the Grand Duchy of Luxembourg to pay the                      shall be binding, as to the result to be achieved, upon each
     costs .                                                          Member State, carries by implication an obligation on the
                                                                      Member States to observe the period for compliance laid
                                                                      down in the Directive . That period expired on 3 December
Pleas in law and main arguments adduced in support:                   1994 without Ireland having enacted the provisions
                                                                      necessary to comply with the Directive referred to in the
Under the third paragraph of Article 189 of the Treaty                conclusions of the Commission .
establishing the European Community, a Directive is
binding on each Member State to which it is addressed as              (') Council Directive 92/ 104/EEC of 3 December 1992 on the
to the result to be achieved. Under the first paragraph of                minimum requirements for improving the safety and health
Article 5 of the Treaty, Member States are to take all                    protection of workers in surface and underground mineral
appropriate measures, whether general or particular, to                   extracting industries ( 12th individual Directive within the
ensure fulfilment of the obligations arising out of the                   meaning of Article 16 ( 1 ) of Directive 89/391 /EEC ( OJ L 404,
                                                                          31 . 12 . 1992 , p. 10 ).
Treaty or resulting from action taken by the institutions of
the Community. Under Article 13 of the Directive,
Member States are obliged to bring into force the laws,
regulations and administrative provisions necessary to
comply with the Directive by 1 July 1995 and inform the
Commission thereof forthwith . The Grand Duchy of
Luxembourg has not yet informed the Commission of any                 Action brought on 13 October 1997 by the Commission
measures it may have taken in accordance with that                             of the European Communities against Ireland
provision.                                                                                ( Case C-353/97)
                                                                                ( 97/C 357/44 )
(') OJ L 178 , 12 . 7. 1994, p . 66 .
                                                                      An action against Ireland was brought before the Court of
                                                                      Justice of the European Communities on 13 October 1997
                                                                      by the Commission of the European Communities,
                                                                      represented by Mr Pieter Jan Kuijper, Legal Adviser, acting
Action brought on 13 October 1997 by the Commission                   as Agent, with an address for service in Luxembourg at
         of the European Communities against Ireland                  the office of Carlos Gomez de la Cruz, member of its
                         ( Case C-352/97 )                            Legal Service, Centre Wagner, Kirchberg.
                           ( 97/C 357/43 )
                                                                      The applicant claims that the Court should:
An action against Ireland was brought before the Court of             — find that Ireland has failed to fulfil its obligations
Justice of the European Communities on 13 October 1997                     under the EC Treaty by failing to adopt the laws,
by the Commission of the European Communities,                             regulations or administrative provisions necessary
represented by Mr Pieter Jan Kuijper, Legal Adviser, acting                to comply with Council Directive 92/91 /EEC of
as Agent, with an address for service in Luxembourg at                     3 November 1992 concerning the minimum
the office of Carlos Gomez de la Cruz, member of its                       requirements for improving the safety and health
Legal Service, Centre Wagner, Kirchberg.                                   protection of workers in the mineral-extracting
                                                                           industries through drilling ('), and/or by failing to
                                                                           inform the Commission thereof,
The applicant claims that the Court should:
                                                                           and
— find that Ireland has failed to fulfil its obligations
    under the EC Treaty by failing to adopt the laws,
    regulations or administrative provisions necessary to             — order Ireland to bear the costs of the procedure .
 ---pagebreak--- 22 . 11 . 97             EN                    Official Journal of the European Communities                                   C 357/25
Pleas in law and main arguments adduced in support:                            — Commission Directive 95/9/EC of 7 April 1995
                                                                                amending Directive 94/39/EC establishing a list of
                                                                                intended uses of animal feedingstuffs for particular
Article 189 of the EC Treaty, under which a Directive                               nutritional purposes (4),
shall be binding, as to the result to be achieved, upon each
Member State, carries by implication an obligation on the                      — Commission Directive 95/1 0/EC of 7 April 1995
