title: Judgment of the Court of 13 December 2001 in Case C-340/00 P: Commission of the European Communities v Michael Cwik (Appeal — Officials — Article 17, second paragraph, of the Staff Regulations — Freedom of expression — Limits — Statement of reasons)

text:
16.2.2002                EN                     Official Journal of the European Communities                                             C 44/5
composed of: S. von Bahr, President of the Fourth Chamber,                 l’académie de Reims, intervener: Syndicat général de l’Éduca-
acting for the President of the Fifth Chamber, D.A.O. Edward,              tion nationale et de la Recherche publique CFDT de la Marne
A. La Pergola, L. Sevón (Rapporteur) and C.W.A. Timmermans,               (SGEN CFDT 51), on the interpretation of Article 119 of the
Judges, Advocate General: C. Stix-Hackl, Registrar: R. Grass,              EC Treaty (Articles 117 to 120 of the EC Treaty have been
has given a judgment on 13 December 2001, in which it has                  replaced by Articles 136 EC to 143 EC), and Council Directive
ruled:                                                                     79/7/EEC of 19 December 1978 on the progressive implemen-
                                                                           tation of the principle of equal treatment for men and women
                                                                           in matters of social security (OJ 1979 L 6, p. 24), the Court
Article 5 of Council Regulation (EEC) No 3508/92 of 27 November            (Second Chamber), composed of: N. Colneric, President of the
1992 establishing an integrated administration and control system          Chamber, R. Schintgen and V. Skouris (Rapporteur), Judges,
for certain Community aid schemes, read together with Council              Advocate General: S. Alber, Registrar: R. Grass, has given a
Directive 92/102/EEC of 27 November 1992 on the identification             judgment on 13 December 2001, in which it has ruled:
and registration of animals and Articles 6(5) and 13 of Commission
Regulation (EEC) No 3887/92 of 23 December 1992 laying down
detailed rules for applying the integrated administration and control      Pensions provided under a scheme such as the French retirement
system for certain Community aid schemes, as amended by Com-               scheme for civil servants fall within the scope of Article 119 of the
mission Regulation (EC) No 1648/95 of 6 July 1995, must be                 EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced
interpreted as meaning that entitlement to a compensatory allowance        by Articles 136 EC to 143 EC).
must be refused, except in cases of force majeure, solely because of the
absence of any entries in the register of animals kept by the farmer.
                                                                           The principle of equal pay for men and women enshrined in
                                                                           Article 119 of the Treaty is infringed by a provision of national law
(1) OJ C 163, 10.6.2000.                                                   such as Article L.24-I-3o(b) of the Civil and Military Retirement
                                                                           Pensions Code which, in providing that only female civil servants
                                                                           whose husbands suffer from a disability or incurable illness making
                                                                           it impossible for them to undertake any form of employment are
                                                                           entitled to a retirement pension with immediate effect, deprives male
                                                                           civil servants in the same situation of that right.
                  JUDGMENT OF THE COURT                                    (1) OJ C 211, 22.7.2000.
                         (Second Chamber)
                       of 13 December 2001
in Case C-206/00 (Reference for a preliminary ruling from
the Tribunal Administratif de Châlons-en-Champagne):                                          JUDGMENT OF THE COURT
    Henri Mouflin v Recteur de l’académie de Reims (1)
                                                                                of 13 December 2001
(Reference for a preliminary ruling — Social policy — Equal
treatment for men and women — Applicability of Article 119                 in Case C-340/00 P: Commission of the European Com-
of the EC Treaty (Articles 117 to 120 of the EC Treaty have                                    munities v Michael Cwik (1)
been replaced by Articles 136 EC to 143 EC) or Directive
79/7/EEC — French civil and military retirement pension
scheme — Entitlement to a retirement pension with immedi-                  (Appeal — Officials — Article 17, second paragraph, of the
                     ate effect for women only)                            Staff Regulations — Freedom of expression — Limits —
                                                                                Statement of reasons)
                           (2002/C 44/08)
                                                                                (2002/C 44/09)
                     (Language of the case: French)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                         (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-206/00: Reference to the Court under Article 234
EC by the Tribunal Aministratif de Châlons-en-Champagne                    In Case C-340/00 P: Commission of the European Communi-
(France) for a preliminary ruling in the proceedings pending               ties (Agent: J. Currall, assisted by D. Waelbroeck), appeal
before that court between Henri Mouflin and Recteur de                     against the judgment of the Court of First Instance of the
 ---pagebreak--- C 44/6                 EN                     Official Journal of the European Communities                                          16.2.2002
European Communities (Fourth Chamber) of 14 July 2000 in                 1.    Declares that, by failing to adopt the laws, regulations and
Case T-82/99 Cwik v Commission [2000] ECR-SC I-A-155                           administrative provisions necessary to comply with Council
and II-713, seeking to have that judgment set aside, the other                 Directive 96/48/EC of 23 July 1996 on the interoperability of
party to the proceedings being: Michael Cwik, an official of                   the trans-European high-speed rail system, Ireland has failed to
the Commission of the European Communities, residing in                        fulfil its obligations under that directive.
