title: Action brought on 6 April 1998 by Antonio Giannini against the Commission of the European Communities (Case T-57/98)

text:
13.6.98                EN                 Official Journal of the European Communities                                  C 184/13
     provision in which the UEAPME's right to participate            Action brought on 6 April 1998 by Antonio Giannini
     in negotiations is recognized;                                    against the Commission of the European Communities
                                                                                (Case T-57/98)
Ð order the Council to pay the costs.                                                        (98/C 184/24)
                                                                                (Language of the case: French)
Pleas in law and main arguments adduced in support:
                                                                     An action against the Commission of the European
This action concerns the second directive to implement an            Communities was brought before the Court of First
agreement concluded by management and labour at                      Instance of the European Communities on 6 April 1998
Community level on the basis of the Agreement on social              by Antonio Giannini, residing in Brussels, represented by
policy annexed to the Protocol on social policy annexed to           Marc Dallemagne and Carlo Locchi, of the Brussels Bar.
the Treaty of Rome as amended by the Maastricht Treaty.
The applicant, an employers' association combining small
and medium-sized undertakings at European level,                     The applicant claims that the Court should:
challenges that directive, in so far as it concerns those
undertakings. The first directive pursuant to the
                                                                     Ð rule that the present case is connected with Case
abovementioned agreement (1) was also the subject of an
                                                                         T-282/97 and order that it be joined therewith;
action brought by the same applicant (2).
                                                                     Ð annul the defendant's decision to fill post COM/062/
The pleas in law and main arguments put forward by the                   97 by appointing another person thereto;
applicant in the present case repeat to a large extent those
relied on in Case T-135/96 UEAPME v. Council.
                                                                     Ð annul the defendant's decision No 6872 of
                                                                         18 December 1997 rejecting complaint No R/560/97,
In the applicant's view, the contested directive infringes its           which was notified to the applicant on 6 January
right to participate in negotiations, the freedom of                     1998;
association of small and medium-sized enterprises and the
principles which lie at the basis of social democracy. In its
                                                                     Ð order that the applicant be paid compensation for the
view, the Commission was under an obligation not only to
                                                                         damage suffered by him, amounting to the difference
ascertain the representativeness of the signatories to the
                                                                         between the applicant's current salary and the salary
framework agreement but also and above all to ascertain
                                                                         which he would have received in the post at issue
the representativeness of the other employers and workers
                                                                         since 28 April 1995;
who had also demonstrated a wish to participate in
negotiations, in particular where one of them represents
those enterprises whose interests are specifically                   Ð order the defendant to pay all of the costs.
mentioned in Article 2(2) of the Agreement on social
policy. It is in that way also that the contested directive
breaches that provision.                                             Pleas in law and main arguments adduced in support:
Likewise, the directive at issue infringes Articles 3 and 4          With regard to the facts of the case, the applicant refers to
of the agreement inasmuch as the Commission, in the                  the claims already advanced by him in Case T-282/97 (1),
interests of ensuring balanced support for the parties to            which form, according to the applicant, an integral part of
social dialogue, should have drawn the attention of the              the present application. The applicant pleads misuse of
other partners to the need to include the UEAPME in the              powers, since the contested decision was taken not in the
negotiating process rather than draw a distinction between           interests of the service but with a view to offering one of
general inter-trade organizations and the others.                    the applicant's colleagues a promotion which that
                                                                     colleague did not deserve. According to the applicant, that
                                                                     person did not fulfil, at the time of his appointment, the
                                                                     conditions attaching to the duties which he was carrying
Finally, the applicant claims that the adoption of the
                                                                     out.
directive at issue breaches the principles of patere legem
quam ipse fecisti and equal treatment.
                                                                     In addition, the applicant contests the defendant's refusal
(1) Council Directive 96/34/EC of 3 June 1996 on the framework       to inform him of the merits of the other candidates. The
    agreement on parental leave concluded by UNICE, CEEP and         applicant considers that that refusal can only have been
    the ETUC (OJ L 145, 19.6.1996, p. 4).                            intended to protect the appointment of an official who did
(2) Case T-135/96 UEAPME v. Council (OJ C 318, 26.10.1996,           not possess the qualifications required.
    p. 21).
                                                                     Lastly, the applicant repeats his application for
                                                                     compensation for the material and non-material damage
 ---pagebreak--- C 184/14             EN                  Official Journal of the European Communities                                    13.6.98
suffered by him, since he considers that he has adequately          According to the contested decision, the above system
demonstrated the service-related fault and the causal link          contains provisions which involve discrimination on the
between that fault and the damage suffered by him.                  grounds of nationality, conflict with the principle of
                                                                    freedom of establishment and constitute aid to encourage
                                                                    investment in ships in a way which is liable to infringe
(1) OJ C 387, 20.12.97, p. 25.
                                                                    Community rules and grants aid for the leasing of ships,
                                                                    which constitutes operating aid of the type not allowed by
                                                                    Community guidelines.
                                                                    In support of its claims, the applicant alleges:
Action brought on 6 April 1998 by Sardegna Lines Ð
Servizi Marittimi della Sardegna SpA against the                    Ð infringement of Council Directive 90/684/EEC of
         Commission of the European Communities                         21 December 1990 on aid to shipbuilding (1), which
                                                                        forms part of a system of incentives in the industry
                        (Case T-58/98)
                                                                        which has not been taken into consideration at all in
                         (98/C 184/25)                                  the procedure in question;
                (Language of the case: Italian)                     Ð error of assessment and misuse of power in that the
                                                                        legal and factual elements used to support the
                                                                        contested decision are absent. In this respect, the
An action against the Commission of the European                        Commission made an error of assessment with regard
Communities was brought before the Court of First                       to the alleged substantial amendments which Law 11/
Instance of the European Communities on 6 April 1998                    1988 made to Law 20/1951, which led the
by Sardegna Lines Ð Servizi Marittimi della Sardegna                    Commission to characterize the system of regional
SpA, represented by Francesco Caruso, Ugo Iaccarino,                    incentives at issue as new aid' and to consider it
Beniamino Carnevale and Claudia Caruso, of the Naples                   subject to the obligation to give prior notice pursuant
Bar, with an address for service in Luxembourg at the                   to Article 93(3) of the Treaty;
Chambers of Francesco Caruso, 2A Rue Van Moer,
Brussels.
                                                                    Ð infringement and erroneous application of Article 92(1)
                                                                        of the Treaty inasmuch as trade between the Member
The applicant claims that the Court should:                             States is not affected and competition is not distorted;
                                                                    Ð that the conditions for the application of
Ð annul Commission Decision 98/95/EC of 21 October                      Article 92(3)(a) and (c) of the Treaty are met in that
    1997 concerning aid granted by the Region of Sardinia               Sardinia is an underdeveloped Italian region, and the
    (Italy) to shipping companies in Sardinia (OJ L 20 of               defendant should have taken account of the isolation
    27.1.1998, p. 30);                                                  and remoteness of the region;
Ð order the Commission to pay the costs.                            Ð breach of essential procedural requirements inasmuch
                                                                        as the statement of reasons for the decision is
                                                                        inadequate.
Pleas in law and main arguments adduced in support:
                                                                    (1) OJ L 380, 31.12.1990, p. 27.
The applicant contests the Commission's decision of
21 October 1997 inasmuch as it considers a system of aid
granted by the region of Sardinia to shipping line to be
unlawful.
                                                                    Action brought on 8 April 1998 by Volkswagen AG
The allegedly unlawful aid was introduced by Sardinian
                                                                       against the Commission of the European Communities
Regional Law No 20 of 15 May 1951 which established a
fund at the Credito Industriale del Banco di Sardegna for                                   (Case T-62/98)
the grant of loans to shipping companies intending to
                                                                                (98/C 184/26)
build, purchase, convert or repair vessels. The grant of
such loans was subject to the condition that the
beneficiary undertaking had its head office, country of                            (Language of the case: German)
domicile for tax purposes and port of register in the
region of Sardinia. A number of amendments, which the
applicant claims were substantial, were made to that                An action against the Commission of the European
system of aid subsequently by Regional Law No 11/98.                Communities was brought before the Court of First


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/43

         Action brought on 19 March 2003 by Mast-Jägermeister AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-103/03)
   (2004/C 94/124)
   Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German)
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 19 March 2003 by Mast-Jägermeister AG, Wolfenbüttel (Germany), represented by C. Drzymalla, lawyer. Licorera Zacapaneca S.A., Zacapa, (Guatemala) was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               set aside the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 January 2003 (Case R 407/2002-1);

               —

               order the Office to pay the costs.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               Licorera Zacapaneca S.A.