Member States to observe the period for compliance laid                             fixing the method of calculating the energy value
down in the Directive . That period expired on 3 November                           of dog and cat food intended for particular
1994 without Ireland having enacted the provisions                                  nutritional purposes ( 5 ),
necessary to comply with the Directive referred to in the
conclusions of the Commission .
                                                                               and/or by failing to notify the Commission thereof, the
(') Council Directive 92/91 /EEC of 3 November 1992 concerning
                                                                               French Republic has failed to fulfil its obligations
    the minimum requirements for improving the safety and health               under Article 12 of Directive 93/74/EEC, Article 13 of
    protection of workers in the mineral-extracting industries                 Directive 94/28/EC, Article 2 of Directive 94/39/EC,
    through drilling ( 11th individual Directive within the meaning            Article      2 of Directive 95/9/EC and Article 3 of
    of Article 16 ( 1 ) of Directive 89/391 /EEC ( OJ L 348 , 28 . 11 .        Directive 95/ 1 0/EC and under the EC Treaty,
    1992, p. 9 ).
                                                                          — order the French Republic to pay the costs.
                                                                          Pleas in law and main arguments adduced in support:
Action brought on 14 October 1997 by the Commission                       Under the third paragraph of Article 189 of the Treaty
of the European Communities against the French Republic                   establishing the European Community, a Directive is
                           ( Case C-3 54/97)
                                                                          binding on each Member State to which it is addressed as
                                                                          to the result to be achieved. Under the first paragraph of
                             ( 97/C 357/45 )                              Article 5 of the Treaty, Member States are to take all
                                                                          appropriate measures, whether general or particular, to
                                                                          ensure fulfilment of the obligations arising out of the
An action against the French Republic was brought before                  Treaty or resulting from action taken by the institutions of
the Court of Justice of the European Communities on                       the Community. Under the provisions of the Directives at
14 October 1997 by the Commission of the European                         issue, the Member States were obliged to bring into force
Communities, represented by Alexandre Xavier Lewis, of                    the laws, regulations and administrative provisions
its Legal Service, acting as Agent, with an address for                   necessary to comply with them by 30 June 1995 or 1 July
service in Luxembourg at the office of Carlos Gomez de la                 1995, as appropriate, and inform the Commission thereof
Cruz, Wagner Centre, Kirchberg.                                           forthwith. The French Republic has not yet informed the
                                                                          Commission of the provisions of national law adopted in
                                                                          order to transpose the Directives to which these
The Commission of the European Communities claims                         proceedings relate .
that the Court should :
                                                                          (>)  OJ L  237, 22 . 9 . 1993 , p . 23 .
                                                                          (2)  OJ L  178 , 12 . 7. 1994 , p . 66 .
— declare that, by failing to bring into force within                     (')  OJ L  207, 10 . 8 . 1994 , p . 20 .
     the prescribed periods the laws, regulations                         (4 ) OJ L  91 , 22 . 4 . 1995 , p. 35 .
                                                                          (5)  OJ L  91 , 22 . 4 . 1995 , p. 39 .
     and administrative provisions, including, where
     appropriate, any sanctions, necessary to comply with:
     — Council Directive 93/74/EEC of 13 September
          1993 on feedingstuffs intended for particular
          nutritional purposes ('),
                                                                                Removal from the register of Case C- 198/96 (')
     — Council Directive 94/28/EC of 23 June 1994                                                        ( 97/C 357/46 )
          laying down the principles relating to the
          zootechnical          and    genealogical       conditions
          applicable to imports from third countries of                   By order of 23 September 1997, the President of the Court
          animals, their semen, ova and embryos, and                      of Justice of the European Communities has ordered the
          amending Directive 77/504/EEC on pure-bred                      removal from the register of Case C-198/96 : Commission
          breeding animals of the bovine species ( 2 ),                   of the European Communities v. French Republic .
                                                                          (') OJ C 247, 24 . 8 . 1996 .
     — Commission Directive 94/39/EC of 25 July 1994
          establishing a list of intended uses of animal
          feedingstuffs for particular nutritional purposes ( 3 ),