Brussels (Belgium), represented by N. Lhoëst, avocat — the
Court, composed of: G.C. Rodrı́guez Iglesias, President, P. Jann,        2.    Orders Ireland to pay the costs.
F. Macken, N. Colneric and S. von Bahr (Presidents of
Chambers), A. La Pergola, J.-P. Puissochet, L. Sevón, M. Wathe-
let (Rapporteur), R. Schintgen and V. Skouris, Judges; Advocate          (1) OJ C 355, 9.12.2000.
General: D. Ruiz-Jarabo Colomer, L. Hewlett, Administrator,
for the Registrar, has given a judgment on 13 December 2001,
in which it:
1.    Dismisses the appeal;
                                                                                JUDGMENT OF THE COURT
2.    Orders the Commission of the European Communities to pay
      the costs.
                                                                                (Third Chamber)
(1) OJ C 335, 25.11.2000.                                                                         of 13 December 2001
                                                                         in Case C-446/00 P: Pascual Juan Cubero Vermurie v
                                                                                Commission of the European Communities (1)
                                                                                (Appeal — Officials — Promotions — Mobility)
                 JUDGMENT OF THE COURT                                                                (2002/C 44/11)
                        (First Chamber)                                                         (Language of the case: French)
                                                                         (Provisional translation; the definitive translation will be published
                     of 13 December 2001
                                                                                in the European Court Reports)
in Case C-372/00: Commission of the European Communi-
                         ties v Ireland (1)
                                                                         In Case C-446/00: Pascual Juan Cubero Vermurie, an official
                                                                         of the Commission of the European Communities, residing in
(Failure by a Member State to fulfil its obligations —                   Brussels (Belgium), represented by E. Boigelot, avocat —
Directive 96/48/EC — Interoperability of the trans-Euro-                 APPEAL against the judgment of the Court of First Instance of
                  pean high-speed rail system)                           the European Communities (Fifth Chamber) of 3 October
                                                                         2000 in Case T-187/98 Cubero Vermurie v Commission
                                                                         [2000] ECR I-A-195 and II-885, seeking to have that judgment
                         (2002/C 44/10)                                  set aside and the same form of order as that sought by the
                                                                         appellant at first instance, the other party to the proceedings
                   (Language of the case: English)                       being: Commission of the European Communities (Agent:
                                                                         C. Berardis-Kayser, assisted by B. Wägenbaur) — the Court
                                                                         (Third Chamber), composed of: C. Gulmann, acting for the
                                                                         President of the Third Chamber, J.-P. Puissochet and J.N. Cunha
                                                                         Rodrigues (Rapporteur), Judges; C. Stix-Hackl, Advocate Gen-
In Case C-372/00: Commission of the European Communities
                                                                         eral; L. Hewlett, Administrator, for the Registrar, has given a
(Agent: M. Wolfcarius) v Ireland (Agent: D.J. O’Hagan) —
                                                                         judgment on 13 December 2001, in which it:
application for a declaration that, by failing to adopt the laws,
regulations and administrative provisions necessary to comply
with Council Directive 96/48/EC of 23 July 1996 on the                   1.    Dismisses the appeal;
interoperability of the trans-European high-speed rail system
(OJ 1996 L 235, p. 6), Ireland has failed to fulfil its obligations      2.    Orders Mr Cubero Vermurie to pay the costs.
under that directive — the Court (First Chamber), composed
of: P. Jann, President of the Chamber, L. Sevón (Rapporteur)
and M. Wathelet, Judges; L.A. Geelhoed, Advocate General;                (1) OJ C 45, 10.2.2001.
