title: Case C-183/00: Reference for a preliminary ruling by the Juzgado de Primera Instancia e Instrucción No 5 de Oviedo (Court of First Instance and Preliminary Investigations, No 5, Oviedo) by order of that court of 13 April 2000 in the case of Victoria González Sánchez v Medicina Asturiana SA

text:
C 192/14                EN                    Official Journal of the European Communities                                           8.7.2000
3. Does the fact that a body uses surpluses which it systemati-          3. Must        Article      1(e)     of     Commission      Decision
     cally aims to make for the purpose of its benefits in the                No 94/698/EC (2) be interpreted as meaning that, by mak-
     form of a facility to play a type of sport as provided for               ing approval of the aid which it provides for subject to the
     in Article 13(A)(1)(m) of the Sixth Directive justify the                condition that Portugal honour the undertaking to apply
     conclusion that it does not aim to make a profit within the              Article 4 of Regulation (EEC) No 2408/92 to the Auton-
     meaning of that provision, or is such a conclusion                       omous Regions, with effect from 1 January 1996, by
     possible only where the intention is incidentally and not                publishing the public service obligations for the routes in
     systematically to make operating surpluses which are used                question (‘pursuant to Chapter IV, point III’), Portugal is
     as described? In answering these questions must account                  precluded from exercising the power granted to Member
     also be taken of the first indent of Article 13(A)(2) of the             States by Article 3(2)?
     Sixth Directive and, if so, how is that provision to be
     interpreted? In particular, in the second part of the
     provision must ‘systematically’ be read between ‘arising’
                                                                         (1) Council Regulation (EEC) No 2408/92 of 23 July 1992 on access
     and ‘shall’, or ‘merely incidentally’?
                                                                             for Community air carriers to intra-Community air routes (OJ
                                                                             1992 L 240, p. 8).
                                                                         (2) Commission Decision 94/698/EC of 6 July 1994 concerning
                                                                             increase in capital, credit guarantees and tax exemption in favour
                                                                             of TAP (Transportes Aéreos Portugueses) (OJ 1994 L 279, p. 29).
Reference for a preliminary ruling by the Plenary of the
First Chamber of the Supremo Tribunal Administrativo,
by judgment of that court of 13 April 2000 in the case of
Flightline Ltd against Secretário de Estado dos Transpor-               Reference for a preliminary ruling by the Juzgado de
tes e Comunicações and TAP — Transportes Aéreos                         Primera Instancia e Instrucción No 5 de Oviedo (Court
                          Porguueses, SA                                 of First Instance and Preliminary Investigations, No 5,
                                                                         Oviedo) by order of that court of 13 April 2000 in the
                                                                         case of Victoria González Sánchez v Medicina Asturiana
                          (Case C-181/00)                                                                   SA
                         (2000/C 192/24)                                                            (Case C-183/00)
Reference has been made to the Court of Justice of the                                              (2000/C 192/25)
European Communities by judgment of the Plenary of the First
Chamber of the Supremo Tribunal Administrativo (Supreme
                                                                         Reference has been made to the Court of Justice of the
Administrative Court) of 13 April 2000, which was received
                                                                         European Communities by order of the Juzgado de Primera
at the Court Registry on 15 May 2000, for a preliminary ruling
                                                                         Instancia e Instrucción No 5 de Oviedo of 13 April 2000,
in the case of Flightline Ltd against Secretário de Estado dos
                                                                         received at the Court Registry on 16 May 2000, for a
Transportes e Comunicações and TAP — Transportes Aéreos
                                                                         preliminary ruling in the case of Victoria González Sánchez v
Porguueses, SA on the following question:
                                                                         Medicina Asturiana SA on the following question:
1. Does the exercise by a Member State of the rights and
     powers provided for by Article 4 of Council Regulation              Must Article 13 of Council Directive 85/374/EEC (1) of 25 July
     (EEC) No 2408/92 (1) of 23 July 1992 necessarily presup-            1985 on the approximation of the laws, regulations and
     pose or mean that the power provided for in Article 3(2)            administrative provisions of the Member States concerning
     of that regulation of that Member State to be able to               liability for defective products be interpreted as meaning that
     restrict, until 1 April 1997, competition in cabotage               it precludes the restriction or limitation, as a result of
     services within its territory is waived?                            transposition of the Directive, of rights which had been granted
                                                                         to consumers by the legislation of the Member State?
2. May a Member State in a public tender procedure organised
     in 1995 for the provision of scheduled air services on a
     route subject to public service obligations imposed on              (1) OJ L 210, p. 29.
     such a route under Article 4 of the Regulation require air
     carriers licensed by another Member State which submit
     bids to meet the conditions laid down in Article 3(2) of
     that same regulation?


title: Case C-123/10: Judgment of the Court (Fourth Chamber) of 20 October 2011 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Waltraud Brachner v Pensionsversicherungsanstalt (Social policy — Equal treatment for men and women in matters of social security — Directive 79/7/EEC — Articles 3(1) and 4(1) — National scheme for annual pension adjustments — Exceptional increase in pensions for the year 2008 — Exclusion from that increase of pensions of an amount lower than the compensatory supplement standard rate — Exceptional increase in that standard rate for the year 2008 — Exclusion from entitlement to the compensatory supplement of pensioners whose income, including that of the spouse forming part of their household, exceeds that standard rate — Scope of application of the directive — Indirect discrimination against women — Justification — No justification)

text:
               10.12.2011

               EN

               Official Journal of the European Union

               C 362/7

         Judgment of the Court (Fourth Chamber) of 20 October 2011 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Waltraud Brachner v Pensionsversicherungsanstalt
   (Case C-123/10) (1)

   (Social policy - Equal treatment for men and women in matters of social security - Directive 79/7/EEC - Articles 3(1) and 4(1) - National scheme for annual pension adjustments - Exceptional increase in pensions for the year 2008 - Exclusion from that increase of pensions of an amount lower than the compensatory supplement standard rate - Exceptional increase in that standard rate for the year 2008 - Exclusion from entitlement to the compensatory supplement of pensioners whose income, including that of the spouse forming part of their household, exceeds that standard rate - Scope of application of the directive - Indirect discrimination against women - Justification - No justification)
   2011/C 362/09
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: Waltraud Brachner

      Defendant: Pensionsversicherungsanstalt

      Re:

   Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 4 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24) — Increase in pensions — Indirect discrimination against women — National legislation which, for a group of persons receiving a pension lower than the minimum subsistence income and which is made up primarily of women, provides for a smaller pension increase than for those receiving higher pensions

      Operative part of the judgment

               1.

               Article 3(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that an annual pension adjustment scheme such as that at issue in the main proceedings comes within the scope of that directive and is therefore subject to the prohibition of discrimination laid down in Article 4(1) of that directive.

               2.

               Article 4(1) of Directive 79/7 must be interpreted as meaning that, taking into account the statistical data produced before the referring court and in the absence of evidence to the contrary, that court would be justified in taking the view that that provision precludes a national arrangement which leads to the exclusion, from an exceptional pension increase, of a significantly higher percentage of female pensioners than male pensioners.

               3.

               Article 4(1) of Directive 79/7 must be interpreted as meaning that if, in the examination which the referring court must carry out in order to reply to the second question, it should conclude that a significantly higher percentage of female pensioners than male pensioners may in fact have suffered a disadvantage because of the exclusion of minimum pensions from the exceptional increase provided for by the adjustment scheme at issue in the main proceedings, that disadvantage cannot be justified by the fact that women who have worked become entitled to a pension at an earlier age or that they receive their pension over a longer period, or because the compensatory supplement standard rate was also subject to an exceptional increase in respect of the same year 2008.