               Community trade mark sought:

               the figurative mark ‘VENADO’ for goods in Classes 32 and 33 (inter alia, mineral and aerated waters and other non-alcoholic drinks, rum, rum liqueurs and brandy) — Application No 986976

               Proprietor of mark or sign cited in the opposition proceedings:

               the applicant

               Mark or sign cited in opposition:

               the figurative mark in the form of a stag's head with a cross for goods in Classes 18, 25, 32 and 33 (inter alia, umbrellas, clothing, non-alcoholic beverages included in Class 32, wines and spirits) — Trade mark No 337337

               Decision of the Opposition Division:

               rejection of the application

               Decision of the Board of Appeal:

               the opposition of the applicant for the mark was allowed and the objection of the applicant before the Court dismissed

               Pleas in law:

               infringement of Article 73 of Regulation (EC) No 40/94;
               incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94;
               incorrect appraisal of the similarity of the marks;
               failure to take into account the reputation of the objection mark.


title: Case T-779/14: Order of the General Court of 14 September 2015 — Slovakia v Commission (Action for annulment — Own resources of the European Union — Financial responsibility of the Member States — Obligation to pay the Commission the amount corresponding to a loss of own resources — Letter from the Commission — Act not open to challenge — Inadmissibility)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/37

         Order of the General Court of 14 September 2015 — Slovakia v Commission
   (Case T-779/14) (1)

   ((Action for annulment - Own resources of the European Union - Financial responsibility of the Member States - Obligation to pay the Commission the amount corresponding to a loss of own resources - Letter from the Commission - Act not open to challenge - Inadmissibility))
   (2015/C 381/43)
   Language of the case: Slovak

      Parties

      Applicant: Slovak Republic (represented by: B. Ricziová, acting as Agent)

      Defendant: European Commission (represented by: L. Grønfeldt, A. Tokár and M. Wasmeier, acting as Agents)

      Re:

   Action for the annulment of the alleged decision of the Directorate-General for Budget of the Commission, contained in letter BUDG/B/03MV D (2014) 3139078 of 24 September 2014, by which the Commission formally demanded the Slovak Republic to make funds available to the Commission for the gross amount of EUR 1 4 53  723,12 (of which 25 % should be deducted to cover expense incurred in collection) corresponding to a loss of traditional own resources, at the latest by the first working day following the 19th day of the second month after the letter was sent.

      Operative part of the order

   The Court:

               1.

               Dismisses the action.

               2.

               Holds that there is no need to rule on the applications for leave to intervene of the Federal Republic of Germany and Romania.

               3.

               Orders the Slovak Republic to bear its own costs and to pay those incurred by the European Commission.

               4.

               Orders the Slovak Republic, the Commission, the Federal Republic of Germany and Romania each to bear their own costs relating to the applications for leave to intervene.

      (1)  OJ C 89, 16.3.2015.


title: Case T-568/13: Order of the General Court of 28 August 2015 — Bimbo v OHIM — Kimbo (KIMBO)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/57

         Order of the General Court of 28 August 2015 — Bimbo v OHIM — Kimbo (KIMBO)
   (Case T-568/13) (1)

   (2015/C 381/67)
   Language of the case: English
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 24, 25.1.2014.


Avis juridique important

|

E1994J0003

ORDER OF THE COURT of 15 June 1994 in Case E-3/94: Alexander Flandorfer Friedman, Erna Flandorfer Friedman, and GFG Bau Dachdecker Spengler GmbH against the Republic of Austria

Official Journal C 250 , 08/09/1994 P. 0007 - 0007

ORDER OF THE COURT of 15 June 1994 in Case E-3/94: Alexander Flandorfer Friedman, Erna Flandorfer Friedman, and GFG Bau Dachdecker Spengler GmbH against the Republic of Austria (94/C 250/06)In case E-3/94: Alexander Flandorfer Friedman, Erna Flandorfer Friedman and GFG Bau Dachdecker Spengler GmbH, Vienna, v. Republic of Austria - application for a decision on jurisdiction, for legal aid including the appointment of a lawyer, and for a declaration that the Republic of Austria has infringed Articles 6, 7, 28 (2) and (3), 31 and 34 of the EEA Agreement and Articles 8 (1) and 12 of the European Convention on Human Rights - the Court, composed of Leif Sevón, President, Björn Haug. Thór Vilhjálmsson (Rapporteur), Kurt Herndl and Sven Norberg, Judges; Karin Hökborg, Registrar, made an order on 15 June 1994, the operative part of which is as follows:1. the application, except as far as it concerns legal aid, is dismissed as inadmissible.2. the application, as far as it concerns legal aid, is rejected.3. the case shall be removed from the Register of the Court.4. the applicants shall bear their costs.


title: Case C-351/08: Reference for a preliminary ruling from the Bundessozialgericht (Germany) lodged on 4 August 2008 — Christian Grimme v Deutsche Angestellten Krankenkasse

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/11

         Reference for a preliminary ruling from the Bundessozialgericht (Germany) lodged on 4 August 2008 — Christian Grimme v Deutsche Angestellten Krankenkasse
   (Case C-351/08)
   (2008/C 272/19)
   Language of the case: German
   Referring court
   Bundessozialgericht
   Parties to the main proceedings

      Applicant: Christian Grimme

      Defendant: Deutsche Angestellten Krankenkasse
   Question referred
   Are the provisions of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114, p. 6) (1), in particular Articles 1, 5, 7 and 16 thereof and Articles 12, 17, 18 and 19 of Annex I thereto, to be interpreted as meaning that they preclude a rule which obliges a member of a managing board of a company limited by shares governed by Swiss law who is employed in Germany to be insured in the German statutory pension insurance scheme, whereas members of managing boards of companies limited by shares governed by German law are exempt from that obligation?

      (1)  OJ 2002 L 114, p. 6.


title: Case C-168/11: Judgment of the Court (Second Chamber) of 28 February 2013 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Manfred Beker, Christa Beker v Finanzamt Heilbronn (Free movement of capital — Income tax — Income from capital — Convention for the avoidance of double taxation — Dividends distributed by companies established in Member States and third countries — Calculation of the maximum amount of foreign withholding tax deductible against national income tax — Failure to take account of personal and lifestyle costs — Justification)

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/9

         Judgment of the Court (Second Chamber) of 28 February 2013 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Manfred Beker, Christa Beker v Finanzamt Heilbronn
   (Case C-168/11) (1)

   (Free movement of capital - Income tax - Income from capital - Convention for the avoidance of double taxation - Dividends distributed by companies established in Member States and third countries - Calculation of the maximum amount of foreign withholding tax deductible against national income tax - Failure to take account of personal and lifestyle costs - Justification)
   2013/C 114/11
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicants: Manfred Beker, Christa Beker

      Defendant: Finanzamt Heilbronn

      Re:

   Request for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 56 EC — National legislation on income tax on natural persons which allows deduction of income tax paid abroad only with regard to the share of national income tax charged on the foreign revenue — Method of determining that share of national income tax resulting in deductible expenses and extraordinary costs also being allocated proportionately to the foreign income, and thus resulting in a corresponding reduction of the maximum amount deductible with regard to taxes paid abroad

      Operative part of the judgment

   Article 63 TFEU must be interpreted as precluding rules of a Member State under which, in the context of a system aimed at limiting double taxation, where persons subject to unlimited tax liability pay on foreign income, in the State where that income originates, a tax equivalent to the income tax levied by the said Member State, the offsetting of that foreign tax against the amount of income tax levied in the said Member State is carried out by multiplying the amount of the tax due in respect of taxable income in the same Member State, including foreign income, by the proportion that that foreign income bears to total income, that latter sum not taking into account special expenditure or extraordinary costs such as costs relating to lifestyle or to personal and family circumstances.