R. Grass, Registrar, has given a judgment on 13 December
2001, in which it:


title: Action brought on 10 May 1995 by N. Corman SA against the Commission of the European Communities (Case T-117/95)

text:
12 . 8 . 95            EN                   Official Journal of the European Communities                                No C 208/31
Action brought on 10 May 1995 by N. Corman SA against                  standardized butter cannot continue without Community
       the Commission of the European Communities                      aid, since its production cost is too high to enable it to find
                         ( Case T-l 17/95 )                            any outlets.
                           ( 95 /C 208/65                              The applicant considers that the defendant institution has
                                                                       breached the principles of legal certainty and the protection
               (Language of the case: French)                          of legitimate expectations, in that it has prevented it, with
                                                                       immediate effect and without any transitional measures,
                                                                       from being able to continue to enjoy the benefit of the
An action against the Commission of the European                       Community rules .
Communities was brought before the Court of First
Instance of the European Communities on 10 May 1995 by                 It also maintains that the contested Regulation contravenes
N. Corman SA, established at Goe-Limbourg ( Belgium ),                 the principle of non-discrimination, in that it does not
represented by Lucette Defalque, of the Brussels Bar, with             impose the same restrictive conditions on the granting of aid
an address for service in Luxembourg at the offices of                 for butter for the homeless, which is eligible for Community
Fiduciaire Myson Sari , 1 Rue Glesener .                               aid regardless of the raw materials used . The applicant
                                                                       contends that that difference in treatment between butter
                                                                       for the homeless and butter for use in pastry products and
The applicant claims that the Court should :                           ice-creams, which did not previously exist, is not objectively
                                                                       justified .
— annul Article 1 (4 ) of Regulation ( EC ) No 455/95 ,
                                                                       Lastly, the applicant asserts that the contested rules
                                                                       disregard both the general Community interest and the
— order the defendant to pay the costs .
                                                                       principle of proportionality, inasmuch as the new restriction
                                                                       on eligibility for Community aid does not accord with the
Pleas in law and main arguments adduced in support:                    objective pursued by those rules .
The applicant, a public limited liability company
incorporated under Belgian law and the only manufacturer
in the Union engaged mainly and semi-exclusively in the
production of anhydrous milk fat and 'technical butter',               Action brought on 11 May 1995 by Miguel Anacoreta
contests Article 1 ( 4 ) of Commission Regulation No 455/95            Correia against the Commission of the European
amending Regulations ( EEC ) No 1547/87 and ( EEC ) No                                           Communities
1589/87 as regards the buying-in of butter by the
                                                                                ( Case T-118/95 )
intervention agencies and Regulations ( EEC ) No 2191 /81
and ( EEC ) No 570/88 as regards the grant of aid for the                                       ( 95/C 208/66 )
purchase and sale of butter at a reduced price to certain
categories of consumers and industries . The objectives of                             (Language of the case: French)
those rules include, in particular, the sale of butter at
reduced prices and the granting of aid for cream, butter and           An action against the Commission of the European
concentrated butter for use in the manufacture of pastry               Communities was brought before the Court of First
products, ice-cream and other food products .                          Instance of the European Communities on 11 May 1995 by
                                                                       Miguel Anacoreta Correia , resident in Brussels, represented
The conditions for obtaining aid laid down by the new rules            by Georges Vandersanden, of the Brussels Bar, with an
are radically different from the old rules, since, instead of          address for service in Luxembourg at the office of Fiduciaire
having to be classed simply as 'inspection-marked butter',             Myson Sari , 1 Rue Glesener .