      (1)  OJ C 148, 5.6.2010.


title: Case T-194/99: Action brought on 30 August 1999 by Cristiano Sebastiani against the Commission of the European Communities

text:
30.10.1999              EN                   Official Journal of the European Communities                                       C 314/13
would not automatically have become inapplicable on the                 Action brought on 30 August 1999 by Cristiano Sebasti-
introduction of the euro. Nor could the decision of the Board           ani against the Commission of the European Communities
of Directors of 23 February 1999 have given the abolition of
the mechanism retroactive force by ‘confirming’ a non-existent                                  (Case T-194/99)
decision of the Management Committee. It would follow
that the mechanism remained applicable in principle to the
remuneration of all the staff at the Bank. On that hypothesis,                                  (1999/C 314/28)
the applicants submit that it would be appropriate for the
Court to annul their January payslips in so far as these contain
no element relating to the application of the mechanism, and                              (Language of the case: French)
to order the Bank to reinstate the mechanism and to continue
to apply it.                                                            An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 30 August 1999 by Cristiano
If, however, the Court takes the view that such a decision was          Sebastiani, residing in Brussels, represented by Jean-Noël
actually taken, the applicants state that it is unlawful and            Louis, Greta-Françoise Parmentier and Véronique Peere, of the
should be annulled on the following grounds:                            Brussels Bar, with an address for service in Luxembourg at
                                                                        Fiduciaire Myson SARL, 30 Rue de Cessange.
1. The decision was adopted without proper consultation of              The applicant claims that the Court should:
     the official Staff Representatives as required by Article 24
     of the Staff Regulations.                                          — annul the Commission’s decision not to promote him
                                                                            to Grade A 6 in the context of the 1998 promotions
                                                                            operation;
2. The decision is based on an error of law such to alter its
     essential character and hence:
                                                                        — order the Commission to pay the costs.
     — the decision taken was ultra vires the Management
         Committee;                                                     Pleas in law and main arguments
                                                                        The applicant challenges the appointing authority’s refusal to
     — the Management Committee failed to give due con-                 promote him during the 1998 promotions operation.
         sideration to all the matters relevant to a decision of
         the kind in question; and
                                                                        In support of his claim, the applicant pleads:
     — the procedure followed by the Management Committee               — infringement of Articles 26, 43 and 45 of the Staff
         was unlawful.                                                      Regulations,
                                                                        — infringement of the rights of defence,
3. The decision violates a right enjoyed by members of the
     staff under their contracts of employment with the Bank,           — breach of the principles of equality of treatment, good
     such rights having either                                              administration and entitlement to reasonable career pros-
                                                                            pects, and
     — been incorporated by mutual consent into individual              — breach of the obligation to state reasons.
         contracts of employment; or
                                                                        The applicant states that his personal file did not, on the date
     — arisen through the operation of the principle of                 of comparative assessment of the merits of the candidates for
         acquired contractual rights which is known, in some            promotion to Grade A 6 in the context of the promotions
         form, to the employment law of most of the Member              operation in question, contain any report on the work he had
         States and which applies to the contracts of employ-           done as an administrator.
         ment of Bank staff by virtue of Article 44 of the Staff
         Regulations.                                                   Furthermore, the note from the Assistant Director-General of
                                                                        DG XII which stated that the applicant had been replaced
                                                                        as official correspondent for the Advisory Committee on
4. The decision violates the legitimate expectations of the             Procurement and Contracts for DG XII with effect from
     staff which were aroused by a course of conduct of the             1 September 1996, was not drawn up as soon as the relevant
     Bank’s Administration amounting to a clear assurance that          decision was adopted, nor was a copy of the note sent to the
     the mechanism would continue to be applicable after                applicant, nor was it included in his personal file. The members
     1 January 1999.                                                    of the Promotions Committee would not, therefore, have been
                                                                        aware of an essential piece of information concerning the
                                                                        applicant’s administrative status.


title: Case F-108/14: Action brought on 10 October 2014  — ZZ v Commission

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/46

         Action brought on 10 October 2014 — ZZ v Commission
   (Case F-108/14)
   (2015/C 026/60)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Orlandi, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision to credit the applicant’s pension rights in the context of the transfer of those rights to the European Union pension scheme pursuant to the new general implementing provisions relating to Articles 11 and 12 of Annex VIII to the Staff Regulations.

      Form of order sought

               —

               declare that Article 9 of the general implementing provisions relating to Article 11(2) of Annex VIII to the Staff Regulations is unlawful;

               —

               set aside the decision of 16 January 2014 to credit the pension rights acquired by the applicant prior to his entry into service, in the context of the transfer of those pension rights to the pension scheme of the institutions of the European Union pursuant to the general implementing provisions adopted on 3 March 2011 in relation to Article 11(2) of Annex VIII to the Staff Regulations;

               —

               order the European Commission to pay the costs.


title: Case F-87/11: Action brought on 13 September 2011 — ZZ v FRONTEX

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/45

         Action brought on 13 September 2011 — ZZ v FRONTEX
   (Case F-87/11)
   2011/C 347/83
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: S. A. Pappas, lawyer)

      Defendant: European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX)

      Subject-matter and description of the proceedings

   The annulment of the decision not to renew the temporary agent contract of the applicant.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Annul the decision of 16 December 2010 of the Executive Director of FRONTEX;

               —

               order the Agency to pay the costs.


title: Case F-96/05: Order of the Civil Service Tribunal of  21 March 2006  — Marenco v Commission

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/35

         Order of the Civil Service Tribunal of 21 March 2006 — Marenco v Commission
   (Case F-96/05) (1)

   (2006/C 108/65)

      Language of the case: French

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

      (1)  OJ C 10 of 14.1.2006.


title: Judgment of the Court (Fifth Chamber) of 21 September 1999 in Case C-397/96 (reference for a preliminary ruling from the Landgericht Trier): Caisse de Pension des Employés Privés v Dieter Kordel, Rainer Kordel, Frankfurter Allianz Versicherungs AG (Social security - Institution responsible for benefits - Right of action against liable third party - Subrogation)

text:
18.12.1999              EN                        Official Journal of the European Communities                                               C 366/7
1. Declares that, by not adopting, for the classes of projects covered       Court (Fifth Chamber), composed of: J.-P. Puissochet, President
    by points 1(d) and 2(a) of Annex II to Council Directive                 of the Chamber, P. Jann, D.A.O. Edward (Rapporteur), L. Sevón
    85/337/EEC of 27 June 1985 on the assessment of the effects              and M. Wathelet, Judges; A. Saggio, Advocate General; H. von
    of certain public and private projects on the environment, the           Holstein, Deputy Registrar, has given a judgment on 21 Sep-
    measures necessary to transpose Article 4(2) of that directive           tember 1999, in which it has ruled:
    correctly, and by not transposing Articles 2(3), 5 and 7 thereof,
    Ireland has failed to fulfil its obligations under that directive;
                                                                             1. On a proper construction of Article 93(1)(a) of Council Regu-
2. Dismisses the remainder of the application;                                   lation (EEC) No 1408/71 of 14 June 1971 on the application
                                                                                of social security schemes to employed persons, to self-employed
3. Orders Ireland to pay the costs.                                              persons and to members of their families moving within the
                                                                                Community, as amended and updated by Council Regulation
                                                                                (EEC) No 2001/83 of 2 June 1983, where an injury has been
                                                                                sustained in the territory of a Member State and has given rise
(1) OJ No C 40 of 8.2.1997.                                                      to the payment of social security benefits to the victim or those
                                                                                entitled under him by a social security institution (within the
                                                                                meaning of that regulation) of another Member State, the rights
                                                                                of the victim, or those entitled under him, against the person who
                                                                                caused the injury and to which that institution may be subrogated,
                                                                                and the requirements which must be satisfied to enable an action
                                                                                in damages to be brought before the courts of the Member State
                                                                                where the injury was sustained, are to be determined in accordance
                                                                                with the law of that State, including any applicable rules of
                                                                                private international law.
                 JUDGMENT OF THE COURT
                          (Fifth Chamber)                                    2. On a proper construction of Article 93(1)(a) of Regulation
                                                                                No 1408/71, as amended and updated by Regulation
                                                                                No 2001/83, the subrogation of a social security institution
                      of 21 September 1999                                       (within the meaning of that regulation) governed by the law of a
                                                                                Member State to the rights of the victim, or those entitled under
in Case C-397/96 (reference for a preliminary ruling from                        him, against a person who, in the territory of another Member
the Landgericht Trier): Caisse de Pension des Employés                           State, caused an injury which gave rise to the payment by that
Privés v Dieter Kordel, Rainer Kordel, Frankfurter Allianz                       institution of social security benefits, and the extent of the rights
                       Versicherungs AG (1)                                      to which that institution is subrogated, are to be determined in
                                                                                accordance with the law of the Member State to which the
                                                                                institution belongs, provided always that the exercise of the right
(Social security — Institution responsible for benefits —                        to subrogation provided for by that law cannot exceed the rights,
  Right of action against liable third party — Subrogation)                      under the law of the Member State where the injury was
                                                                                sustained, of the victim, or those entitled under him, against the
                                                                                person responsible for causing the injury.
                          (1999/C 366/11)
                   (Language of the case: German)                            3. It is for the court hearing an action to identify and apply the
                                                                                relevant provisions of the legislation of the Member State to
                                                                                which the institution responsible for benefits belongs, even if
                                                                                those provisions exclude or limit the subrogation of such an
(Provisional translation; the definitive translation will be published           institution to the rights of the recipient of the benefits against the
                   in the European Court Reports)                                person who caused the injury, or exclude or limit the exercise of
                                                                                those rights by the institution so subrogated.
In Case C-397/96: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Landgericht Trier
(Regional Court, Trier), Germany, for a preliminary ruling in
the proceedings pending before that court between Caisse de
Pension des Employés Privés and Dieter Kordel, Rainer Kordel,                (1) OJ No C 40 of 8.2.1997.
Frankfurter Allianz Versicherungs AG — on the interpretation
of Article 93 (1) (a) of Council Regulation (EEC) No 1408/71
of 14 June 1971 on the application of social security schemes
to employed persons, to self-employed persons and to mem-
bers of their families moving within the Community, as
amended and updated by Council Regulation (EEC)
No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) — the


title: Case C-309/06: Reference for a preliminary ruling from House of Lords (United Kingdom) made on 17 July 2006 — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/10