      (1)  OJ C 211, 16.7.2011.


title: Case T-205/05: Order of the Court of First Instance of 26 February 2007 — Evropaïki Dynamiki v Commission (Actions for annulment — Arbitration clause — e-Content Programme — Termination of contract — Repayment — Inadmissibility)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/41

         Order of the Court of First Instance of 26 February 2007 — Evropaïki Dynamiki v Commission
   (Case T-205/05) (1)

   (Actions for annulment - Arbitration clause - e-Content Programme - Termination of contract - Repayment - Inadmissibility)
   (2007/C 95/84)
   Language of the case: English
   Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece)

      Defendant: Commission of the European Communities (represented by: M. Wilderspin and M. Patkova, Agents)
   Re:
   Action for annulment, first, of the Commission's decision of 16 May 2003 to terminate contract EDC-53007 EEBO/27873; secondly, of the Commission's decision of 12 November 2004 to reimburse to the applicant an amount for the costs of labour not exceeding EUR 85 971; and thirdly, the Commission's decision of 7 March 2005 to issue a debit note in the amount of EUR 59 485 in respect of the applicant.
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               The applicant is ordered to bear its own costs and to pay those of the Commission.

      (1)  OJ C 193, 6.8.2005.


title: Case C-599/10: Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovak Republic) lodged on 17 December 2010 — SAG ELV Slovensko, a.s., FELA Management AG, ASCOM (Schweiz) AG, Asseco Central Europe, a.s., TESLA Stropokov, a.s., Autostrade per ľItalia S.p.A., EFKON AG, Stalexport Autostrady S.A. v Úrad pre verejné obstarávanie

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/11

         Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovak Republic) lodged on 17 December 2010 — SAG ELV Slovensko, a.s., FELA Management AG, ASCOM (Schweiz) AG, Asseco Central Europe, a.s., TESLA Stropokov, a.s., Autostrade per ľItalia S.p.A., EFKON AG, Stalexport Autostrady S.A. v Úrad pre verejné obstarávanie
   (Case C-599/10)
   2011/C 72/19
   Language of the case: Slovak

      Referring court

   Najvyšší súd Slovenskej republiky

      Parties to the main proceedings

      Applicants: SAG ELV Slovensko, a.s., FELA Management AG, ASCOM (Schweiz) AG, Asseco Central Europe, a.s., TESLA Stropokov, a.s., Autostrade per ľItalia S.p.A., EFKON AG, Stalexport Autostrady S.A.

      Defendant: Úrad pre verejné obstarávanie

      Intervener: Národná dial'ničná spoločnost, a.s.

      Questions referred

               1.

               Is the interpretation that, under Article 51, in conjunction with Article 2, of Directive 2004/18/EC (1) 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, taking account of the principle of non discrimination and transparency in the award of public contracts, the contracting authority is obliged to seek clarification of a tender, respecting the subjective procedural right of the individual to be requested to supplement or clarify certificates and documents submitted pursuant to Articles 45 to 50 of the Directive, if a disputable or unclear understanding of the tenderer’s bid could result in the exclusion of that tenderer, in conformity with the above Directive in the wording in effect in the relevant period?

               2.

               Is the interpretation that, under Article 51, in conjunction with Article 2 of Directive 2004/18/EC, taking account of the principle of non discrimination and transparency in the award of public contracts, the contracting authority is not obliged to seek clarification of a tender if the contracting authority considers it established that the requirements regarding the subject matter of the contract have not been met, in conformity with the Directive in the wording in effect in the relevant period?

               3.

               Is a provision of national law under which a committee established to evaluate tenders only may request tenderers in writing to clarify their bid in conformity with Article 51 and Article 2 of Directive 2004/18/EC in the wording in effect in the relevant period? Is a contracting authority’s procedure, according to which it is not obliged to request a tenderer to clarify an abnormally low price, in conformity with Article 55 of Directive 2004/18/EC, and, on the formulation of the question put by the contracting authority to the applicants in connection with the abnormally low price, did Applicants I and II have the opportunity to explain sufficiently the constituent features of the tender submitted?

      (1)  OJ 2004 L 134, p. 114.


title: Joined Cases C-446/09 and C-495/09: Judgment of the Court (First Chamber) of 1 December 2011 (references for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen, Court of Appeal (England and Wales) (Civil Division) — Belgium, United Kingdom) — Koninklijke Philips Electronics NV v Lucheng Meijing Industrial Company Ltd, Far East Sourcing Ltd, Röhlig Hong Kong Ltd, Röhlig Belgium NV (C-446/09), Nokia Corporation v Her Majesty’s Commissioners of Revenue and Customs (C-495/09) (Common commercial policy — Combating the entry into the European Union of counterfeit and pirated goods — Regulations (EC) No 3295/94 and No 1383/2003 — Customs warehousing and external transit of goods from non-member States which constitute imitations or copies of goods protected in the European Union by intellectual property rights — Action by the authorities of the Member States — Conditions)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/4

         Judgment of the Court (First Chamber) of 1 December 2011 (references for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen, Court of Appeal (England and Wales) (Civil Division) — Belgium, United Kingdom) — Koninklijke Philips Electronics NV v Lucheng Meijing Industrial Company Ltd, Far East Sourcing Ltd, Röhlig Hong Kong Ltd, Röhlig Belgium NV (C-446/09), Nokia Corporation v Her Majesty’s Commissioners of Revenue and Customs (C-495/09)
   (Joined Cases C-446/09 and C-495/09) (1)

   (Common commercial policy - Combating the entry into the European Union of counterfeit and pirated goods - Regulations (EC) No 3295/94 and No 1383/2003 - Customs warehousing and external transit of goods from non-member States which constitute imitations or copies of goods protected in the European Union by intellectual property rights - Action by the authorities of the Member States - Conditions)
   2012/C 32/07
   Language of the case: Dutch and English

      Referring courts

   Rechtbank van eerste aanleg te Antwerpen, Court of Appeal (England and Wales) (Civil Division)

      Parties to the main proceedings

      Applicants: Koninklijke Philips Electronics NV (C-446/09), Nokia Corporation (C-495/09)

      Defendants: Lucheng Meijing Industrial Company Ltd, Far East Sourcing Ltd, Röhlig Hong Kong Ltd, Röhlig Belgium NV (C-446/09), Her Majesty’s Commissioners of Revenue and Customs (C-495/09)

      In the presence of: International Trademark Association

      Re:

   (C-446/09)
   Reference for a preliminary ruling — Rechtbank van eerste aanleg te Antwerpen — Interpretation of Article 6(2)(b) of Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods (OJ 1994 L 341, p. 8) — Release for free circulation and entry for a suspensive procedure — Applicable law — Goods originating in a non-member country — Infringement of the holder’s intellectual-property rights
   (C-495/09)
   Reference for a preliminary ruling — Court of Appeal (England and Wales) (Civil Division) — Interpretation of Article 2(1)(a) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (OJ 2003 L 196, p. 7) — Definition of ‘counterfeit goods’ — Goods bearing a Community trade mark in transit from a non Member State where they were manufactured and intended for the market of another non Member State — ‘Nokia’ mobile telephones

      Operative part of the judgment

   Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights, as amended by Council Regulation (EC) No 241/1999 of 25 January 1999, and Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights must be interpreted as meaning that:

               —

               goods coming from a non-member State which are imitations of goods protected in the European Union by a trade mark right or copies of goods protected in the European Union by copyright, a related right or a design cannot be classified as ‘counterfeit goods’ or ‘pirated goods’ within the meaning of those regulations merely on the basis of the fact that they are brought into the customs territory of the European Union under a suspensive procedure;

               —

               those goods may, on the other hand, infringe the right in question and therefore be classified as ‘counterfeit goods’ or ‘pirated goods’ where it is proven that they are intended to be put on sale in the European Union, such proof being provided, inter alia, where it turns that the goods have been sold to a customer in the European Union or offered for sale or advertised to consumers in the European Union, or where it is apparent from documents or correspondence concerning the goods that their diversion to European Union consumers is envisaged;

               —

               in order that the authority competent to take a substantive decision may profitably examine whether such proof and the other elements constituting an infringement of the intellectual property right relied upon exist, the customs authority to which an application for action is made must, as soon as there are indications before it giving grounds for suspecting that such an infringement exists, suspend the release of or detain those goods; and

               —

               those indications may include, inter alia, the fact that the destination of the goods is not declared whereas the suspensive procedure requested requires such a declaration, the lack of precise or reliable information as to the identity or address of the manufacturer or consignor of the goods, a lack of cooperation with the customs authorities or the discovery of documents or correspondence concerning the goods in question suggesting that there is liable to be a diversion of those goods to European Union consumers.

      (1)  OJ C 24, 30.1.2010.