title: Case C-55/01: Reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) — by order of that court of 23 November 2000 in the case of Rado Uhren AG

text:
C 150/8                  EN                     Official Journal of the European Communities                                       19.5.2001
1.    Declares that, by refusing to refund to taxable persons              Reference for a preliminary ruling from the Bundesge-
      established in a Member State other than the French Republic,        richtshof (Federal Court of Justice) — by order of that
      who are holders of a main contract for a composite supply of         court of 23 November 2000 in the case of Winward
      services relating to waste disposal, the value added tax which                                  Industries Inc.
      they have been required to pay to the French State in cases
      where they have subcontracted part of the work covered by such                                  (Case C-54/01)
      a contract to a taxable person established in France, the French
      Republic has failed to fulfil its obligations under the Eighth
      Council Directive 79/1072/EEC of 6 December 1979 on the                                        (2001/C 150/15)
      harmonisation of the laws of the Member States relating to
      turnover taxes — Arrangements for the refund of value added          Reference has been made to the Court of Justice of the
      tax to taxable persons not established in the territory of the       European Communities by an order of the Bundesgerichtshof
      country, in particular Article 2 thereof;                            of 23 November 2000, which was received at the Court
                                                                           Registry on 8 February 2001, for a preliminary ruling in the
2.    Dismisses the remainder of the application;                          case of Winward Industries Inc. on the following questions on
                                                                           the interpretation of Article 3(1)(b), (c) and (e) of the First
3.    Orders the French Republic to pay the costs.                         Council Directive 89/104/EEC of 21 December 1988 (1) to
                                                                           approximate the laws of the Member States relating to trade
(1) OJ C 55 of 20.02.1998.                                                 marks:
                                                                           1.    In determining whether a three-dimensional trade mark
                                                                                which depicts the shape of a product has distinctive
                                                                                character within the meaning of Article 3(1)(b) of the
                                                                                above directive is there a stricter test for distinctive
                                                                                character than in the case of other forms of trade marks?
Reference for a preliminary ruling from the Bundesge-
richtshof (Federal Court of Justice) — by order of that                    2.    In the case of three-dimensional trade marks which depict
    court of 23 November 2000 in the case of Linde AG                            the shape of the product, does Article 3(1)(c) of the
                                                                                Directive have any significance independently of
                                                                                Article 3(1)(e)? If so, when considering Article 3(1)(c) —
                           (Case C-53/01)                                        or alternatively Article 3(1)(e) — must regard be had to
                                                                                the interest of the trade in having the shape of the product
                          (2001/C 150/14)                                        available for use, so that registration is, at least in
                                                                                principle, ruled out and is possible as a rule only in the
Reference has been made to the Court of Justice of the                           case of trade marks which meet the requirements of
European Communities by an order of the Bundesgerichtshof                        Article 3(3), first sentence, of the directive?
of 23 November 2000, which was received at the Court
Registry on 8 February 2001, for a preliminary ruling in
the case of Linde AG on the following questions on the                     (1) OJ 1989 L 40, p. 1.
interpretation of Article 3(1)(b), (c) and (e) of the First Council
Directive 89/104/EEC of 21 December 1988 (1) to approximate
the laws of the Member States relating to trade marks:
1.    In determining whether a three-dimensional trade mark
      which depicts the shape of a product has distinctive
      character within the meaning of Article 3(1)(b) of the
      above directive is there a stricter test for distinctive             Reference for a preliminary ruling from the Bundesge-
      character than in the case of other forms of trade marks?            richtshof (Federal Court of Justice) — by order of that
                                                                           court of 23 November 2000 in the case of Rado Uhren
2.    In the case of three-dimensional trade marks which depict                                             AG
      the shape of the product, does Article 3(1)(c) of the
      Directive have any significance independently of                                                (Case C-55/01)
      Article 3(1)(e)? If so, when considering Article 3(1)(c) —
      or alternatively Article 3(1)(e) — must regard be had to
      the interest of the trade in having the shape of the product                                   (2001/C 150/16)
      available for use, so that registration is, at least in
      principle, ruled out and is possible as a rule only in the           Reference has been made to the Court of Justice of the
      case of trade marks which meet the requirements of                   European Communities by an order of the Bundesgerichtshof
      Article 3(3), first sentence, of the directive?                      of 23 November 2000, which was received at the Court
                                                                           Registry on 8 February 2001, for a preliminary ruling in the
(1) OJ 1989 L 40, p. 1.                                                    case of Rado Uhren AG on the following questions on the
                                                                           interpretation of Article 3(1)(b), (c) and (e) of the First Council
                                                                           Directive 89/104/EEC of 21 December 1988 (1) to approximate
                                                                           the laws of the Member States relating to trade marks:
 ---pagebreak--- 19.5.2001              EN                     Official Journal of the European Communities                                         C 150/9