         Reference for a preliminary ruling from House of Lords (United Kingdom) made on 17 July 2006 — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise
   (Case C-309/06)
   (2006/C 261/18)
   Language of the case: English
   Referring court
   House of Lords
   Parties to the main proceedings

      Applicant: Marks & Spencer plc

      Defendant: Her Majesty's Commissioners of Customs and Excise
   Questions referred

               1.

               Where, under Article 28(2)(a) of the Sixth VAT Directive (1) (both before and after its amendment in 1992 by Directive 92/77), a Member State has maintained in its domestic VAT legislation an exemption with refund of input tax in respect of certain specified supplies, does a trader making such supplies have a directly enforceable Community law right to be taxed at a zero rate?

               2.

               If the answer to Question 1 is in the negative, where, under Article 28(2)(a) of the Sixth VAT Directive (both before and after its amendment in 1992 by Directive 92/77), a Member State has maintained in its domestic VAT legislation an exemption with refund of input tax in respect of certain specified supplies but has mistakenly interpreted its domestic legislation with the consequence that certain supplies benefiting from exemption with refund of input tax under its domestic legislation have been subject to tax at the standard rate, do the general principles of Community law, including fiscal neutrality, apply so as to give a trader who made such supplies a right to recover the sums mistakenly charged in respect of them?

               3.

               If the answer to Question 1 or Question 2 is in the affirmative, do the Community law principles of equal treatment and fiscal neutrality in principle apply with the result that they would be infringed if the trader in question is not repaid the entire amount mistakenly charged on the supplies made by him in circumstances where:

                           a)

                           the trader would be unjustly enriched by repayment to him of the entire amount;

                           b)

                           domestic legislation provides that overpaid tax cannot be repaid to the extent that repayment would lead to unjust enrichment of the trader; but

                           c)

                           domestic legislation makes no provision similar to that referred to in (ii) in the case of claims by ‘repayment traders’? (A ‘repayment trader’ is a taxable person who, in a given prescribed accounting period, makes no payment of VAT to the competent national authorities but receives a payment from them because, in that period, the amount of VAT that he is entitled to deduct exceeds the amount of VAT due in respect of supplies made by him.)

               4

               Is the answer to Question 3 affected by whether or not there is evidence that the difference of treatment between traders making claims for the repayment of overpaid output tax and traders making claims for additional amounts by way of input tax deduction (resulting from the over declaration of output tax) has, or has not, caused any financial loss or disadvantage to the former and, if so, how?

               5

               If, in the situation described in Question 3, the Community law principles of equal treatment and fiscal neutrality apply and would otherwise be infringed, does Community law require or permit a court to remedy the difference of treatment by upholding a trader's claim to a repayment of overpaid tax in such a way as to enrich him unjustly or require or permit a court to grant some other remedy (and, if so, which)?

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


title: Joined Cases T-339/10 and T-532/10: Judgment of the General Court of 29 January 2013 — Cosepuri v EFSA (Public service contracts — Tender procedure — Shuttle service in Italy and Europe — Tenderer’s bid rejected — Decision to award the contract to another tenderer — Non-contractual liability — Access to documents — Regulation (EC) No 1049/2001 — Bid of the successful tenderer — Access refused — Exception relating to the protection of the commercial interests of a third party)

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/15

         Judgment of the General Court of 29 January 2013 — Cosepuri v EFSA
   (Joined Cases T-339/10 and T-532/10) (1)

   (Public service contracts - Tender procedure - Shuttle service in Italy and Europe - Tenderer’s bid rejected - Decision to award the contract to another tenderer - Non-contractual liability - Access to documents - Regulation (EC) No 1049/2001 - Bid of the successful tenderer - Access refused - Exception relating to the protection of the commercial interests of a third party)
   2013/C 71/22
   Language of the case: Italian

      Parties

      Applicant: Cosepuri Soc. Coop. pA (Bologna, Italy) (represented by: F. Fiorenza, lawyer)

      Defendant: European Food Safety Authority (EFSA) (represented by: D. Detken and S. Gabbi, acting as Agents, and J. Stuyck and A.-M. Vandromme, lawyers)

      Re:

   Application for annulment relating to tender procedure CFT/EFSA/FIN/2010/01 for the award of a shuttle service contract in Italy and Europe (OJ 2010/S 51-074689), together with a claim for damages (Case T-339/10), and an application for annulment of EFSA’s decision of 15 September 2010 refusing to grant the applicant access to the bid of the successful tenderer in the tender procedure in question (Case T-532/10)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Cosepuri Soc. Coop. pA to pay the costs.

      (1)  OJ C 288, 23.10.2010.


title: Case C-420/07: Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 13 September 2007 — Meletis Apostolides v David Charles Orams, Linda Elizabeth Orams

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/20

         Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 13 September 2007 — Meletis Apostolides v David Charles Orams, Linda Elizabeth Orams
   (Case C-420/07)
   (2007/C 297/34)
   Language of the case: English
   Referring court
   Court of Appeal (Civil Division) (England and Wales)
   Parties to the main proceedings

      Applicant: Meletis Apostolides

      Defendants: David Charles Orams, Linda Elizabeth Orams
   Questions referred

               1.

               In this question,

                           —

                           the term ‘the Government-controlled area’ refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus exercises effective control; and

                           —

                           the term ‘the northern area’ refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus does not exercise effective control.

                     Does the suspension of the application of the acquis communautaire in the northern area by Article 1(1) of Protocol No 10 of the Act of Accession 2003 of Cyprus to the EU preclude a Member State Court from recognising and enforcing a judgment given by a Court of the Republic of Cyprus sitting in the Government-controlled area relating to land in the northern area, when such recognition and enforcement is sought under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) (‘Regulation 44/2001’), which is part of the acquis communautaire?

               2.

               Does Article 35(1) of Regulation 44/2001 entitle or bind a Member State court to refuse recognition and enforcement of a judgment given by the Courts of another Member State concerning land in an area of the latter Member State over which the Government of that Member State does not exercise effective control? In particular, does such a judgment conflict with Article 22 of Regulation 44/2001?

               3.

               Can a judgment of a Member State court, sitting in an area of that State over which the Government of that State does exercise effective control, in respect of land in that State in an area over which the Government of that State does not exercise effective control, be denied recognition or enforcement under Article 34(1) of Regulation 44/2001 on the grounds that as a practical matter the judgment cannot be enforced where the land is situated, although the judgment is enforceable in the Government-controlled area of the Member State?

               4.

               Where

                           —

                           a default judgment has been entered against a defendant;

                           —

                           the defendant then commenced proceedings in the Court of origin to challenge the default judgment; but

                           —

                           his application was unsuccessful following a full and fair hearing on the ground that he had failed to show any arguable defence (which is necessary under national law before such a judgment can be set aside),

                     can that defendant resist enforcement of the original default judgment or the judgment on the application to set aside under Article 34(2) of Regulation 44/2001, on the ground that he was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence prior to the entry of the original default judgment? Does it make a difference if the hearing entailed only consideration of the defendant's defence to the claim.

               5.

               In applying the test in Article 34(2) of Regulation 44/2001 of whether the defendant was ‘served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence’ what factors are relevant to the assessment? In particular:

                           (a)

                           Where service in fact brought the document to the attention of the defendant, is it relevant to consider the actions (or inactions) of the defendant or his lawyers after service took place?