      OJ C 37, 13.2.2010.


title: Assignment of a new Judge to Chambers

text:
24.1.2004             EN                    Official Journal of the European Union                                            C 21/1
                                                                 I
                                                          (Information)
                                             COURT OF JUSTICE
                                                      COURT OF JUSTICE
       Taking of the oath by a new Judge at the Court               Lists to be used for determining the composition of
                                                                                formations of the Court
                         (2004/C 21/01)
                                                                                (2004/C 21/03)
Having been appointed as Judge of the Court of Justice of the       At its meeting of 13 January 2004 the Court drew up the list
European Communities by decision of the Representatives of          referred to in Article 11b(2) of the Rules of Procedure for the
the Governments of the Member States of 23 October 2003 (1),        purposes of determining the composition of the Grand
Sir Konrad Schiemann took the oath before the Court on              Chamber as follows:
7 January 2004.
                                                                    —     Mr Gulmann
(1) OJ L 285, 1.11.2003, p. 42.                                     —     Sir Konrad Schiemann
                                                                    —     Mr La Pergola
                                                                    —     Mr Lenaerts
                                                                    —     Mr Puissochet
          Assignment of a new Judge to Chambers                     —     Ms Silva de Lapuerta
                                                                    —     Mr Schintgen
                         (2004/C 21/02)
                                                                    —     Mr Rosas
                                                                    —     Ms Macken
At its meeting of 13 January 2004 the Court of Justice of the
European Communities decided to assign Sir Konrad to the            —     Mr Cunha Rodrigues
First and Third Chambers.
                                                                    —     Ms Colneric
The First and Third Chambers are in consequence composed            —     Mr von Bahr
as follows:
                                                                    At its meeting of 13 January 2004 the Court drew up the lists
First Chamber                                                       referred to in the first paragraph of Article 11c(2) of the Rules
                                                                    of Procedure for the purposes of determining the composition
Mr Jann, President of the Chamber,                                  of the First and Third Chambers as follows:
                                                                    First Chamber
and Mr Rosas, Mr La Pergola, Mr von Bahr, Ms Silva de
Lapuerta, Mr Lenaerts and Sir Konrad Schiemann, Judges.             —     Mr La Pergola
Third Chamber                                                       —     Sir Konrad Schiemann
Mr Rosas, President of the Chamber,                                 —     Mr von Bahr
and Mr Schintgen, Ms Colneric and Sir Konrad Schiemann,             —     Mr Lenaerts
Judges.                                                             —     Mr Rosas
                                                                    —     Ms Silva de Lapuerta


title: Judgment of the Court of 29 June 1999 in Case C-60/98 (reference for a preliminary ruling from the Tribunale Civile e Penale, Milan): Butterfly Music Srl v Carosello Edizioni Musicali e Discografiche Srl (CEMED) (Copyright and related rights - Directive 93/98/EEC - Harmonisation of the term of protection)

text:
28.8.1999                EN                      Official Journal of the European Communities                                            C 246/5
                  JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                          (Sixth Chamber)                                                             of 29 June 1999
                                                                            in Case C-60/98 (reference for a preliminary ruling from
                           of 29 June 1999                                  the Tribunale Civile e Penale, Milan): Butterfly Music
                                                                            Srl v Carosello Edizioni Musicali e Discografiche Srl
                                                                                (CEMED) (1)
in Case C-256/97 (reference for a preliminary ruling from
the Tribunal de Commerce de Bruxelles): relating to
   Déménagements-Manutention Transport SA (DMT) (1)                         (Copyright and related rights — Directive 93/98/EEC —
                                                                                Harmonisation of the term of protection)
(Article 92 of the EC Treaty (now, after amendment, Article
87 EC) — Concept of State aid — Payment facilities granted                                            (1999/C 246/09)
by a public body responsible for collecting employers’ and
              workers’ social security contributions)
                                                                                (Language of the case: Italian)
                           (1999/C 246/08)
                                                                            (Provisional translation: the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: French)
                                                                            In Case C-60/98: reference to the Court under Article 234 EC
                                                                            (ex Article 177) of the EC Treaty from the Tribunale Civile e
(Provisional translation: the definitive translation will be published      Penale (Civil and Criminal District Court), Milan for a prelimi-
                    in the European Court Reports)                          nary ruling in the proceedings pending before that court
                                                                            between Butterfly Music Srl and Carosello Edizioni Musicali e
                                                                            Discografiche Srl (CEMED), intervener: Federazione Industria
                                                                            Musicale Italiana (FIMI) — on the interpretation of Article
In Case C-256/97: reference to the Court under Article 234 EC               10 of Council Directive 93/98/EEC of 29 October 1993
(ex Article 177) by the Tribunal de Commerce, Brussels,                     harmonising the term of protection of copyright and certain
Belgium, for a preliminary ruling in the proceedings pending                related rights (OJ 1993 L 290, p. 9) — the Court, composed
before that court relating to Déménagements-Manutention                     of: G.C. Rodriguez Iglesias, President, P.J.G. Kapteyn,
Transport SA (DMT), on the interpretation of Article 92 of the              J.-P. Puissochet (Rapporteur), G. Hirsch and P. Jann, Presidents
EC Treaty (now, after amendment, Article 87 EC) — the Court                 of Chambers, G.F. Mancini, J.C. Moitinho de Almeida, C. Gul-
(Sixth Chamber), composed of: P.J.G. Kapteyn, President of                  mann, J.L. Murray, D.A.O. Edward and L. Sevón, Judges;
Chamber, G. Hirsch (Rapporteur) and J.L. Murray, Judges;                    G. Cosmas, Advocate General; L. Hewlett, Administrator, for
F.G. Jacobs, Advocate General; D. Louterman-Hubeau, Princi-                 the Registrar, has given a judgment on 29 June 1999, in which
pal Administrator, for the Registrar, has given a judgment on               it has ruled:
29 June 1999, in which it has ruled:
                                                                            Article 10(3) of Council Directive 93/98/EEC of 29 October 1993
Payment facilities in respect of social security contributions granted      harmonising the term of protection of copyright and certain related
in a discretionary manner to an undertaking by the body responsible         rights does not preclude a provision of national law such as the
for collecting such contributions constitute State aid for the purposes     provision which, in Italian Law No 52 of 6 February 1996, as
of Article 92(1) of the EC Treaty (now, after amendment, Article            amended by Italian Law No 650 of 23 December 1996, lays down
87(1) EC) if, having regard to the size of the economic advantage so        a limited period in which sound-recording media may be distributed
conferred, the undertaking would manifestly have been unable to             by persons who, by reason of the expiry of the rights relating to those
obtain comparable facilities from a private creditor in the same            media under the previous legislation, had been able to reproduce and
situation vis-à-vis that undertaking as the collecting body.                market them before that Law entered into force.
(1) OJ C 271 of 6.9.1997.                                                   (1) OJ C 137 of 2.5.1998.


title: Case C-340/16: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 16 June 2016 — Landeskrankenanstalten-Betriebsgesellschaft-KABEG v Mutuelles du Mans assurances IARD SA (MMA IARD)

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/18

         Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 16 June 2016 — Landeskrankenanstalten-Betriebsgesellschaft-KABEG v Mutuelles du Mans assurances IARD SA (MMA IARD)
   (Case C-340/16)
   (2016/C 305/26)
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Appellant on a point of law: Landeskrankenanstalten-Betriebsgesellschaft-KABEG

      Respondent in the appeal on a point of law: Mutuelles du Mans assurances IARD SA (MMA IARD)

      Questions referred

               1.

               Is the action brought by an employer established in Austria seeking compensation for the damage passed on to that employer as a result of the continued payment of remuneration to its employee domiciled in Austria a ‘matter relating to insurance’ within the meaning of Article 8 of Regulation (EC) No 44/2001, (1) in the case where

                           (a)

                           the employee was injured in a road traffic accident in a Member State (Italy),

                           (b)

                           the action is brought against the civil-liability insurer, domiciled in another Member State (France), of the vehicle at fault, and

                           (c)

                           the employer is established as a public-law institution with legal personality?

               2.

               If Question 1 is answered in the affirmative:
               Should Article 9(1)(b), in conjunction with Article 11(2), of Regulation (EC) No 44/2001 be interpreted as meaning that the employer which has continued to pay remuneration can, as an ‘injured party’, sue the civil-liability insurer of the vehicle at fault in the courts for the place where the employer is domiciled, in so far as such a direct action is permitted?