1.   In determining whether a three-dimensional trade mark               Appeal brought on 19 February 2001 by Chronopost SA
     which depicts the shape of a product has distinctive                against the judgment delivered on 14 December 2000 by
     character within the meaning of Article 3(1)(b) of the              the Fourth Chamber (Extended Composition) of the Court
     above directive is there a stricter test for distinctive            of First Instance of the European Communities in Case
     character than in the case of other forms of trade marks?           T-613/97 between Union Française de l’Express (UFEX),
                                                                         DHL International, Federal Express International (France)
                                                                         and CRIE and the Commission of the European Communi-
2.   In the case of three-dimensional trade marks which depict           ties, supported by the French Republic, Chronopost SA
     the shape of the product, does Article 3(1)(c) of the                                          and La Poste
     Directive have any significance independently of
     Article 3(1)(e)? If so, when considering Article 3(1)(c) —
     or alternatively Article 3(1)(e) — must regard be had to                                     (Case C-83/01 P)
     the interest of the trade in having the shape of the product
     available for use, so that registration is, at least in                                      (2001/C 150/18)
     principle, ruled out and is possible as a rule only in the
     case of trade marks which meet the requirements of
                                                                         An appeal against the judgment delivered on 14 December
     Article 3(3), first sentence, of the directive?
                                                                         2000 by the Fourth Chamber (Extended Composition) of the
                                                                         Court of First Instance of the European Communities in Case
                                                                         T-613/97 between Union Française de l’Express (UFEX), DHL
(1) OJ 1989 L 40, p. 1.                                                  International, Federal Express International (France) and CRIE
                                                                         and the Commission of the European Communities, supported
                                                                         by the French Republic, Chronopost SA and La Poste, was
                                                                         brought before the Court of Justice of the European Communi-
                                                                         ties on 19 February 2001 by Chronopost SA, represented by
                                                                         V. Bouaziz Torron and D. Berlin, Avocats, with an address for
                                                                         service in Luxembourg.
                                                                         The appellant claims that the Court should:
                                                                         —     quash the decision of the Court of First Instance of
Reference for a preliminary ruling by the Dioikitiko                           14 December 2000 in so far as it annuls Article 1 of
Efeteio (Three-member Chamber C) Athens by order of                            Decision 98/365/EC on the ground that the Commission
that court of 26 October 2000 in the case of Makedoniko                        should have considered whether, on account of La Poste’s
                       Metro v Greek State                                     reserved rights, the charges applied by that undertaking
                                                                               for services to its subsidiary were based on costs lower
                                                                               than those which a private operator with no reserved
                          (Case C-57/01)                                       rights would have had to bear;
                                                                         —     declare that there is no need to refer the case back to the
                         (2001/C 150/17)                                       Court of First Instance; and give final judgment in the
                                                                               matter, in accordance with the first paragraph of
                                                                               Article 54 of the Statute of the Court of Justice;
Reference has been made to the Court of Justice of the
European Communities by order of the Dioikitiko Efeteio                  —     in those circumstances, and in so far as the Court of First
(Administrative Court of Appeal), Athens, of 26 October 2000                   Instance rejected all the other pleas in law raised by UFEX
which was received at the Court Registry on 9 February 2001,                   in support of its action for annulment, declare that the
for a preliminary ruling in the case of Makedoniko Metro v                     action brought by UFEX contesting Decision 98/365/EC
Greek State on the following questions:                                        was unfounded;
                                                                         —     in so far as, under Article 69(2) of the Rules of Procedure,
‘Must a change in the composition of an association participat-                the unsuccessful party is to be ordered to pay the costs if
ing in procedures for the award of a public-works contract,                    they have been applied for in the successful party’s
which occurs after submission of tenders and selection of the                  pleadings, and in so far as the pleadings submitted by
association as the provisional contractor and is tacitly accepted              UFEX before the Court of First Instance in support of its
by the awarding authority, be interpreted in such a way as to                  action for annulment must be rejected, UFEX and the
result in the loss of that association’s right to participate in the           other applicants must be regarded as having been unsuc-
procedure and, by extension, also of its right to, or interest in,             cessful in their pleadings, order UFEX and the other
the award of the contract for execution of the works? Is such                  applicants to pay the costs;
an interpretation consistent with the provisions and spirit of
Directives 93/37/EEC and 89/665/EEC?’                                    —     in the alternative, refer the case back to the Court of First
                                                                               Instance for judgment and order UFEX and the other
                                                                               applicants to bear the costs incurred by Chronopost in
                                                                               the proceedings both before the Court of First Instance
                                                                               and the Court of Justice.