the butter now has to be 'produced directly and exclusively
from pasteurized cream ' and must satisfy, 'in the                     The applicant claims that the Court should :
manufacturing Member State, the conditions laid down in
Article 6 ( 2 ) of Regulation ( EEC ) No 454/95 and the                — annul the decision of 24 June 1994 rejecting the
requirements of the national quality class listed in Annex II               applicant's candidature for the post ( COM/OOl /94 ) of
to Regulation ( EC ) No 454/95 and the packaging of which is                Deputy Director-General in the Directorate-General for
marked accordingly'.                                                        External Political Relations and annul the appointment
                                                                            to that post of the candidate selected ,
The applicant states that it has discovered a process for
manufacturing butter with a fat content of 82 % , making it            — order the Commission to pay the costs .
possible to obtain a butter which is standardized and stable
and much sought after by customers of the manufacturers of             Pleas in law and main arguments adduced in support:
pastry products; it points out that those standardized
products cannot under any circumstances be manufactured                The applicant states that he was a candidate for the post of
solely from fresh cream. The applicant also states that                Deputy Director-General in the Directorate-General for
the commercial and technical realization of the discovery              External Political Relations ( DG l.A ), which was published
has required considerable investment in research                       on 6 January 1994 ( COM/OOl /94 ). On 24 June 1994 he was
and development, such that the manufacture of such                     told that his candidature for the post in question had not


title: Case C-271/00: Reference for a preliminary ruling from the Hof van Beroep, sitting in Antwerp, by judgment of that court of 27 June 2000 in the case of Gemeente Steenbergen (NL) against L. Baten

text:
C 259/8                EN                     Official Journal of the European Communities                                         9.9.2000
May a Member State treat the use for private residential                 Action brought on 6 July 2000 by the Commission of the
purposes of a dwelling in business premises forming as a                    European Communities against the Hellenic Republic
whole part of the assets of the business — which is equated to
a supply of services for consideration under Article 6(2)(a) of
Directive 77/388/EEC (1) — as tax-exempt (in accordance with                                      (Case C-272/00)
Article 13B(b) of that directive, but without the possibility of
waiving the exemption), with the result that deduction under
Article 17(2)(a) of the directive of the value added tax which                                    (2000/C 259/14)
arose in connection with the construction of the premises is
precluded to that extent?
                                                                         An action against the Hellenic Republic was brought before
( 1) OJ L 145, 13.6.1977, p. 1.                                          the Court of Justice of the European Communities on 6 July
                                                                         2000 by the Commission of the European Communities,
                                                                         represented by Maria Patakia, of its Legal Service, and Frank
                                                                         Benyon, Legal Adviser in the same Service, with an address for
                                                                         service in Luxembourg at the office of Carlos Gómez de la
                                                                         Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
                                                                         The Commission claims that the Court should:
Reference for a preliminary ruling from the Hof van
Beroep, sitting in Antwerp, by judgment of that court of
27 June 2000 in the case of Gemeente Steenbergen (NL)                    1.    declare that, since Article 40 of Law No 2065/92 provides
                         against L. Baten                                      that flights from Greece of a distance in excess of 750 km
                                                                               are subject to a higher tax than flights of a distance below
                         (Case C-271/00)                                       750 km, the Hellenic Republic has failed to fulfil its
                                                                               obligations under Article 49 EC (ex Article 59 of the
                                                                               Treaty) and Article 3(1) of Council Regulation (EEC)
                         (2000/C 259/13)                                       No 2408/92 (1);
Reference has been made to the Court of Justice of the
European Communities by judgment of the Hof van Beroep                   2.    order the Hellenic Republic to pay the costs.