      (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


title: Case T-169/08: Action brought on 13 May 2008 — DEI v Commission

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/24

         Action brought on 13 May 2008 — DEI v Commission
   (Case T-169/08)
   (2008/C 183/47)
   Language of the case: Greek
   Parties

      Applicant: Dimosia Epikhirisi Ilektrismou A.E. (Athens, Greece) (represented by: P. Anestis, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the contested decision;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   By this action, the applicant seeks the annulment of Commission Decision C(2008) 824 final of 5 March 2008 relating to the grant or retention in force by the Hellenic Republic of rights for the mining of lignite in favour of Dimosia Epikhirisi Ilektrismou (Public Power Corporation).
   The applicant puts forward the following pleas for annulment.
   The applicant submits, first, that the defendant erred in law when applying Article 86(1) EC in conjunction with Article 82 EC, and made a manifest error of assessment.
   Specifically, according to the applicant the defendant erred (i) with regard to the definition of the relevant markets; (ii) with regard to application of the theory of extension of a dominant position, since it did not take into account that, even in the case of public undertakings, the extension must be based on State measures that grant exclusive or special rights; (iii) because the Greek legislation on the basis of which the applicant acquired rights in respect of the exploitation of lignite does not lead to a situation of unequal opportunity to the detriment of competitors; (iv) since the aforementioned legislation does not lead to the maintenance or strengthening of the applicant's dominant position in the wholesale electricity market; and (v) by reason of a manifest error of assessment in not taking into account the recent developments in the Greek electrical energy market inasmuch as they were important for proving the absence of an infringement.
   Under the second plea for annulment, the applicant submits that, in issuing the contested decision, the defendant did not comply with the rules laid down by Article 253 EC that govern the statement of reasons.
   Under the third plea for annulment, the applicant submits that the contested decision infringes the general principles of legal certainty, of the protection of legitimate expectations and of the protection of property. The applicant further contends that it falls to the Court to rule whether the defendant misused its powers.
   Finally, under the fourth plea for annulment, the applicant submits that the defendant did not comply with the principle of proportionality as regards the corrective measures proposed by the contested decision.


title: Case C-525/08: Order of the President of the Third Chamber of the Court of 15 January 2010 (Reference for a preliminary ruling from the Bundesgerichtshof, Germany) — Sylvia Bienek v Condor Flugdienst GmbH

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/34

         Order of the President of the Third Chamber of the Court of 15 January 2010 (Reference for a preliminary ruling from the Bundesgerichtshof, Germany) — Sylvia Bienek v Condor Flugdienst GmbH
   (Case C-525/08) (1)

   2010/C 100/49

      Language of the case: German

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

      (1)  OJ C 55, 7.3.2009.


title: Case T-215/99: Action brought on 29 September 1999 by Autoservice Fermans Exclusive B.V. against the Commission of the European Communities

text:
8.1.2000               EN                    Official Journal of the European Communities                                       C 6/23
Action brought on 20 September 1999 by J.H. Gankema,                    Action brought on 22 September 1999 by Borrekuil B.V.
trading as Bovanda Oil, against the Commission of the                     against the Commission of the European Communities
                    European Communities
                                                                                (Case T-211/99)
                         (Case T-210/99)
                                                                                (2000/C 6/42)
                          (2000/C 6/41)
                                                                                (Language of the Case: Dutch)
                   (Language of the Case: Dutch)                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 22 September 1999 by Borrekuil
                                                                        B.V., of Beek (Netherlands), represented by P.W.A.M. van Roy,
An action against the Commission of the European Communi-               of the Beek Bar.
ties was brought before the Court of First Instance of the
European Communities on 20 September 1999 by J.H. Ganke-
ma, trading as Bovanda Oil, of Veendam (Netherlands),                   The applicant claims that the Court should:
represented by E. Maas, of the Groningen Bar.
                                                                        — annul the Commission’s decision (C(1999) 2539 final) (1)
                                                                            of 20 July 1999 concerning State aid granted by the
The applicant claims that the Court should annul the Com-                   Netherlands to 633 service stations in the region bordering
mission’s decision (C(1999) 2539 final) (1) of 20 July 1999                 Germany, and order that no demand for repayment should
concerning State aid granted by the Netherlands to 633 service              be made;
stations in the region bordering Germany, and declare that the
subsidy granted to Bovanda Oil is not contrary to any                   — order the Commission to pay the costs.
European legislation.
                                                                        Pleas in law and main arguments
Pleas in law and main arguments
                                                                        The pleas in law and main arguments are the same as in Case
                                                                        T-210/99.
The contested decision provides inter alia that the Netherlands
should reclaim the subsidies granted to 450 service stations in         (1) OJ L 280 of 30.10.1999, p. 87.
the vicinity of the German border, including that of the
applicant, by way of compensation for an increase in excise
duty introduced in the Netherlands with effect from 1 July
1997. As regards certain of those service stations, the Com-
mission took the view that the Netherlands had not provided
any, or any sufficient, information concerning the relationships
and links between owners and suppliers showing that the aid
could have no appreciable effect on trade and competition
between Member States.                                                  Action brought on 29 September 1999 by Autoservice
                                                                        Fermans Exclusive B.V. against the Commission of the
                                                                                European Communities
The applicant operates, for his own account and at his own
risk, a service station belonging to him. He states that he has                                 (Case T-215/99)
no link with any particular fuel supplier, and that the subsidy
granted to him therefore likewise falls within the de minimis
rule (2).                                                                                (2000/C 6/43)
                                                                                (Language of the Case: Dutch)
(1) OJ L 280 of 30.10.1999, p. 87.
(2) Commission notice, OJ 1996 C 68, p. 9.
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 29 September 1999 by Autoservice
                                                                        Fermans Exclusive B.V., of Amstenrade (Netherlands), rep-
                                                                        resented by H.F.A Bronneberg, of the Geelen Bar.
 ---pagebreak--- C 6/24                 EN                    Official Journal of the European Communities                                      8.1.2000
The applicant claims that the Court should:                             Action brought on 30 September 1999 by Anton Dürbeck
                                                                        GmbH against the Commission of the European Com-
— annul the Commission’s decision (C(1999) 2539 final) (1)                                           munities
    of 20 July 1999 concerning State aid granted by the
    Netherlands to 633 service stations in the region bordering
    Germany, and order that no demand for repayment should                                       (Case T-218/99)
    be made;
— alternatively, decide the matter in such way as the Court                                       (2000/C 6/45)
    shall consider to be fair and reasonable;
— order the Commission to pay the costs.
                                                                                (Language of the Case: German)
Pleas in law and main arguments
                                                                        An action against the Commission of the European Communi-
The pleas in law and main arguments are the same as in Case             ties was brought before the Court of First Instance of the
T-210/99.                                                               European Communities on 30 September 1999 by Anton
                                                                        Dürbeck GmbH, Frankfurt am Main, Germany, represented by
                                                                        Gert Meier, Rechtsanwalt, Berrenrather Strasse 313, Cologne.
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                        The applicant claims that the Court should:
                                                                        1. annul, on the ground of infringement of the Treaty, the
                                                                             Commission decision of 28 July 1999 on the adoption of
Action brought on 30 September 1999 by Ter Huurne’s                          transitional measures in favour of A. Dürbeck within the
Handelsmaatschappij B.V. against the Commission of the                       framework of the common organisation of the market in
                    European Communities                                     bananas;
                        (Case T-216/99)
                                                                        2. order the Commission to pay the costs.
                          (2000/C 6/44)
                   (Language of the Case: Dutch)                        Pleas in law and main arguments
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              By the contested decision, the Commission refused to award
European Communities on 30 September 1999 by Ter Huur-                  the applicant additional licences for the import of
ne’s Handelsmaatschappij B.V., of Haaksbergen (Netherlands),            25 000 tonnes of bananas from third countries because a case
represented by H.C. van der Sijs, of the Enschede Bar, with an          of hardship was not present, the applicant’s current situation
address for service in Luxembourg at the Registry of the Court          was already to be regarded as balanced and that situation
of First Instance, Kirchberg.                                           could, moreover, have been foreseen.
The applicant claims that the Court should:
                                                                        The applicant complains that Article 30 of Regulation
— annul the Commission’s decision (C(1999) 2539 final) (1)              No 404/93 (1) has been infringed.
    of 20 July 1999 concerning State aid granted by the
    Netherlands to 633 service stations in the region bordering
    Germany;                                                            According to the applicant, the hardship to be offset consists
                                                                        in its inability to import the bananas covered by the contract
— order the Commission to pay the costs.                                which it concluded in 1991 with the enterprise Consultban in
                                                                        Machala, Ecuador for the weekly marketing of 100 000 to
                                                                        150 000 crates of bananas. It has also lost licences in respect
Pleas in law and main arguments                                         of 14 312 tonnes of bananas as a result of the change in
                                                                        the reference period pursuant to Article 4(2) of Regulation
The pleas in law and main arguments are the same as in Case             No 2362/98 (2). The ensuing loss of 75 % of its import rights
T-210/99.                                                               has caused the applicant serious difficulties and has practically
                                                                        meant its elimination from the market. The loss amounts to
                                                                        DM 3 578 000, that is to say double its share capital. Under
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                        Article 30 of Regulation No 404/93 the defendant is obliged
                                                                        to compensate for the hardship which has been caused by
                                                                        Regulation No 2362/98.