                           (b)

                           What if any relevance would particular conduct of, or difficulties experienced by, the defendant or his lawyers have?

                           (c)

                           Is it relevant that the defendant's lawyer could have entered an appearance before judgment in default was entered?

      (1)  OJ L 12, p. 1.


title: Case T-156/16: Action brought on 7 April 2016 — CFA Institute v EUIPO — Ernst and Häcker (CERTIFIED FINANCIAL MODELER CFM)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/60

      Action brought on 7 April 2016 — CFA Institute v EUIPO — Ernst and Häcker (CERTIFIED FINANCIAL MODELER CFM)
      (Case T-156/16)
      (2016/C 211/74)
      Language in which the application was lodged: English

         Parties

         Applicant: CFA Institute (Charlottesville, Virginia, United States) (represented by: S. Rohlfing and G. Engels, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other parties to the proceedings before the Board of Appeal: Dietmar Ernst (Nürtingen, Germany), Joachim Häcker (Nürtingen)

         Details of the proceedings before EUIPO

         Applicants of the trade mark at issue: Other parties to the proceedings before the Board of Appeal

         Trade mark at issue: EU figurative mark containing the word element ‘CERTIFIED FINANCIAL MODELER CFM’ — Application for registration No 9 569 658

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 26 January 2016 in Case R 9/2015-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  uphold the opposition filed by the plaintiff against the trademark application No 9 569 658 by the participants;

                  —

                  order EUIPO to pay the costs or;

                  —

                  in case the participants will join the proceedings as interveners, to order the participants to pay the costs incurred by the plaintiff both in the appeal proceedings before the EUIPO and in the proceedings before the General Court.

         Pleas in law

                  —

                  Infringement of Article 8(1)(b) of Regulation No 207/2009;

                  —

                  Infringement of Article 8(5) of Regulation No 207/2009.


title: Case C-266/17: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 17 May 2017 — Rhein-Sieg-Kreis v Verkehrsbetrieb Hüttebräucker GmbH, BVR Busverkehr Rheinland GmbH

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/18

         Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 17 May 2017 — Rhein-Sieg-Kreis v Verkehrsbetrieb Hüttebräucker GmbH, BVR Busverkehr Rheinland GmbH
   (Case C-266/17)
   (2017/C 283/25)
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Appellant: Rhein-Sieg-Kreis

      Respondents: Verkehrsbetrieb Hüttebräucker GmbH, BVR Busverkehr Rheinland GmbH

      Questions referred

               1.

               Does Article 5(2) of Regulation (EC) No 1370/2007 (1) apply to contracts which are not contracts which, within the meaning of the first sentence of Article 5(1) of Regulation (EC) No 1370/2007, take the form of service concession contracts as defined in Directives 2004/17/EC (2) or 2004/18/EC? (3)

               If Question 1 is answered in the affirmative:

               2.

               Where an individual competent authority awards a public service contract directly to an internal operator in accordance with Article 5(2) of Regulation (EC) No 1370/2007, is the joint exercise of control by that authority together with the other shareholders of the internal operator precluded if the power to intervene in public passenger transport in a given geographical area (Article 2(b) and (c) of Regulation (EC) No 1370/2007) is divided between the individual competent authority and a group of authorities which provides integrated public passenger transport services, for example where the power to award public service contracts to an internal operator remains with the individual competent authority but the responsibility for tariffs is transferred to a special purpose transport association to which, in addition to the individual authority, further authorities competent in their geographical areas belong?

               3.

               Where an individual competent authority awards a public service contract directly to an internal operator in accordance with Article 5(2) of Regulation (EC) No 1370/2007, is the joint exercise of control by that authority together with the other shareholders of the internal operator precluded if, according to that operator’s articles of association, in the case of resolutions concerning the conclusion, amendment or termination of a public service contract referred to in Article 5(2) of Regulation (EC) No 1370/2007, the only shareholder entitled to vote is the one which itself or whose indirect or direct owner awards a public service contract to the internal operator in accordance with Article 5(2) of Regulation (EC) No 1370/2007?

               4.

               Does Article 5(2)(b) of Regulation (EC) No 1370/2007 permit the internal operator also to perform public passenger transport services for other competent local authorities within their territory (including through routes or other part services which enter the territory of neighbouring competent local authorities) if these are not awarded through organised competitive tender procedures?

               5.

               Does Article 5(2)(b) of Regulation (EC) No 1370/2007 permit the internal operator also to perform public passenger transport activity outside the territory of the commissioning authority for other authorities on the basis of public service contracts covered by the transitional provisions of Article 8(3) of Regulation (EC) No 1370/2007?

               6.

               On which date must the requirements of Article 5(2) of Regulation (EC) No 1370/2007 be satisfied?

      (1)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70, OJ 2007 L 315, p. 1.

      (2)  Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ 2004 L 134, p. 1.

      (3)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 2004 L 134, p. 114.


title: Case C-27/16: Request for a preliminary ruling from the Аdministrativen sad — Sofia-grad (Bulgaria) lodged on 18 January 2016 — Angel Marinkov v Predsedatel na Darzhavna agentsia za balgarite v chuzhbina

text:
               29.3.2016

               EN

               Official Journal of the European Union

               C 111/12

         Request for a preliminary ruling from the Аdministrativen sad — Sofia-grad (Bulgaria) lodged on 18 January 2016 — Angel Marinkov v Predsedatel na Darzhavna agentsia za balgarite v chuzhbina
   (Case C-27/16)
   (2016/C 111/15)
   Language of the case: Bulgarian

      Referring court

   Аdministrativen sad — Sofia-grad

      Parties to the main proceedings

      Applicant: Angel Marinkov

      Defendant: Predsedatel na Darzhavna agentsia za balgarite v chuzhbina

      Questions referred

               1.

               Must Article [14](1)(c) of Directive 2006/54/ЕC (1) of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) and Article 3(1)(c) of Council Directive 2000/78/EC (2) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation be interpreted as being sufficiently precise and clear and, accordingly, applicable to the legal position of a dismissed public-sector worker, employed under a civil-service employment relationship, in the case where:

                           (a)

                           the dismissal took place because of a reduction in a number of identical posts (functions) occupied by the dismissed person and by other civil servants, including both men and women;

                           (b)

                           the dismissal was based on a neutral provision of national law;

                           (c)

                           under the circumstances of the dismissal in question, national legislation does not lay down any criteria and obligations for assessment in relation to every individual who might be affected by dismissal, nor does it lay down obligations to give reasons for the dismissal of a specific individual?

               2.

               Must Article [14](1)(c) of Directive 2006/54/ЕC and Article 3(1)(c) of Directive 2000/78/EC, in conjunction with Articles 30, 47 and 52(1) of the Charter of Fundamental Rights, be interpreted as permitting, pursuant to Article 157(3) of the Treaty on the Functioning of the European Union, a national measure such as Article 21 of the Law on protection against discrimination (Zakon za zashtita ot diskriminatsia), read in conjunction with Article 106(1)(2) of the Civil Service Law (Zakon za darzhavnia sluzhitel), the provisions of which — in the circumstances described in the first question concerning the dismissal of a person employed in the public sector under a civil-service employment relationship (owing to abolition of a post on account of a reduction in a number of identical posts occupied by both men and women) — do not expressly lay down, as part of the right to dismiss staff, any selection obligations or criteria, which both administrative and legal practice permit only if the authority responsible for the dismissal made a discretionary decision to specify a procedure and criteria, in contrast to identical circumstances involving the dismissal of a public-sector worker employed under an employment-law relationship, for which selection obligations and criteria in respect of the dismissal are laid down by law as part of that authority’s right to dismiss staff?

               3.

               Must Article [14](1)(c) of Directive 2006/54/EC and Article 3(1)(c) of Directive 2000/78/EC, in conjunction with Articles 30, 47 and 52(1) of the Charter of Fundamental Rights, be interpreted as meaning that the dismissal of a person employed in the public sector under a civil-service employment relationship will be unjustified, and accordingly contrary to those provisions, only because the administrative authority did not carry out a selection and apply objective criteria, or give reasons for its choice to dismiss a particular person, where that person occupied a post identical to that occupied by other persons, both men and women, and the dismissal took place on the basis of a neutral provision?

               4.