(Court of Appeal), sitting in Antwerp, of 27 June 2000,
received at the Court Registry on 5 July 2000, for a preliminary
ruling in the case of Gemeente Steenbergen (NL) against
L. Baten on the following questions:                                     Pleas in law and main arguments
1.    Is an action concerning a claim for recovery under the
      Netherlands Algemene Bijstandswet (General Law on
      Social Assistance) brought by a municipality entitled to           The Greek legislation is inconsistent with the freedom to
      seek recovery against a person liable to pay maintenance,          provide services laid down in the EC Treaty, with Council
      as referred to in Article 93 of the Algemene Bijstandswet,         Regulation No 2408/92 on access for Community air carriers
      a civil matter within the meaning of Article 1, first              to intra-Community air routes and with the exercise of the
      paragraph, of the Convention of 27 September 1968 on               right to move freely within the territory of the Member States
      Jurisdiction and the Enforcement of Judgments in Civil             which is granted to the citizens of the European Union under
      and Commercial Matters, and can a judicial decision                Article 8a of the Treaty (now Article 18 EC). It is stated in the
      delivered in such an action come for that reason within            letter of formal notice that the freedom to provide services
      the scope of that Convention?                                      enacted in Article 3(1) of Regulation No 2408/92 must be
                                                                         interpreted in direct conjunction with the general principles
2.    Is an action concerning a claim for recovery under                 concerning the freedom to provide services and, finally, it is
      the Netherlands Algemene Bijstandswet brought by a                 stated that the regulation is infringed where air routes between
      municipality entitled to seek recovery against a person            Member States are accorded less favourable treatment, particu-
      liable to pay maintenance, as referred to in Article 93 of         larly as regards their taxation, than comparable air routes in
      the Algemene Bijstandswet, a case relating to social               the same Member State.
      security within the meaning of Article 1, second para-
      graph, point 1, of the Convention of 27 September 1968
      on Jurisdiction and the Enforcement of Judgments in Civil
      and Commercial Matters, and does a judicial decision               (1) OJ L 240, 24.8.1992, p. 8.
      delivered in such an action fall for that reason outside the
      scope of that Convention?


title: Order of the President of the Court of First Instance of 20 July 2000 in Case T-169/00 R: Esedra SPRL v Commission of the European Communities (Public contracts for the supply of services — Community tendering procedure — Proceedings for interim measures — Suspension of operation — Urgency — None)

text:
25.11.2000              EN                     Official Journal of the European Communities                                           C 335/43
service in Luxembourg at the Chambers of Arendt and                       1.    The operation of Regulation No 465/2000 of 29 February
Medernach, 8-10, rue Mathias Hardt, against Commission of                       2000 introducing safeguard measures for imports from the
the European Communities (Agents: M.-J. Jonczy and                              overseas countries and territories of sugar sector products with
M. E. Paasivirta) — application for suspension of the operation                 EC/OCT cumulation of origin is suspended as regards the
of, first, the Commission’s decision to terminate the contract                  applicant;
with the applicant relating to the DIONYSOS project in so far
as it requires the applicant to repay all of the sums already             2.    The quantity of sugar sector products with EC/OCT cumulation
paid over and, secondly, of the debit note sent pursuant to the                 of origin which may be imported by the applicant into the
decision in so far as necessary — the President of the Court of                 Community up to 30 September 2000 is 400 tonnes;
First Instance made an order on 20 July 2000, the operative
part of which is as follows:                                              3.    The Commission shall determine the procedure to which imports
                                                                                of those products are to be subject;