title: Judgment of the Court (First Chamber) of 13 January 2005 in Case C-145/02 (reference for a preliminary ruling by the Bundesverwaltungsgericht): Land Nordrhein-Westfalen v Denkavit Futtermittel GmbH (Free movement of goods — Directive 70/524/EEC — Articles 28 EC and 30 EC — Additives — Harmonisation of national provisions relating to the vitamin D content of animal feedingstuffs — Legislation of a Member State prohibiting the importation of animal feedingstuffs which have been lawfully manufactured in another Member State and the vitamin D3 content of which exceeds that authorised in that first State)

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/3

      JUDGMENT OF THE COURT

   (First Chamber)
   of 13 January 2005
   in Case C-145/02 (reference for a preliminary ruling by the Bundesverwaltungsgericht): Land Nordrhein-Westfalen v Denkavit Futtermittel GmbH (1)

   (Free movement of goods - Directive 70/524/EEC - Articles 28 EC and 30 EC - Additives - Harmonisation of national provisions relating to the vitamin D content of animal feedingstuffs - Legislation of a Member State prohibiting the importation of animal feedingstuffs which have been lawfully manufactured in another Member State and the vitamin D3 content of which exceeds that authorised in that first State)
   (2005/C 57/04)
   Language of the case: German
   In Case C-145/02: reference to the Court under Article 234 EC from the Bundesverwaltungsgericht (Federal Administrative Court)(Germany), made by decision of 31 January 2002, received at the Court on 18 April 2002, in the proceedings between Land Nordrhein-Westfalen and Denkavit Futtermittel GmbH – the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 13 January 2005, in which it has ruled:
   The combined provisions of Articles 12 and 19 of Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs, as amended by Council Directive 84/587/EEC of 29 November 1984, must be interpreted as precluding a measure by which a Member State prohibits the marketing within its territory of a supplementary feedingstuff lawfully manufactured in another Member State in accordance with Article 12(1) of that directive on grounds of its vitamin D level.

      (1)  OJ C 144 of 15.06.2002.


title: Case C-263/03: Action brought on 17 June 2003 by the Commission of the European Communities against the French Republic

text:
23.8.2003             EN                           Official Journal of the European Union                                        C 200/15
On a proper construction of Regulation EEC No 3950/92 (1) of               imports, since it allows the authorities an excessive degree of
28 December 1992 (in particular Articles 1, 2 and 9(g) thereof)            latitude and does not require them to take a decision within a
and Regulation EEC No 536/93 (2) of 9 March 1993 (in parti-                brief and precisely determined period. In the case of parallel
cular Articles 1, 2 and 3 thereof), is the transfer of a quantity of       imports of medicines, that barrier goes well beyond what is
milk by the producer to a third party, while retaining the right           necessary for the protection of public health.
of property in it, in performance of a contract for the proces-
sing of the milk and in order to manufacture cheese, butter and
whey, for consideration, to be classified as ‘delivery’ or ‘direct
sale’ for the purposes of determining milk quotas and whether
the additional levy is to be applied?
(1) OJ L 405 of 31.12.1992, p. 1.
(2) OJ L 57 of 10.03.1993, p. 12.
                                                                           Action brought on 17 June 2003 by the Commission of
                                                                             the European Communities against the French Republic
                                                                                (Case C-264/03)
                                                                                (2003/C 200/27)
Action brought on 17 June 2003 by the Commission of
  the European Communities against the French Republic
                                                                           An action against the French Republic was brought before the
                                                                           Court of Justice of the European Communities on 17 June
                         (Case C-263/03)                                   2003 by the Commission of the European Communities,
                                                                           represented by B. Stromsky, K. Wiedner and F. Simonetti,
                                                                           acting as Agents, with an address for service in Luxembourg.
                         (2003/C 200/26)
                                                                           The Commission of the European Communities claims that the
                                                                           Court should:
An action against the French Republic was brought before the
Court of Justice of the European Communities on 17 June
2003 by the Commission of the European Communities,                        1.    declare that, by reserving, in Article 4 of the Law of
represented by B. Stromsky, acting as Agent, with an address                     12 July 1985, delegated management contracts to an
for service in Luxembourg.                                                       exhaustive list of legal entities governed by French law,
                                                                                the French Republic has failed to fulfil its obligations
                                                                                under Directive 92/50/EEC (1), and in particular
The Commission of the European Communities claims that the                       Articles 8 and 9 thereof, and under Article 49 of the
Court should:                                                                    Treaty establishing the European Community;
1.    declare that, in so far as the French legislation in force           2.    order the French Republic to pay the costs.
      subjects imports of medicines from other Member States
      of the European Community, when they are identical to
      medicines already authorised in France (parallel imports),
      to unreasonable conditions, in particular as regards the
      discretionary power granted to the authorities and the               Pleas in law and main arguments
      absence of a prescribed period within which they must
      take a decision, the French Republic has failed to fulfil its
      obligations under Article 28 of the Treaty establishing the          Reserving delegated management contracts to certain legal
      European Community;                                                  entities governed by French law constitutes a breach of Direc-
                                                                           tive 92/50/EEC and a restriction on the principle of the
2.    order the French Republic to pay the costs.                          freedom to provide services laid down in Article 49 of the
                                                                           Treaty which is not justified under the exception provided for
                                                                           in Article 45 of the Treaty.
                                                                           The management contract is a public service contract within
Pleas in law and main arguments                                            the meaning of Article 1(a) of Directive 92/50. Moreover,
                                                                           management contracts fall within Category No 12 of
                                                                           Annex IA, apart from contracts exclusively or principally
The situation called in question essentially results from the              concerning representative tasks, so that the French legislation
absence of a specific procedure for authorising parallel imports           fails to comply with Article 8 of the Directive. Management
of medicines in French territory. The general procedure for the            contracts which relate exclusively or principally to representa-
prior authorisation of the import of medicines which is there-             tive tasks come under Annex IB of the Directive, so that the
fore applicable constitutes a barrier to imports and a measure             French legislation fails to comply with Article 9 of the Direc-
having equivalent effect to a quantitative restriction on                  tive as well.