               Must Articles 18 and 25 of Directive 2006/54/EC, read in conjunction with Article 30 of the Charter of Fundamental Rights, be interpreted as meaning that the requirement of proportionality has been met and that those provisions allow for relevant national legislation which provides for compensation in the case of unlawful dismissal, applicable also in the event of infringement of the principle of equal treatment in matters of employment and occupation under EU law, specifying a maximum compensation period of six months and a fixed payment — based on the basic salary for the post occupied, but only in so far as the person remains unemployed or receives lower pay, where the right of that person to be reinstated in the post is separate and not part of his right to compensation under the national law of the Member State?

      (1)  OJ 2006 L 204, p. 23.

      (2)  OJ 2000 L 303, p. 16.


title: Case T-363/13: Judgment of the General Court of 13 May 2015 — Harper Hygienics v OHIM — Clinique Laboratories (CLEANIC intimate) (Community trade mark — Opposition proceedings — Application for the Community figurative mark CLEANIC intimate — Earlier Community word marks CLINIQUE — Relative grounds for refusal — Likelihood of confusion — Similarity of the goods and services — Article 8(1)(b) of Regulation (EC) No 207/2009 — Unfair advantage taken of the distinctive character or the repute of the earlier marks — Article 8(5) of Regulation No 207/2009)

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/30

         Judgment of the General Court of 13 May 2015 — Harper Hygienics v OHIM — Clinique Laboratories (CLEANIC intimate)
   (Case T-363/13) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark CLEANIC intimate - Earlier Community word marks CLINIQUE - Relative grounds for refusal - Likelihood of confusion - Similarity of the goods and services - Article 8(1)(b) of Regulation (EC) No 207/2009 - Unfair advantage taken of the distinctive character or the repute of the earlier marks - Article 8(5) of Regulation No 207/2009))
   (2015/C 213/52)
   Language of the case: Polish

      Parties

      Applicant: Harper Hygienics S.A. (Warsaw, Poland) (represented by: initially R. Rumpel, and subsequently D. Rzążewska and G. Pietras, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Clinique Laboratories, LLC (Wilmington, Delaware, United States) (represented by: initially V. von Bomhard, lawyer, and K. Hughes, Solicitor, and subsequently K. Hughes)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 29 April 2013 (Case R 606/2012-5), relating to opposition proceedings between Clinique Laboratories, LLC and Harper Hygienics S.A.

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Harper Hygienics S.A. to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Clinique Laboratories, LLC.

      (1)  OJ C 274, 21.9.2013.


               7.8.2004

               EN

               Official Journal of the European Union

               C 201/15

         Removal from the register of Case C-382/03 (1)

   (2004/C 201/33)
   By order of 11 May 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-382/03 (reference for a preliminary ruling from the Supreme Court, Dublin): Ryanair Ltd v Aer Rianta cpt.

      (1)  OJ C 275, 15.11.2003.


title: Case C-203/12: Judgment of the Court (Second Chamber) of 17 October 2013 (request for a preliminary ruling from the Högsta domstolen — Sweden) — Billerud Karlsborg AB, Billerud Skärblacka AB v Naturvårdsverket (Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Penalty for excess emissions — Concept of excess emission — Equated with infringement of the obligation to surrender, within the time periods prescribed by the directive, a sufficient number of allowances to cover the emissions from the previous year — No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure — No possibility of varying the amount of the penalty — Proportionality)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/12

         Judgment of the Court (Second Chamber) of 17 October 2013 (request for a preliminary ruling from the Högsta domstolen — Sweden) — Billerud Karlsborg AB, Billerud Skärblacka AB v Naturvårdsverket
   (Case C-203/12) (1)

   (Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - Penalty for excess emissions - Concept of excess emission - Equated with infringement of the obligation to surrender, within the time periods prescribed by the directive, a sufficient number of allowances to cover the emissions from the previous year - No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure - No possibility of varying the amount of the penalty - Proportionality)
   2013/C 367/20
   Language of the case: Swedish

      Referring court

   Högsta domstolen

      Parties to the main proceedings

      Applicants: Billerud Karlsborg AB, Billerud Skärblacka AB

      Defendant: Naturvårdsverket

      Re:

   Request for a preliminary ruling — Högsta domstolen — Interpretation of Article 16(3) and (4) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32) — Penalties provided for by the directive — Obligation for an operator who has not surrendered sufficient allowances by 30 April of each year to cover its emissions to pay a penalty, even where the non-surrender is due to negligence, administrative error or a technical problem — Possibility or non-possibility of varying the penalty or reducing the amount

      Operative part of the judgment

               1.

               Article 16(3) and (4) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC must be interpreted as precluding operators who have not surrendered, by 30 April of the current year, the carbon dioxide equivalent allowances equal to their emissions for the preceding year, from avoiding the imposition of a penalty for the excess emissions for which it provides, even where they hold a sufficient number of allowances on that date;

               2.

               Article 16(3) and (4) of Directive 2003/87 must be interpreted as meaning that the amount of the lump sum penalty provided for therein may not be varied by a national court on the basis of the principle of proportionality.

      (1)  OJ C 184, 23.6.2012.


title: Case T-18/13: Judgment of the General Court of 15 July 2014  — Laskiewicz v OHIM — Cables y Eslingas (PROTEKT) (Community trade mark — Opposition proceedings — Application for Community figurative mark PROTEKT — Earlier Spanish word marks PROTEK — Relative ground of refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 73 of Regulation No 207/2009)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/39

         Judgment of the General Court of 15 July 2014 — Laskiewicz v OHIM — Cables y Eslingas (PROTEKT)
   (Case T-18/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark PROTEKT - Earlier Spanish word marks PROTEK - Relative ground of refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Article 73 of Regulation No 207/2009))
   2014/C 292/48
   Language of the case: Polish

      Parties

      Applicant: Grzegorz Laskiewicz (Łódź) (represented by: J. Gwiazdowska, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Cables y Eslingas SA (Cerdanyola del Valles, Spain)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 October 2012 (Case R 701/2011-4) relating to opposition proceedings between Cables y Eslingas SA and Mr Grzegorz Laskiewicz.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Grzegorz Laskiewicz to pay the costs.

      (1)  OJ C 108, 13 April 2013.


title: Case C-347/10: Judgment of the Court (Grand Chamber) of 17 January 2012 (reference for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — A. Salemink v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Social security for migrant workers — Regulation (EEC) No 1408/71 — Worker employed on gas-drilling platform on the continental shelf adjacent to the Netherlands — Compulsory insurance — Refusal to pay invalidity benefit)

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/3

         Judgment of the Court (Grand Chamber) of 17 January 2012 (reference for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — A. Salemink v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen
   (Case C-347/10) (1)

   (Social security for migrant workers - Regulation (EEC) No 1408/71 - Worker employed on gas-drilling platform on the continental shelf adjacent to the Netherlands - Compulsory insurance - Refusal to pay invalidity benefit)
   2012/C 73/04
   Language of the case: Dutch

      Referring court

   Rechtbank Amsterdam

      Parties to the main proceedings

      Applicant: A. Salemink

      Defendant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

      Re:

   Reference for a preliminary ruling — Rechtbank Amsterdam — Interpretation of Articles 45 TFEU and 355 TFEU, Article 52 TEU and Titles I and II of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) — National compulsory sickness insurance scheme not applicable to persons who are working on a drilling platform situated on the Netherlands section of the continental shelf for an employer established in the Netherlands and who are resident in the territory of another Member State

      Operative part of the judgment

   Article 13(2)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, and Article 39 EC must be interpreted as precluding an employee, working on a fixed installation on the continental shelf adjacent to a Member State, from being in a position in which he is not compulsorily insured under national statutory employee insurance in that Member State solely on the ground that he is not resident there but in another Member State.