1.    The application for interim measures is dismissed.
                                                                          4.    Costs are reserved.
2.    The costs are reserved.
                                                                          ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
                                                                                of 20 July 2000
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                              in Case T-169/00 R: Esedra SPRL v Commission of the
                              INSTANCE                                                         European Communities
                         of 8 August 2000                                 (Public contracts for the supply of services — Community
                                                                          tendering procedure — Proceedings for interim measures —
                                                                                Suspension of operation — Urgency — None)
in Case T-159/00, Suproco NV against the Commission of
                  the European Communities                                                          (2000/C 335/82)
(Application for interim measures — Safeguard measure —                                       (Language of the case: French)
 Sugar sector products with EC/OCT cumulation of origin)
                                                                          In Case T-169/00 R: Esedra SPRL, established in Brussels,
                                                                          represented by G. Vandersanden, E. Gillet and L. Levi, of the
                          (2000/C 335/81)                                 Brussels Bar, with an address for service in Luxembourg at the
                                                                          office of Société de Gestion Fiduciaire SARL, 2-4 Rue Beck, v
                                                                          Commission of the European Communities (Agents: X. Lewis
                                                                          and L. Parpala) — application, first, for suspension of operation
                    (Language of the case: Dutch)                         of the Commission’s decisions not to award to the applicant the
                                                                          contract forming the subject-matter of Notice No 99/S 132-
                                                                          97515/FR for services relating to the management of a day
In Case T-159/00 R, Suproco NV, established in Curaçao,                   nursery and to award that contract to another undertaking
Netherlands Antilles, represented by R.J. van Agteren and                 and, second, for a mandatory injunction requiring the Com-
M.M. Slotboom, of the Rotterdam Bar, with an address for                  mission to take the necessary steps in order to suspend
service in Luxembourg at the Chambers of M. Loesch, 11 Rue                implementation of that contract or of any contract concluded
Goethe, v Commission of the European Communities (Agents:                 in pursuance of that decision — the President of the Court of
T. van Rijn and C. Van der Hauwaert) — application for                    First Instance made an order on 20 July 2000, the operative
suspension of the operation of Regulation No 465/2000 of                  part of which is as follows:
29 February 2000 introducing safeguard measures for imports
from the overseas countries and territories of sugar sector               1.    The application for interim measures is dismissed.
products with EC/OCT cumulation of origin (OJ 2000 L 56,
p. 39) or any other form of interim measure capable of                    2.    The costs are reserved.
protecting the applicant’s interests — the President of the
Court of First Instance made an order on 8 August 2000, the
operative part of which is as follows:


C 102/16                EN                     Official Journal of the European Communities                                     8.4.2000
The Applicant claims that the Court should:                                      Removal from the register of Case C-399/95 (1)
1) declare that by failing to notify the laws, regulations                                       (2000/C 102/29)
     or administrative provisions necessary to comply with
     Commission Directive 98/21/EC of 8 April 1998 (1)                    By order of 13 December 1999 the President of the Court of
     amending Council Directive 93/16/EEC (2) to facilitate the           Justice of the European Communities has ordered the removal
     free movement of doctors and the mutual recoginition of              from the register of Case C-399/95: Federal Republic of
     their diplomas, certificates and other evidence of formal            Germany v Commission of the European Communities.
     qualifications, or by failing to adopt the measures necessary
     to comply with it, Ireland has failed to fulfil its obligations
     under that Directive                                                 (1) OJ C 77 of 16.3.1996.
2) order Ireland to pay the costs of these proceedings.
Pleas in law and main arguments
                                                                                Removal from the register of Case C-195/96 (1)
Article 249 EC (ex Article 189 of the EC Treaty), under which
a directive shall be binding as to the result to be achieved,
upon each Member State, carries by implication an obligation                                     (2000/C 102/30)
on the Member States to observe the period for compliance
laid down in the directive. That period expired on 31 December            By order of 13 December 1999 the President of the Court of
1998 without Ireland having enacted the provisions necessary              Justice of the European Communities has ordered the removal
to comply with the directive referred to in the conclusions of            from the register of Case C-195/96: Federal Republic of
the Commission.                                                           Germany v Commission of the European Communities.
                                                                          (1) OJ C 247 of 24.8.1996.
(1) OJ L 119 of 22.4.1998, p. 15.
(2) OJ L 165 of 7.7.1993, p. 1.
                                                                                Removal from the register of Case C-333/98 (1)
      Removal from the register of Case C-255/92 P (1)                                           (2000/C 102/31)
                         (2000/C 102/27)                                  By order of 17 January 2000 the President of the Court of
                                                                          Justice of the European Communities has ordered the removal
By order of 9 December 1999 the President of the Court of                 from the register of Case C-333/98 (reference for a preliminary
Justice of the European Communities has ordered the removal               ruling from the Commissione dei v i Provvedimenti dell’Ufficio
from the register of Case C-255/92 P: BASF AG v Commission                Italiano Brevetti e Marchi): Merck & Co Inc. v Ufficio Italiano
of the European Communities.                                              Brevetti e Marchi.
(1) OJ C 187 of 24.7.1992.                                                (1) OJ C 327, 24.10.1998.