title: Case C-470/06: Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Konstantinos Xidias kai Sia OE v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/4

         Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Konstantinos Xidias kai Sia OE v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   (Case C-470/06)
   (2007/C 20/05)
   Language of the case: Greek
   Referring court
   Efetio Athinon
   Parties to the main proceedings

      Claimant: Konstantinos Xidias kai Sia OE

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

               1.

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

               2.

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

               2.1

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

               2.2

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

                           (a)

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

                           (b)

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

               2.3

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


title: Judgment of the Court of First Instance of 12 December 2002 in Case T-39/01: Kabushiki Kaisha Fernandes v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Earlier word mark HIWATT — Application for Community word mark HIWATT — Proof of genuine use of earlier mark — Article 43(2) and (3) of Regulation (EC) No 40/94 and Rule 22 of Regulation (EC) No 2868/95)

text:
C 44/26                  EN                          Official Journal of the European Union                                        22.2.2003
with an address for service in Luxembourg, against Com-                      the other party before the Court being Richard John Harrison,
mission of the European Communities (Agents: C. Berardis-                    of Doncaster, South Yorkshire (United Kingdom), represented
Kayser and D. Waelbroeck) — application for annulment of                     by M. Edenborough, Barrister, and S. Pilling, Solicitor: Action
the Commission’s decision not to appoint the applicant to the                brought against the decision of the First Board of Appeal of
post of Head of Unit 3 ‘Distributive trade and other services’               the Office for Harmonisation in the Internal Market (Trade
within Directorate D ‘Services’ within the Directorate-General               Marks and Designs) of 4 December 2000 (Case R 116/2000-
for Competition (COM/001/00) and of its decision to appoint                  1), the Court of First Instance (Fourth Chamber), composed of:
a different applicant to the post and an application for damages             M. Vilaras, President, V. Tiili and P. Mengozzi, Judges; J. Plin-
— the Court of First Instance (Third Chamber), composed of                   gers, Administrator, for the Registrar, has given a judgment on
M. Jaeger, President, and K. Lenaerts and J. Azzizi, Judges;                 12 December 2002, in which it:
J. Palacio González, Principal Administrator, for the Registrar,
gave a judgment on 12 December 2002, in which it:
                                                                             1.     Dismisses the application;
1.     Annulled the Commission’s decisions of 4 March 2000                   2.     Orders the applicant to pay the costs.
       appointing Mrs Evans to the post of Head of Unit 3
       ‘Distributive trade and other services’ within Directorate D
       ‘Services’ within the Directorate-General for Competition and         (1 ) OJ C 150 of 19.5.2001.
       dismissing the applicant’s application for that post;
2.     Ordered the Commission to pay the applicant EUR 2 500;
3.     Dismissed the remainder of the action;
4.     Ordered the Commission to pay the costs.                                   JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 28 November 2002
( 1) OJ C 45 of 10.2.2001.
                                                                             in Case T-40/01: Scan Office Design SA v Commission of
                                                                                the European Communities (1)
                                                                             (Public procurement — Supply of office furniture — Actions
                                                                                for damages)
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                                            (2003/C 44/49)
                                                                                (Language of the case: French)
                        of 12 December 2002
in Case T-39/01: Kabushiki Kaisha Fernandes v Office for
Harmonisation in the Internal Market (Trade Marks and                        In Case T-40/01: Scan Office Design SA, a company established
                         Designs) (OHIM) ( 1)                                in Brussels, represented by B. Mertens and C. Steyaert, Lawyers,
                                                                             against Commission of the European Communities (Agents:
                                                                             L. Parpala and D. Martin) — application for compensation of
(Community trade mark — Opposition procedure — Earlier                       damages allegedly sustained by the applicant as a result of the
word mark HIWATT — Application for Community word                            Commission’s decision to award to a third party the contract
mark HIWATT — Proof of genuine use of earlier mark —                         which was the subject of its call for tenders No 96/31/IX.C1
Article 43(2) and (3) of Regulation (EC) No 40/94 and Rule                   for the supply of office furniture — the Court of First Instance
                 22 of Regulation (EC) No 2868/95)                           (Third Chamber), composed of M. Jaeger, President, and
                                                                             K. Lenaerts and J. Azizi, Judges; J. Palacio González, Adminis-
                                                                             trator, for the Registrar, gave a judgment on 28 December
                            (2003/C 44/48)                                   2002, in which it:
                     (Language of the case: English)                         1.     Dismissed the action;
                                                                             2.     Ordered the Commission to pay the costs.
In Case T-39/01, Kabushiki Kaisha Fernandes, established in
                                                                             (1 ) OJ C 150 of 19.5.2001.
Tokyo (Japan), represented by R. Hacon, N. Phillips and
I. Wood, lawyers, v Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) (Agent: S. Laitinen),