title: Case C-308/08: Action brought on 10 July 2008 — Commission of the European Communities v Kingdom of Spain

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/37

         Action brought on 10 July 2008 — Commission of the European Communities v Kingdom of Spain
   (Case C-308/08)
   (2008/C 223/59)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: S. Pardo Quintillan and D. Recchia, agents)

      Defendant: Kingdom of Spain
   Form of order sought

               —

               Declare that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, interpreted by the judgments of the Court of Justice on 13 January 2005 in Case C-117/03 and on 14 September 2006 in Case C-244/05, and its obligations stemming from Article 12(4) of that directive in relation to the project for improvement of the rural path from Villamanrique de la Condesa (Seville) to El Rocio (Huelva).

               —

               order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   The Commission considers that in carrying out the project for improvement of the rural path from Villamanrique de la Condesa (Seville) to El Rocio (Huelva) without at the same time taking adequate protective measures, the Kingdom of Spain has failed to fulfil its obligations under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, interpreted by the judgments of the Court of Justice on 13 January 2005 in Case C-117/03 and on 14 September 2006 in Case C-244/05, and its obligations under Article 12(4) of that directive.

      (1)  OJ L 206, p. 7.


title: Case C-594/14: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 22 December 2014 — Simona Kornhaas v Thomas Dithmar as liquidator of the assets of Kornhaas Montage und Dienstleistung Ltd

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/7

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 22 December 2014 — Simona Kornhaas v Thomas Dithmar as liquidator of the assets of Kornhaas Montage und Dienstleistung Ltd
   (Case C-594/14)
   (2015/C 127/11)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Simona Kornhaas

      Defendant: Thomas Dithmar as liquidator of the assets of Kornhaas Montage und Dienstleistung Ltd

      Questions referred

               a)

               If a liquidator brings an action before a German court against a director of a private company limited by shares under English and Welsh law, in respect of whose assets in Germany insolvency proceedings have been opened pursuant to Article 3(1) of the Insolvency Regulation (1), the purpose of the action being to seek reimbursement of payments which the director made before the opening of the insolvency proceedings but after the company had become unable to pay its debts, is that action governed by German insolvency law within the meaning of Article 4(1) of the Insolvency Regulation?

               b)

               Does an action as referred to above infringe freedom of establishment under Articles 49 and 54 TFEU?

      (1)  Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, OJ 2000 L 160, p. 1.


title: Case C-625/13 P: Appeal brought on 29 November 2013 by Villeroy & Boch AG against the judgment of the General Court (Fourth Chamber) of 16 September 2013 in Joined Cases T-373/10, T-374/10, T-382/10 and T-402/10 Villeroy & Boch AG and Others v European Commission

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/10

         Appeal brought on 29 November 2013 by Villeroy & Boch AG against the judgment of the General Court (Fourth Chamber) of 16 September 2013 in Joined Cases T-373/10, T-374/10, T-382/10 and T-402/10 Villeroy & Boch AG and Others v European Commission
   (Case C-625/13 P)
   2014/C 39/17
   Language of the case: German

      Parties

      Appellant: Villeroy & Boch AG (represented by: M. Klusmann, Rechtsanwalt, S. Thomas)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   Whilst maintaining the submissions made at first instance, the appellant claims that the Court should:

               1.

               Set aside in its entirety the judgment of the General Court (Fourth Chamber) of 16 September 2013 in Joined Cases T-373/10, T-374/10, T-382/10 and T-402/10 in so far as it dismisses the action and concerns the applicant;

               2.

               In the alternative, annul Article 1 of Decision C(2010) 4185 final of the defendant of 23 June 2010 in the form of the judgment under appeal in so far as it concerns the applicant;

               3.

               In the alternative, reduce appropriately the amount of the fine imposed on the applicant under Article 2 of the contested decision of the defendant of 23 June 2010;

               4.

               In the further alternative, refer the case back to the General Court for a fresh decision;

               5.

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   The first to sixth grounds of appeal complain of errors of law committed by the General Court in connection with the assessment of the evidence. The General Court considered evidence in the present case concerning an alleged infringement in France to be sufficient to condemn the applicant, whereas the assessment of the same question in parallel proceedings (1) was diametrically opposite. That runs counter to the principle of the benefit of the doubt and the laws of logic because the same assessment cannot be made with contrary results which are to the applicant’s detriment.
   The second ground of appeal complains that the General Court attributed infringements of non-competitors (fittings manufacturers) in Italy to the applicant as a sanitary ceramics manufacturer although the applicant had not once attended their association meetings which were allegedly contrary to competition law. At the same time, the General Court held, with regard to the applicant’s competitors in parallel judgments (2) and on the same point, that there was no anti-competitive conduct amongst non-competitors even where they were present at the alleged infringements of the fittings manufacturers. Also in this respect there is an infringement of the principle of the benefit of the doubt and the laws of logic in the judgment, in addition to a blatantly discriminatory difference in treatment to the applicant’s detriment. Where two different assessments of the same facts are possible from the point of view of the General Court, only the less drastic alternative for the recipient of a penalty may be assumed in the law on penalties and not — as in this case — the unfavourable alternative.
   The third ground of appeal complains of the illegitimacy of a decision that refers to time-barred facts concerning events in the Netherlands, as well as the lack of congruence between the findings of the General Court in the grounds of its judgment and those in its operative part. The latter is broader than the actual findings of the General Court in the grounds of its judgment, which is a serious lack of reasoning of the judgment, whose operative part was not supported by the grounds in this respect. That infringes Article 101 TFEU and Article 81 of the Rules of Procedure of the General Court.
   The fourth ground of appeal contests, with regard to Belgium, essentially the non-consideration of facts relevant to the decision, which the General Court itself raised at the hearing.
   The fifth ground of appeal contests the findings of an infringement in Germany. It complains of mischaracterisation or distortion of the applicant’s submissions as well as the legal untenability of various findings of an allegedly unlawful exchange of information within the meaning of Article 101(1) TFEU.
   The sixth ground of appeal concerns errors of law relating to the assessments of the General Court with regard to Austria.
   The seventh ground of appeal complains that the attribution to the applicant of infringements of other legally autonomous undertakings infringes the fault principle.
   The eighth ground of appeal contests the combination in law of factually and legally unrelated conduct into an allegedly single, complex and continuous infringement (SCCI), which in the applicant’s view should not have legally taken place because of the lack of complementarity between the conduct that was assessed together. In the way it was used in this case, the concept of the SCCI infringes the principle of a right to a fair trial.
   The ninth ground of appeal complains that the lack of entitlement to impose joint and several liability for payment of the fine in the group in the absence of direct participation in the offence infringes the principle of legality and the principle of personal responsibility.
   The 10th ground of appeal complains of a legally deficient ‘light review’ of the General Court, which did not adequately carry out its task of examination and thereby undermined the Community law guarantee of legal protection.
   Finally, the 11th ground of appeal complains that the confirmed fine is, in any case, disproportionate. As incriminating findings of fact were set aside in the judgment and will be set aside owing to legal errors in reasoning, an unchanged imposition of the statutory maximum penalty of 10 % of the group turnover, which the General Court declared, cannot be proportionate and thus cannot be lawful. Where the findings of fact used to establish the infringement are to a large extent not valid, then, in view of glaring gaps in causality and evidence as well as the absence of attribution links, there cannot be any SCCI which covered six countries, three product groups and 10 years, but at most punctual, local infringements, which would far from justify the level of penalty imposed in this case. The facts under examination in this case are a long way from constituting a serious or by no means most serious case imaginable, a matter which the General Court — in gross disregard of the discretionary criteria which it had to interpret — did not consider.

      (1)  Joined Cases T-379/10 and T-381/10 Keramag Keramische Werke AG and Others and Sanitec Europe Oy v Commission (2013) ECR.