      (1)  OJ C 246, 11.9.2010.


title: JUDGMENT OF THE COURT of 17 September 1997 in Case C-54/96 (reference for a preliminary ruling from the Vergabeüberwachungsausschuß des Bundes): Dorsch Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft Berlin mbH (Meaning of 'national court or tribunal' for the purposes of Article 177 of the Treaty - Procedures for the award of public service contracts - Directive 92/50/EEC - National review body)

text:
1 . 11 . 97                EN                   Official Journal of the European Communities                                        C 331 /7
3 . A tax levied only on certain products, which is not                    that, where that directive has not been transposed by the
      proportional to the price of those products, is not                  end of the period laid down for that purpose, the appeal
       charged at each stage of the production and                         bodies of the Member States having competence in
       distribution process and is not imposed on the added                relation to procedures for the award of public works
       value of the products, is not in the nature of a                    contracts and public supply contracts may also hear
       turnover tax within the meaning of Article 33 of the                appeals relating to procedures for the award of public
      Sixth Council Directive (77/388IEEC) of 17 May 1977                  service contracts. However, in order to observe the
       on the harmonization of the laws of the Member                      requirement that domestic law must be interpreted in
       States relating to turnover taxes — Common system of                conformity with Directive 921SO and the requirement that
       value added tax: uniform basis of assessment.                       the rights of individuals must be protected effectively, the
                                                                           national court must determine whether the relevant
0 ) OJ C 77, 16 . 3 . 1996 .
                                                                           provisions of its domestic law allow recognition of a right
( 2 ) OJ L 145 , 13 . 6 . 1977, p . 1 .                                    for individuals to bring an appeal in relation to awards of
                                                                           public service contracts. In circumstances such as those
                                                                           arising in the present case, the national court must
                                                                           determine in particular whether such a right of appeal
                                                                           may be exercised before the same bodies as those
                                                                           established to hear appeals concerning the award of public
                                                                           supply contracts and public works contracts.
                 JUDGMENT OF THE COURT
                                                                           H OJ C 108 , 13 . 4. 1996 .
                          of 17 September 1997                             ( 2 ) OJ L 209, 24 . 7. 1992, p. 1 .
in Case C-54/96 (reference for a preliminary ruling from
the Vergabeüberwachungsausschuß des Bundes ): Dorsch
Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft
                              Berlin mbH ( J )
(Meaning of 'national court or tribunal' for the purposes
of Article 1 77 of the Treaty — Procedures for the award                                   JUDGMENT OF THE COURT
of public service contracts — Directive 92/50/EEC —
                          National review body)                                                       ( First Chamber)
                              ( 97/C 331/11 )                                                      of 17 September 1997
                                                                           in Case C-83/96, (reference for a preliminary ruling from
                                                                           the Corte Suprema di Cassazione ): Provincia Autonoma di
                  (Language of the case: German)                           Trento and Ufficio del Medico Provindiale di Trento v.
                                                                                Dega di Depretto Gino Snc (')
   (Provisional translation; the definitive translation will be            (Consumer protection — Labelling of foodstuffs —
                                                                                Council Directive 79/112/EEC)
            published in the European Court Reports)
                                                                                ( 97/C 331/12 )
In Case C-54/96 : reference to the Court under Article 177
of the EC Treaty from the Vergabeiiberwachungsausschufi                                      (Language of the case: Italian)
des      Bundes       ( Federal      Public  Procurement     Awards
Supervisory Board ) ( Germany), for a preliminary ruling
in the proceedings pending before that body between                            (Provisional translation; the definitive translation will be
Dorsch         Consult        Ingenieurgesellschaft     mbH      and                   published in the European Court Reports)
Bundesbaugesellschaft Berlin mbH — on the interpretation
of Article 41 of Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the                    In Case C-83/96 : reference to the Court under Article 177
award of public service contracts (2 ) — the Court,                        of the EC Treaty by the Corte Suprema di Cassazione
composed of: G. C. Rodriguez Iglesias, President, G. F.                    ( Italy ) for a preliminary ruling in the proceedings pending
Mancini, J. C. Moitinho de Almeida, J. L. Murray and L.                    before that court between, on the one hand, Provincia
Sevon (Presidents of Chambers), C. N. Kakouris, P. J. G.                   Autonoma di Trento and Ufficio del Medico Provinciale di
Kapteyn, C. Gulmann, D. A. O. Edward, J. -P. Puissochet,                   Trento and, on the other, Dega di Depretto Gino Snc, on
G. Hirsch, P. Jann ( Rapporteur), H. Ragnemalm, M.                         the interpretation of Article 3 ( 1 ) ( 6 ) of Council Directive
Wathelet and R. Schintgen, Judges; G. Tesauro, Advocate                    79/112/EEC of 18 December 1978 on the approximation
General; H. A. Riihl, Principal Administrator, for the                     of the laws of the Member States relating to the labelling,
Registrar, has given a judgment on 17 September 1997, in                   presentation and advertising of foodstuffs for sale to the
which it has ruled :                                                       ultimate consumer ( 2 ), — the Court ( First Chamber)
                                                                           composed of: L. Sevon, President of the Chamber, P. Jann
                                                                           and M. Wathelet ( Rapporteur ), Judges; P. Leger, Advocate
It does not follow from Article 41 of Council Directive                    General; L. Hewlett, Administrator, for the Registrar, has
92/50/EEC of 18 June 1992 relating to the coordination                     given a judgment on 17 September 1997, in which it has
of procedures for the award of public service contracts                    ruled :


title: Case C-25/12 P: Appeal on 17 January 2012 by Gino Trevisanato against the Order of the General Court (Seventh Chamber) of 13 December 2011 in Case T-510/11 Gino Trevisanato v European Commission

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/10

         Appeal on 17 January 2012 by Gino Trevisanato against the Order of the General Court (Seventh Chamber) of 13 December 2011 in Case T-510/11 Gino Trevisanato v European Commission
   (Case C-25/12 P)
   2012/C 65/20
   Language of the case: Italian

      Parties

      Applicant: Gino Trevisanato (represented by L. Sulfaro, lawyer)

      Other party to the proceedings: European Commission

      Forms of order sought

               —

               Annul the order of the Seventh Chamber of the General Court of 13 December 2011 in Case T-510/11, declaring the admissibility and the jurisdiction of the General Court to rule on the applications in the action for failure to take action, brought by the applicant on 29 September 2011 against the European Commission, pursuant to the third paragraph of Article 265 TFEU;

               —

               Consequently, rule on the merits of the action with costs awarded to the successful party, or, in the alternative, refer the matter back to the General Court.

      Pleas in law and main arguments

   The applicant makes three pleas in law in support of his appeal.
   The applicant maintains that the order is vitiated by factual error through misinterpretation of the applicant’s claim. He had not asked the Court to find an unlawful refusal by the Commission to take a position, by means of a reasoned opinion within the meaning of Article 258 TFEU, on the inadequate transposition into the Italian legal order of Directive 98/59/EC (1) on collective redundancies, as the order presupposes. He had, on the contrary, requested the Court to hold that the Commission had unlawfully failed to act by not notifying to the applicant the legally binding position on the request which, 4 years after the complaint, was raised again with the request of 11 July 2011 with regard to the right or otherwise of employees in Italy to enjoy the protection of Directive 98/59/EC on collective redundancies, that right having been denied by the Italian courts to the applicant, who had been the victim of a redundancy of that type, carried out by IBM in Italy.
   The General Court then erred by declaring that it had no jurisdiction, on the basis of the Order of the Court of Justice of 26 October 1995 in Joined Cases C-199/94 P and C-200/94 P Pevasa and Inpesca. That case-law was not relevant in that case on account of the different factual background.
   Finally, the General Court infringed its Rules of Procedure and Article 47 of the Charter of Fundamental Rights, by omitting to notify the action to the opposing party, publish a summary in the Official Journal and refer the matter to the Advocate General.

      (1)  OJ 1998 L 225, p. 16.


title: Case T-476/16: Action brought on 25 August 2016 — Adama Agriculture and Adama France v Commission

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/48

         Action brought on 25 August 2016 — Adama Agriculture and Adama France v Commission
   (Case T-476/16)
   (2016/C 402/57)
   Language of the case: English

      Parties

      Applicants: Adama Agriculture BV (Amsterdam, Netherlands) and Adama France (Sèvres, France) (represented by: C. Mereu and M. Grunchard, lawyers)

      Defendants: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare the application admissible and well-founded;

               —

               annul the contested decision (1) and rule that (i) the approval of the active substance isoproturon (IPU) should be renewed or, in the alternative, (ii) remand the assessment of the renewal of the approval of IPU to the defendant and suspend any and all relevant deadlines under the PPPR and its implementing regulations so as to allow the operation of a proper timeframe for adopting a new decision on the renewal of IPU; and

               —

               order the defendant to pay all the costs and expenses of these proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants submit that the contested decision was adopted by the defendant in violation of the rights and principles guaranteed by the EU. They contend that the contested decision is unlawful because it infringes the Treaty on the Functioning of the EU (‘'TFEU’') and EU secondary legislation on the following five grounds:

               1.