title: Case T-276/01: Action brought on 26 October 2001 by Mély Garroni against European Parliament

text:
5.1.2002              EN                      Official Journal of the European Communities                                         C 3/47
Pleas in law and main arguments                                          on 26 October 2001 by Mély Garroni, residing in Rome,
                                                                         represented by Georges Vandersanden, lawyer.
The applicant is a freelance interpreter who has worked
regularly for the European Parliament since 1986. She has also           The applicant claims that the Court should:
worked regularly in the same capacity for the Commission. In
the course of the month in which she reached the age of 65,
the applicant was informed orally that the Commission had                —     annul the inter-institutional decision of the European
purportedly adopted a decision providing that, under a full                    Union, as referred to in the letter from G. Macario of
application of Article 78 of the Conditions of Employment of                   24 January 2001, rendering henceforth impossible for
Other Servants of the European Communities (CEOS), free-                       the European Parliament, as a result of the application of
lance interpreters could no longer be engaged beyond the age                   Article 78 CEOS, as amended, to retain or recruit freelance
of 65. In December 2000 the applicant learned informally that                  interpreters — such as the applicant — beyond the age
the European Parliament was obliged to apply that decision                     of 65 years;
with effect from 1 April 2001.
                                                                         —     in so far as necessary, annul the decision of the President
                                                                               of the European Parliament, contained in a letter of
The applicant, among others, lodged a complaint against the                    20 July 2001, rejecting the applicant’s complaint;
memorandum informing her of the inter-institutional decision
no longer to recruit freelance interpreters over the age of 65
years. The President of the European Parliament rejected that            —     consequently uphold the applicant’s right to continue to
complaint.                                                                     provide services to the European Parliament — or any
                                                                               other institution — beyond the age-limit of 65 years;
In support of her application, the applicant claims that                 —     order provisional payment of one euro to the applicant
Article 78 CEOS cannot be relied upon as a basis for a rule                    by way of compensation for the material and non-
setting the age of 65 years as a limit for freelance interpreters.             material damage suffered;
That provision is a derogation from the Staff Regulations and
refers to an agreement between the European Parliament, the              —     order the defendant to pay all the costs.
Council of Europe and the Assembly of the Western European
Union. Article 78 makes no mention, either express or implied,
of Article 74 CEOS which provides for the termination of
auxiliary staff contracts; moreover, freelance interpreters do
not have a contract within the meaning of Article 74 CEOS.               Pleas in law and main arguments
The applicant pleads, furthermore, breach of the principle of            The pleas in law and main arguments are similar to those
non-retroactivity and of the principle of non-discrimination             relied upon in Case T-275/01 Alvarez Moreno v Parliament.
and of acquired rights, legitimate expectations, sound adminis-
tration and legal certainty. In addition to her claims for
annulment, the applicant also seeks compensation for the
material and non-material damage allegedly suffered.
                                                                         Action brought on 26 October 2001 by Romuald Stevens
                                                                             against Commission of the European Communities
Action brought on 26 October 2001 by Mély Garroni                                                (Case T-277/01)
                 against European Parliament
                                                                                (2002/C 3/82)
                        (Case T-276/01)
                                                                                (Language of the case: French)
                         (2002/C 3/81)
                   (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 26 October 2001 by Romuald
An action against the European Parliament was brought before             Stevens, residing in Bertem (Belgium), represented by Jean-
the Court of First Instance of the European Communities                  Noël Louis and Véronique Peere, lawyers.