      (2)  Joined Cases T-379/10 and T-381/10 Keramag Keramische Werke AG and Others and Sanitec Europe Oy v Commission (2013) ECR, and Case T-380/10 Wabco Europe and Others v Commission (2013) ECR.


title: Case T-111/05: Action brought on 25 February 2005 by UCB SA against the Commission of the European Communities

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/32

         Action brought on 25 February 2005 by UCB SA against the Commission of the European Communities
   (Case T-111/05)
   (2005/C 115/57)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 25 February 2005 by UCB SA, Brussels, represented by Jacques Bourgeois, Jean-François Bellis and Martin Favart, lawyers.
   The applicant claims that the Court should:

               —

               annul the Commission Decision of 9 December 2004 in Case COMP/E-2/37.533 relating to a proceeding under Article 81 EC — Choline Chloride;

               —

               at the very least, annul the fine imposed on UCB by that decision, or substantially reduce the amount thereof;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The decision contested in the present case is the same as that forming the subject-matter of Case T-101/05 BASF v Commission
       (1). By that decision, the Commission found that the six companies to which the decision was addressed infringed Article 81(1) of the EC Treaty by participating in a series of agreements and concerted practices consisting of price fixing, market sharing and agreed actions against competitors (control of processors) in the choline chloride sector in the European Economic Area. That anti-competitive conduct manifested itself at two different but closely-linked areas, namely world level and European level.
   In support of its application, the applicant claims:

               —

               that the contested decision was wrong to characterise the infringement as a single and continuous infringement, when in reality there must be two separate infringements: a worldwide cartel, from October 1992 to April 1994, and an intra-Community cartel, from March 1994 to September 1998. In the applicant's submission, the Commission's argument would have the effect, if not the object, of avoiding the application of the rules on limitation;

               —

               the Commission was wrong to impose a fine on the applicant in respect of both the worldwide cartel, when that infringement was already time-barred, and the intra-Community cartel, in the light of the Commission's leniency notices. If the defendant had drawn that distinction, as it should have done, it would necessarily have arrived at the conclusion that no fine must be imposed in this case;

               —

               in the alternative, the infringement found against the applicant would have been time-barred, in the absence of the information voluntarily supplied by the applicant itself in 1999.

      (1)  Not yet published in the OJEU.


title: Case C-153/03: Reference for a preliminary ruling by the Cour de Cassation of the Grand Duchy of Luxembourg by judgment of that Court of 6 March 2003 in the case of Caisse Nationale des Prestations Familiales against Ursula SCHWARZ, née WEIDE

text:
C 146/28                EN                     Official Journal of the European Union                                           21.6.2003
4.    The Court of First Instance violated the right to effective      1.     Must Article 76 of Council Regulation (EEC) No 1408/71
      judicial protection.                                                    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
( 1) OJ C 79, 10.3.2001, p. 23.
( 2) OJ C 79, 10.3.2001, p. 24.                                               Community (1) be interpreted as applying only where a
( 3) OJ C 3, 5.1.2002, p. 39.                                                 migrant worker is entitled to family benefits under the
( 4) OJ C 3, 5.1.2002, p. 45.                                                 legislation of the State of employment and under the
                                                                              legislation of the State in which the members of his
                                                                              family are resident?
                                                                       2.     If so, may the bodies of the State of employment suspend
Reference for a preliminary ruling by the Oberlandesge-                       entitlement to family benefits where they consider that a
richt München — Zivilsenate in Augsburg — by order of                         refusal to grant family benefits in the State of residence is
that Court of 27 March 2003 in the case of Nürnberger                         incompatible with Community law?
Allgemeine Versicherungs AG against Portbridge Trans-
                     port International B.V.
                                                                       3.     If not, does Article 76 of Regulation No 1408/71 permit
                          (Case C-148/03)                                     the State of employment to apply the rule against
                                                                              aggregation of benefits where, under the law of the State
                          (2003/C 146/46)                                     of residence of the family members, the worker’s spouse
                                                                              receives or is entitled to similar family benefits?
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
München — Zivilsenate in Augsburg — (Munich Higher
Regional Court, Civil Chambers in Augsburg) of 27 March                (1 ) as amended and updated by Council Regulation (EEC) No 2001/
                                                                            83 of 2 June 1983 (OJ L 230, p. 6).
2003, received at the Court Registry on 31 March 2003, for a
preliminary ruling in the case of Nürnberger Allgemeine
Versicherungs AG against Portbridge Transport International
B.V. on the following question:
Do the provisions on jurisdiction contained in other conven-
tions take precedence over the general provisions on jurisdic-
tion in the Brussels Convention even where a defendant
domiciled in the territory of a State which is a party to the
Brussels Convention and against whom an action has been
brought before a court of another State which is a party to
that Convention fails to submit pleas as to the merits of the
case in the proceedings before that court?
                                                                       Action brought on 3 April 2003 by the Commission of
                                                                                the European Communities against Ireland
Reference for a preliminary ruling by the Cour de
Cassation of the Grand Duchy of Luxembourg by judg-
ment of that Court of 6 March 2003 in the case of                                                (Case C-154/03)
Caisse Nationale des Prestations Familiales against Ursula
                    SCHWARZ, née WEIDE
                          (Case C-153/03)                                                        (2003/C 146/48)
                          (2003/C 146/47)
Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour de Cassation
(Court of Cassation) of the Grand Duchy of Luxembourg of               An action against Ireland was brought before the Court of
6 March 2003, received at the Court Registry on 3 April 2003,          Justice of the European Communities on 3 April 2003 by the
for a preliminary ruling in the case of Caisse Nationale des           Commission of the European Communities, represented by
Prestations Familiales against Ursula SCHWARZ, née WEIDE               Karen Banks, acting as agent, with an address for service in
on the following questions:                                            Luxembourg.


title: Case T-218/05: Order of the Court of First Instance of  23 November 2005  — Bustec Ireland v OHIM (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/34

         Order of the Court of First Instance of 23 November 2005 — Bustec Ireland v OHIM
   (Case T-218/05) (1)

   (Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)
   (2006/C 48/66)
   Language of the case: Spanish
   Parties

      Applicant: Bustec Ireland (Shanon, County Clare, Ireland) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Mustek, S.L. (Barcelona, Spain)
   Action
   brought against the decision of the Second Board of Appeal of OHIM of 22 March 2005 (Case R 1125/2004-2) relating to opposition proceedings brought against the registration of the Community trade mark BUSTEC
   Operative part of the judgment
   The Court:

               1.

               Declares it no longer necessary to give judgment on the action;

               2.

               Orders each party to bear its own costs.

      (1)  OJ C 182 of 23.7.2005.


title: Case C-545/12: Order of the President of the Court of 22 May 2013 — European Commission v Republic of Cyprus

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/59

         Order of the President of the Court of 22 May 2013 — European Commission v Republic of Cyprus
   (Case C-545/12) (1)

   2013/C 225/127
   Language of the case: Greek
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 32, 2.2.2013.


title: Case C-521/11: Reference for a preliminary ruling from the Oberster Gerichtshof (Supreme Court) (Austria) lodged on 12 October 2011 — Amazon.com International Sales Inc. and Others v Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft m.b.H.

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/27

      Reference for a preliminary ruling from the Oberster Gerichtshof (Supreme Court) (Austria) lodged on 12 October 2011 — Amazon.com International Sales Inc. and Others v Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft m.b.H.
      (Case C-521/11)
      (2012/C 25/46)
      Language of the case: German

         Referring court

      Oberster Gerichtshof (Supreme Court)

         Parties to the main proceedings

         Applicants: Amazon.com International Sales Inc., Amazon EU S.à.r.l., Amazon.de GmbH, Amazon.com GmbH in liquidation, Amazon Logistik GmbH

         Defendant: Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft m.b.H.

         Questions referred

                  1.

                  Can a legislative scheme be regarded as establishing ‘fair compensation’ for the purposes of Article 5(2)(b) of Directive 2001/29/EC, where

                              (a)

                              the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of the rightholders,

                              (b)

                              this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and

                              (c)

                              the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remuneration?

                  2.

                  If Question 1 is answered in the negative:

                              2.1.

                              Does a scheme establish ‘fair compensation’ for the purposes of Article 5(2)(b) of Directive 2001/29/EC if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes?

                              2.2.

                              If Question 2.1 is answered in the affirmative: Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes?

                  3.

                  If Question 1 or 2.1 is answered in the affirmative:
                  Does it follow from Article 5 of Directive 2001/29/EC or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions?