               First plea in law, alleging manifest errors of appraisal: Pursuant to recitals 8, 9 and 10 of the contested decision, IPU was banned on the basis of its (i) risk resulting from exposure to a metabolite in groundwater, (ii) risk for birds, mammals and aquatic organisms and (iii) the proposed classification of IPU as a substance toxic for reproduction category 2. All concerns however on which the contested decision is based are procedurally and/or substantively flawed and fail to take into account information which was submitted by the applicants.

               2.

               Second plea in law, alleging infringement of CLP Regulation (EC) No 1272/2008 (2) procedure — ultra vires act: By proposing the classification of IPU as toxic for reproduction and by relying on that proposal for justifying the non-renewal of the approval of IPU, the defendant has infringed both the CLP Regulation and Regulation (EC) No 1107/2009 (3) concerning the placing of plant protection products on the market (‘'PPPR’'), and as such has acted ultra vires.

               3.

               Third plea in law, alleging infringement of the right of defence and the principle of sound administration: the behaviour of the RMS, EFSA and the Commission have individually and collectively violated the right to be heard and right of the defence of the applicants by depriving them of a fair hearing and due process. In particular, despite repeated and proactive attempts to contact the RMS and EFSA, the applicants did not receive timely feedback. Additionally, submissions made by the applicants have not been taken into account.

               4.

               Fourth plea in law, alleging infringement of the principle of non-discrimination and equal treatment: while the Commission has adopted a strict approach on IPU (based on manifest errors of assessment and procedures), it did not do so in similar situations/previous decisions related to substances with similar concerns, which amounts to an infringement of the principle of equal treatment and non-discrimination.

               5.

               Fifth plea in law, alleging infringement of the principle of proportionality: By not choosing less stricter measures which would have achieved the same objectives (e.g. approval subject to conditions to be assessed at Member State level or subject to submission of confirmatory data at the EU level in accordance with Article 6 of the PPPR), and instead by banning IPU, the Commission has infringed the principle of proportionality.

      (1)  Commission Implementing Regulation (EU) 2016/872 of 1 June 2016 concerning the non-renewal of approval of the active substance isoproturon, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending Commission Implementing Regulation (EU) No 540/2011 (OJ 2016, L 145, p. 7)

      (2)  Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008, L 353, p. 1)

      (3)  Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009, L 309, p. 1)


title: Case C-105/04 P: Judgment of the Court (First Chamber) of 21 September 2006 — Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Technische Unie BV, Commission of the European Communities, CEF City Electrical Factors BV, CEF Holdings Ltd (Appeal — Cartels — Market in electrotechnical fittings in the Netherlands — National wholesalers' association — Agreements and concerted practices having as their object a collective exclusive dealing arrangement and price-fixing — Fines)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/4

         Judgment of the Court (First Chamber) of 21 September 2006 — Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Technische Unie BV, Commission of the European Communities, CEF City Electrical Factors BV, CEF Holdings Ltd
   (Case C-105/04 P) (1)

   (Appeal - Cartels - Market in electrotechnical fittings in the Netherlands - National wholesalers' association - Agreements and concerted practices having as their object a collective exclusive dealing arrangement and price-fixing - Fines)
   (2006/C 294/07)
   Language of the case: Dutch
   Parties

      Appellant: Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (represented by: E. Pijnacker Hordijk and M. De Grave, lawyer)

      Other parties to the proceedings: Technische Unie BV(represented by: P. Bos and C. Hubert, lawyers), Commission of the European Communities (represented by: W. Wils, Agent and H. Gilliams, lawyer), CEF City Electrical Factors BV, CEF Holdings Ltd (represented by J. Stuyck, C. Vinken Geijselaers and M. Poelman, lawyers)
   Re:
   Appeal against the judgment of the Court of First Instance (First Chamber) of 16 December 2003 in Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission, by which the Court of First Instance dismissed the application seeking annulment of Commission Decision 2000/117/EC of 26 October 1999 concerning a proceeding pursuant to Article 81 of the EC Treaty (Case IV/33.884 — Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie) (OJ 2000 L 39, p. 1)
   Operative part of the judgment
   The Court:

               1)

               Sets aside the judgment of the Court of First Instance of the European Communities of 16 December 2003 in Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission solely in so far as the Court of First Instance, in examining the plea alleging breach of the 'reasonable time' principle, omitted to ascertain whether the excessive duration, imputable to the Commission of the European Communities, of the entire administrative procedure, including the phase preceding the notification of the statement of objections, was capable of affecting the future possibilities of the Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied to defend its interests;

               2)

               Dismisses the remainder of the application;

               3)

               Dismisses the action brought by the Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied before the Court of First Instance, in so far as it is based in part on the plea alleging breach of the ‘reasonable time’ principle;

               4)

               Orders the Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied to pay the costs of these proceedings. The costs relating to the proceedings at first instance which gave rise to the judgment of 16 December 2003 in Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission remain payable by the Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied, in accordance with the procedure laid down in paragraph 2 of the operative part of that judgment.

      (1)  OJ C 106, 30.04.04.


title: Case F-41/14: Judgment of the Civil Service Tribunal (First Chamber) of 26 March 2015 — CW v Parliament (Civil service — Officials — Staff report — Manifest errors of assessment — Misuse of powers — Psychological harassment — Decision to award one merit point)

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/43

         Judgment of the Civil Service Tribunal (First Chamber) of 26 March 2015 — CW v Parliament
   (Case F-41/14) (1)

   ((Civil service - Officials - Staff report - Manifest errors of assessment - Misuse of powers - Psychological harassment - Decision to award one merit point))
   (2015/C 155/63)
   Language of the case: English

      Parties

      Applicant: CW (represented by: C. Bernard-Glanz, lawyer)

      Defendant: European Parliament (represented by: M. Dean and J. Steele, acting as Agents)

      Re:

   Action seeking the annulment of the applicant’s staff report for 2012 and the decision to award her only one merit point.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Declares that CW is to bear her own costs and orders her to pay the costs incurred by the European Parliament.

      (1)  OJ C 235, 21.7.2014, p. 34.


title: Case C-101/07 P: Appeal brought on 21 February 2007 by Coop de France Bétail et Viande, formerly the Fédération nationale de la coopération bétail et viande (FNCBV) against the judgment delivered on 13 December 2006 in Joined Cases T-217/03 and T-245/03 Coop de France Bétail et Viande v Commission

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/25

         Appeal brought on 21 February 2007 by Coop de France Bétail et Viande, formerly the Fédération nationale de la coopération bétail et viande (FNCBV) against the judgment delivered on 13 December 2006 in Joined Cases T-217/03 and T-245/03 Coop de France Bétail et Viande v Commission
   (Case C-101/07 P)
   (2007/C 95/46)
   Language of the case: French
   Parties

      Appellant: Coop de France Bétail et Viande, formerly Fédération nationale de la coopération bétail et viande (FNCBV) (represented by: M. Ponsard, lawyer)

      Other parties to the proceedings: Fédération nationale des syndicats d'exploitants agricoles (FNSEA), Fédération nationale bovine (FNB), Fédération nationale de producteurs de lait (FNPL), Jeunes agriculteurs (JA), Commission of the European Communities, French Republic
   Form of order sought

               —

               set aside the judgment of the Court of First Instance of 13 December 2006 in Case T-217/03;

               —

               declare that there is no need to impose a fine on the applicant;

               —

               alternatively reduce the amount of the fine imposed by that judgment;

               —

               order the Commission to pay all the costs related to the interim and the main proceedings before the Court of First Instance and the proceedings before the Court of Justice.