title: Case C-472/12: Judgment of the Court (Tenth Chamber) of 17 July 2014 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Panasonic Italia SpA, Panasonic Marketing Europe GmbH, Scerni Logistics S.r.l. v Agenzia delle Dogane di Milano (Reference for a preliminary ruling — Regulation (EEC) No 2658/87 — Common Customs Tariff — Tariff classification — Combined Nomenclature — Headings 8471 and 8528 — Plasma screens — Function as computer screen — Potential function as a television screen, after insertion of a video card)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/5

         Judgment of the Court (Tenth Chamber) of 17 July 2014 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Panasonic Italia SpA, Panasonic Marketing Europe GmbH, Scerni Logistics S.r.l. v Agenzia delle Dogane di Milano
   (Case C-472/12) (1)

   ((Reference for a preliminary ruling - Regulation (EEC) No 2658/87 - Common Customs Tariff - Tariff classification - Combined Nomenclature - Headings 8471 and 8528 - Plasma screens - Function as computer screen - Potential function as a television screen, after insertion of a video card))
   2014/C 315/07
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Parties to the main proceedings

      Applicants: Panasonic Italia SpA, Panasonic Marketing Europe GmbH, Scerni Logistics S.r.l.

      Defendant: Agenzia delle Dogane di Milano

      Operative part of the judgment

               1.

               For the purpose of tariff classification in the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions resulting successively from Commission Regulation (EC) No 2388/2000 of 13 October 2000, Commission Regulation (EC) No 2031/2001 of 6 August 2001, Commission Regulation (EC) No 1832/2002 of 1 August 2002, and Commission Regulation (EC) No 1789/2003 of 11 September 2003 of screens with the objective characteristics at issue in the main proceedings, account should be taken of their inherent intended purpose, which consists in reproducing the data from an automatic data-processing machine and from composite video signals. Such screens must be classified under subheading 8471 60 90 of the Combined Nomenclature if they are used solely or mainly in an automatic data-processing system, within the meaning of Note 5B(a) of Chapter 84 of the Combined Nomenclature, or under subheading 8528 21 90 thereof if that is not the case, which is a matter for the national court to determine on the basis of the objective characteristics of the screens at issue in the main proceedings, and in particular those mentioned in the Explanatory Notes relating to heading 8471 of the Harmonised Commodity Description and Coding System established by the International Convention on the Harmonised Commodity Description and Coding System concluded in Brussels on 14 June 1983, with its amending protocol of 24 June 1986, in particular in points 1 to 5 of the part of Chapter I D relating to display units for automatic data-processing machines;

               2.

               Commission Regulation (EC) No 754/2004 of 21 April 2004 concerning the classification of certain goods in the Combined Nomenclature cannot be applied retroactively.

      (1)  OJ C 399, 22.12.2012.


title: Notice of an open competition

text:
5.5.2000        EN                       Official Journal of the European Communities                                   C 126/3
                                                                III
                                                              (Notices)
                                             COURT OF JUSTICE
                                             NOTICE OF AN OPEN COMPETITION
                                                        (2000/C 126/03)
         The Court of Justice of the European Communities will be publishing in the Official Journal of the European
         Communities C 126 A of 5 May 2000 the following Notice of open competition:
         Spanish edition:
         CJ/LA/1 (Interpreters of Spanish mother-tongue)
         To obtain a copy of this Official Journal please apply to the Personal Division of the Court of Justice of the
         European Communities, L-2925 Luxembourg.
         Closing date for application: 29 June 2000.