                  4.

                  If Question 1 or 2.1 is answered in the affirmative:
                  Does Article 5(2)(b) of Directive 2001/29/EC or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State — possibly on a basis not in conformity with EU law — equitable remuneration for putting the media on the market has already been paid?


title: Case C-508/14: Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 13 November 2014  — Český telekomunikační úřad v T-Mobile Czech Republic a.s. and Vodafone Czech Republic a.s.

text:
               16.2.2015

               EN

               Official Journal of the European Union

               C 56/4

         Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 13 November 2014 — Český telekomunikační úřad v T-Mobile Czech Republic a.s. and Vodafone Czech Republic a.s.
   (Case C-508/14)
   (2015/C 056/05)
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Appellant: Český telekomunikační úřad

      Respondents: T-Mobile Czech Republic a.s., Vodafone Czech Republic a.s.

      Other parties to the proceedings: O2 Czech Republic a.s. (known as Telefónica Czech Republic, a.s. until 20 June 2014), UPC Česká republika, s.r.o.

      Questions referred

               1)

               Must Articles 12 and 13 of Directive 2002/22/EC of the European Parliament and of the Council (1) of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (‘the Directive’) be interpreted as meaning that the concept laid down there of the ‘net cost’ of providing that service precludes a ‘reasonable profit’ of the provider from being included in the amount of the ascertained net cost of that service?

               2)

               If the answer to Question 1 is in the affirmative, do those provisions of the Directive (Articles 12 and 13) have direct effect?

               3)

               If Articles 12 and 13 of the Directive have direct effect, may that effect be relied on against a commercial company in which a Member State holds (controls) 51 % of the shares — in this case, O2 Czech Republic a.s. (is it a ‘State entity’) or not?

               4)

               If the answers to Questions 1 to 3 are in the affirmative, may the Directive be applied also to relations which came into being in the period before the accession of the Czech Republic to the European Union (from 1 January to 30 April 2004)?

      (1)  OJ 2002 L 108, p. 51.


title: Judgment of the Court (First Chamber) of 11 September 2003 in Case C-155/01 (Reference for a preliminary ruling from the Verwaltungsgerichtshof): Cookies World Vertriebsgesellschaft mbH iL v Finanzlandesdirektion für Tirol (Sixth VAT Directive — Motor vehicle made available under a leasing contract — Taxable transactions — Own consumption — Article 17(6) and (7) — Exclusions provided for under national law at the date of entry into force of the directive)

text:
C 264/8                   EN                         Official Journal of the European Union                                                1.11.2003
2.     If the national court finds that the national provision laying                          JUDGMENT OF THE COURT
       down the time-limit is not compatible with the requirements of
       Community law and that no compatible interpretation of that
       provision is possible, it must refuse to apply the provision in                                  (Fifth Chamber)
       question.
                                                                                of 18 September 2003
(1) OJ C 161 of 2.6.2001.
                                                                             in Case C-168/01 (Reference for a preliminary ruling from
                                                                             the Hoge Raad der Nederlanden): Bosal Holding BV v
                                                                                Staatssecretaris van Financiën (1)
                   JUDGMENT OF THE COURT
                                                                             (Freedom of establishment — Taxation — Taxes on company
                                                                             profits — Limitation of the deductibility in one Member
                            (First Chamber)
                                                                             State of costs connected with holdings of a parent company
                                                                             in its subsidiaries established in other Member States —
                        of 11 September 2003
                                                                                Coherence of the tax system)
in Case C-155/01 (Reference for a preliminary ruling from
the Verwaltungsgerichtshof): Cookies World Vertriebsge-                                                 (2003/C 264/13)
   sellschaft mbH iL v Finanzlandesdirektion für Tirol (1)
(Sixth VAT Directive — Motor vehicle made available                                               (Language of the case: Dutch)
under a leasing contract — Taxable transactions — Own
consumption — Article 17(6) and (7) — Exclusions provided
                                                                             (Provisional translation; the definitive translation will be published
for under national law at the date of entry into force of the
                                                                                in the European Court Reports)
                                directive)
                           (2003/C 264/12)
                    (Language of the case: German)                           In Case C-168/01: Reference to the Court under Article 234
                                                                             EC by the Hoge Raad der Nederlanden (Netherlands) for a
(Provisional translation; the definitive translation will be published       preliminary ruling in the proceedings pending before that
                     in the European Court Reports)                          court between Bosal Holding BV and Staatssecretaris van
                                                                             Financiën, on the interpretation of Article 52 of the EC Treaty
                                                                             (now, after amendment, Article 43 EC), of Article 58 of the EC
In Case C-155/01: Reference to the Court under Article 234                   Treaty (now Article 48 EC), and of Council Directive 90/435/
EC by the Verwaltungsgerichtshof (Austria) for a preliminary                 EEC of 23 July 1990 on the common system of taxation
ruling in the proceedings pending before that court between                  applicable in the case of parent companies and subsidiaries of
Cookies World Vertriebsgesellschaft mbH iL and Finanzlandes-                 different Member States (OJ 1990 L 225, p. 6), the Court
direktion für Tirol, on the interpretation, in particular, of                (Fifth Chamber), composed of: M. Wathelet, President of the
Articles 5 and 6 of the Sixth Council Directive 77/388/EEC of                Chamber, C.W.A. Timmermans, D.A.O. Edward (Rapporteur),
17 May 1977 on the harmonisation of the laws of the Member                   P. Jann and S. von Bahr, Judges; S. Alber, Advocate General;
States relating to turnover taxes — Common system of value                   D. Louterman-Hubeau, Head of Division, for the Registrar, has
added tax: uniform basis of assessment (OJ 1977 L 145, p. 1),                given a judgment on 18 September 2003, in which it has
the Court (First Chamber), composed of: M. Wathelet, President               ruled:
of the Chamber, P. Jann and A. Rosas (Rapporteur), Judges;
L.A. Geelhoed, Advocate General; H.A. Rühl, Principal Admin-                 Council Directive 90/435/EEC of 23 July 1990 on the common
istrator, for the Registrar, has given a judgment on 11 Septem-              system of taxation applicable in the case of parent companies and
ber 2003, in which it has ruled:                                             subsidiaries of different Member States, interpreted in the light of
                                                                             Article 52 of the EC Treaty (now, after amendment, Article 43 EC)
The provisions of the Sixth Council Directive 77/388/EEC of                  precludes a national provision which, when determining the tax on
17 May 1977 on the harmonisation of the laws of the Member                   the profits of a parent company established in one Member State,
States relating to turnover taxes — Common system of value added             makes the deductibility of costs in connection with that company’s
tax: uniform basis of assessment preclude a measure of a Member              holding in the capital of a subsidiary established in another Member
State which provides that payment for services supplied in other             State subject to the condition that such costs be indirectly instrumental
Member States to a person in the first Member State is subject to            in making profits which are taxable in the Member State where the
VAT whereas, had the services in question been supplied within the           parent company is established.
territory of the country, the person to whom they were supplied would
not have been entitled to deduction of input tax.
                                                                             (1) OJ C 200 of 14.7.2001.
(1) OJ C 200 of 14.7.2001.


title: Case T-270/09: Judgment of the General Court of 30 September 2010 — PVS v OHIM — MeDiTA Medizinische Kurierdienst (medidata) (Community trade mark — Opposition proceedings — Application for Community figurative mark medidata — Earlier national word mark MeDiTA — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the services — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/31

         Judgment of the General Court of 30 September 2010 — PVS v OHIM — MeDiTA Medizinische Kurierdienst (medidata)
   (Case T-270/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark medidata - Earlier national word mark MeDiTA - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Similarity of the services - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2010/C 317/56
   Language of the case: German

      Parties

      Applicant: PVS — Privatärztliche Verrechnungsstelle Rhein-Ruhr GmbH (Mülheim an der Ruhr, Germany) (represented by: F. Lindberg, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: MeDiTA Medizinische Kurierdienst- und Handelsgesellschaft mbH (Düsseldorf, Germany) (represented by: T. Schulte-Beckmann, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 14 May 2009 (Case R 1724/2007-4) relating to opposition proceedings between MeDiTA Medizinische Kurierdienst- und Handelsgesellschaft mbH and PVS — Privatärztliche Verrechnungsstelle Rhein-Ruhr GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Privatärztliche Verrechnungsstelle Rhein-Ruhr GmbH to pay the costs.

      (1)  OJ C 220 of 12.9.2009.