         Pleas in law and main arguments
   The applicant puts forward six grounds in support of its appeal. By its first five grounds, which seek to have the contested judgment set aside, the applicant alleges, first, that the Court of First Instance erred in failing to recognise the infringement of the rights of defence by the Commission relating to the absence of a reference in the statement of objections to the method used for the calculation of the fines, second, the distortion by the Court of First Instance of the evidence on the secret extension of the agreement of October 2001, third, that the Court of First Instance committed an error of law by presuming that the applicant adhered to the pursuit of the agreement by referring to an overall agreement between slaughterers and breeders, without specifically establishing the appellant's acquiescence to its pursuit, fourth, even assuming that its acquiescence were to be established, the Court of First Instance erred by classifying the agreement as anti-competitive, without examining the general legal and economic background to it and its possible effects and, fifth, breach of the duty to state reasons and contradiction in the grounds of the contested judgment in that account was taken of the turnover of the appellant's members, and not that of the appellant itself, in order to ascertain whether the ceiling of 10 % of turnover referred to in Article 15(2) of Regulation No 17 had been exceeded.
   By its sixth ground of appeal which seeks, in the alternative, to obtain a reduction of the fine imposed on it, the appellant argues that if the Court rejects the preceding grounds of appeal it is appropriate, in any event, to reduce the amount of the fine imposed in so far it corresponds not to 10 % but 20 % of its turnover, which contrary to the wording of Article 15(2) of Regulation No 17.


title: Case C-293/07: Action brought on 18 June 2007 — Commission of the European Communities v Hellenic Republic

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/27

         Action brought on 18 June 2007 — Commission of the European Communities v Hellenic Republic
   (Case C-293/07)
   (2007/C 183/47)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: M. Konstantinidis and D. Recchia)

      Defendant: Hellenic Republic
   Form of order sought
   The Court is asked to:

               —

               declare that, by failing to take all the measures necessary to establish and apply a coherent, specific and integrated legal regime capable of ensuring viable management and effective protection of areas designated as Special Protection Areas, in the light of the conservation objectives of Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds, the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2), in conjunction with the first sentence of Article 4(4) of that directive, as amended by Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   On the basis of a large number of complaints, Parliamentary questions and petitions, the Commission maintains that the Hellenic Republic is not properly applying the provisions of Directive 79/409/EEC which requires measures to be taken for the conservation of wild bird habitats and for the avoidance of their pollution and deterioration.
   In the Commission's view, the infringement of the directive consists in the lack of protection for Special Protection Areas (SPAs) and also the existence of activities which may damage their integrity and have significant negative consequences for the objectives of conservation of SPAs and of the species for which the areas have been defined.
   The argument of the Greek authorities that the existing legislative framework ensures to a satisfactory degree the protection of all types of wild birds and their respective habitats is countered by the Commission with the argument that that framework does not constitute a specific and effective protection framework for all SPAs.

      (1)  OJ L 103 of 25.4.1979, p. 1.


title: Removal from the register of C-201/97

text:
10. 1. 98             EN                 Official Journal of the European Communities                                     C 7/13
          Removal from the register of C-92/97 (1)                  removal from the register of Case C-121/97: Commission
                          (98/C 7/40)                               of the European Communities v. Federal Republic of
                                                                    Germany.
By order of 11 November 1997, the President of the
Court of Justice of the European Communities has                    (1) OJ C 166, 31. 5. 1997.
ordered the removal from the register of Case C-92/97:
Commission of the European Communities v. Kingdom of
Belgium.
(1) OJ C 108, 5. 4. 1997.
                                                                              Removal from the register of C-154/97 (1)
                                                                                (98/C 7/43)
                                                                    By order of 8 October 1997, the President of the Court of
          Removal from the register of C-96/97 ( ) 1                Justice of the European Communities has ordered the
                                                                    removal from the register of Case C-154/97: Commission
                          (98/C 7/41)
                                                                    of the European Communities v. Hellenic Republic.
By order of 7 October 1997, the President of the Court of           (1) OJ C 212, 12. 7. 1997.
Justice of the European Communities has ordered the
removal from the register of Case C-96/97: Commission of
the European Communities v. French Republic.
(1) OJ C 131, 26. 4. 1997.
                                                                              Removal from the register of C-201/97 (1)
                                                                                (98/C 7/44)
                                                                    By order of 21 October 1997, the President of the Court
         Removal from the register of C-121/97 (1)                  of Justice of the European Communities ordered the
                          (98/C 7/42)                               removal from the register of Case C-201/97: Commission
                                                                    of the European Communities v. Hellenic Republic.
By order of 23 September 1997, the President of the Court
of Justice of the European Communities has ordered the              (1) OJ C 212, 12. 7. 1997.
                                                   COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           Fiduciaire Myson SARL, 30, rue de Cessange, against
                                                                    Council of the European Union (Agents: Martin Bauer and
                      of 21 October 1997                            TheÂreÁse Blanchet) Ð application for the annulment of a
                                                                    decision not to promote Ð the Court of First Instance
in Case T-168/96: Catherine Patronis v. Council of the
                                                                    (Third Chamber), composed of B. Vesterdorf, President,
                      European Union (1)
                                                                    C. P. BrieÈt and A. Potocki, Judges; H. Jung, Registrar, gave
                                                                    a judgment on 21 October 1997, the operative part of
(Officials Ð Decision not to promote Ð Consideration of
                                                                    which is as follows:
comparative merits Ð Leave on grounds of sickness and
accident Ð Account taken of the work actually done
                 during the reference period)
                          (98/C 7/45)                               1. The application is dismissed.
                                                                    2. Each party shall bear its own costs.
               (Language of the case: French)
                                                                    (1) OJ C 388, 21. 12. 1996.
In Case T-168/96: Catherine Patronis, represented by Jean-
NoeÈl Louis, Thierry Demaseur and Ariane Tornel, of the
Brussels Bar, with an address for service in Luxembourg at


title: Case T-17/13: Action brought on 11 January 2013 — ANKO v Commission

text:
               16.3.2013

               EN

               Official Journal of the European Union

               C 79/24

         Action brought on 11 January 2013 — ANKO v Commission
   (Case T-17/13)
   2013/C 79/43
   Language of the case: Greek

      Parties

      Applicant: ANKO AE Antiprosopion, Emporiou kai Viomikhanias (Athens, Greece) (represented by: V. Christianos, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare that the applicant is under no obligation to repay as unduly paid the sum which the Commission paid to it in respect of the POCEMON project;

               —

               declare that the applicant is under no obligation to pay to the Commission liquidated damages in respect of the POCEMON project;

               —

               declare that the Commission is not entitled to offset the amount which it is obliged to pay to ANKO, and

               —

               order the Commission to pay the applicant’s costs.

      Pleas in law and main arguments

   This action relates to the liability of the Commission under grant agreement No 216088 for the carrying out of the project ‘Point Of CarE MONitoring and Diagnostics for Autoimmune Diseases’ (POCEMON), pursuant to Article 272 TFEU. In particular, the applicant maintains that although it performed its contractual obligations the Commission, contrary to the terms of the abovementioned agreement, the principle of good faith, the prohibition of abuse of rights and proportionality, sought the repayment of sums paid to ΑΝΚΟ. Further, the Commission carried out an offsetting of claims which were not certain, of a fixed amount and due.

               —

               For those reasons, the applicant maintains: first, that it is under no obligation to repay as unduly paid the whole of the sum which the Commission paid to it in respect of the POCEMON project; secondly, it is under no obligation to pay to the Commission liquidated damages in respect of the POCEMON project, and thirdly that the Commission is not entitled to offset against sums which it is obliged to pay to the applicant sums which are not certain, of a fixed amount and due.


title: Case T-277/08: Action brought on 15 July 2008 — Bayer Healthcare v OHIM — Laboratorios ERN (CITRACAL)

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/15

         Action brought on 15 July 2008 — Bayer Healthcare v OHIM — Laboratorios ERN (CITRACAL)
   (Case T-277/08)
   (2008/C 236/26)
   Language in which the application was lodged: English
   Parties

      Applicant: Bayer Healthcare LLC (Morristown, United States) (represented by: M. Edenborough, barrister)

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

      Other party to the proceedings before the Board of Appeal: Laboratorios ERN, SA (Sant Just Desvern, Spain)
   Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 May 2008 in case R 459/2007-4; and

               —

               Order the defendant or alternatively the other party to the proceedings before the Board of Appeal to pay the costs. As a further alternative, to order the defendant and the other party to the proceedings before the Board of Appeal to be liable jointly and severally for the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant (formerly Mission Pharmacal Company)

      Community trade mark concerned: The word mark ‘CITRACAL’ for goods in class 5, application No 1 757 855

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal (formerly Laboratorios Diviser-Aquilea, SL)

      Mark or sign cited: Spanish trade mark registration No 223 532 of the mark ‘CICATRAL’ for goods in classes 1 and 5

      Decision of the Opposition Division: Uphold the opposition with respect to all the contested goods

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: The Board of Appeal erred in its assessment of the evidence of proof-of-use, and in particular on the issue of the provision of a suitable translation of the goods in relation to which the mark cited in the opposition proceedings was used. Further, the Board of Appeal erred in its assessment of the existence of a likelihood of confusion between the conflicting trade marks.