                                                                                Removal from the register of Case C-291/99 (1)
       Removal from the register of Case C-129/99 (1)
                                                                                (2000/C 102/32)
                         (2000/C 102/28)
                                                                          By order of 18 January 2000 the President of the Court of
By order of 10 December 1999 the President of the Court of                Justice of the European Communities has ordered the removal
Justice of the European Communities has ordered the removal               from the register of Case C-291/99 (reference for a preliminary
from the register of Case C-129/99: Federal Republic of                   ruling from the Tribunale di Trieste, Prima Sezione Civile):
Germany v Commission of the European Communities.                         Crossbow Srl v Ministero delle Finanze.
(1) OJ C 188 of 3.7.1999.                                                 (1) OJ C 314, 30.10.1999.


title: Case T-242/01: Action brought on 3 October 2001 by Rica Foods (Free Zone) N.V. against the Commission of the European Communities

text:
C 3/34                 EN                     Official Journal of the European Communities                                        5.1.2002
Trade mark or sign             Registered German trade mark              by the authorities in the USA had ended inter alia with the
asserted by way of oppo-       ‘TUFFTRIDE’ in classes 1, 7 and 11        imposition of a fine on the applicant.
sition in the opposition
proceedings:
                                                                         In response to the statement of objections the applicant stated
Decision of the Oppo-          rejection of the Opposition               to the defendant that it expressly did not contest the facts set
sition Division:                                                         out by the defendant. At the same time it submitted that the
                                                                         fine imposed in the USA should be credited when the
Decision of the Board of       rejection of the Appeal by the            defendant calculated the fines or at least be appropriately taken
Appeal:                        applicant                                 into account.
Grounds of claim:              Articles 8(1)(b) and 7(1)(f) of
                                                                         In the contested decision the defendant alleged that the
                               Regulation (EC) no. 40/94 (1)
                                                                         applicant had participated in a cartel and, when it calculated
                                                                         the fine, assumed that there was a world market in graphite
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          electrodes. A fine of Euro 80,2 million was imposed on the
    Community trade mark (OJ L 11, p. 1).                                applicant.
                                                                         The applicant contests the decision has a whole in law. It
                                                                         submits that the defendant did not take into account the
                                                                         fact that the applicant had already been penalised in other
                                                                         jurisdictions for the same act. In particular, it gave no credit at
                                                                         all for the fines already imposed in other States and did not
Action brought on 2 October 2001 by SGL Carbon AG                        take account of the applicability of the rule against double
  against the Commission of the European Communities                     punishment (‘ne bis im idem’). As a separate matter, the
                                                                         defendant infringed Article 253 EC and Article 15(2) of
                                                                         Regulation No 17/62 because it wrongly calculated the fine in
                         (Case T-239/01)                                 the light of the application of the guidelines on the method of
                                                                         setting fines (1) and the notice on the non-imposition or
                           (2002/C 3/59)                                 reduction of fines in cartel cases (2). It infringed central
                                                                         principles of equal treatment and proportionality and commit-
                                                                         ted errors of law and of assessment to the detriment of the
                   (Language of the case: German)                        applicant at each stage of calculating the fine. Moreover, the
                                                                         defendant misassessed inter alia the extent of the applicant’s
                                                                         cooperation.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               (1) OJ C 9 of 14.1.1998,p. 3.
European Communities on 2 October 2001 by SGL Carbon                     (2) OJ C 207 of 18.7.1996, p. 4.
AG, Wiesbaden (Germany), represented by M. Klusmann,
F. Wiemer and C. Canenbley, lawyers.
The applicant claims that the Court should:
—     annul decision C(2001) 1986 final of 18 July 2001;                 Action brought on 3 October 2001 by Rica Foods (Free
                                                                         Zone) N.V. against the Commission of the European
—     in the alternative, reduce appropriately the amount of the                                   Communities
      fine imposed on the applicant in the contested decision;
                                                                                (Case T-242/01)
—     order the defendant to pay the costs of the proceedings.
                                                                                (2002/C 3/60)
Pleas in law and main arguments                                                             (Language of the case: Dutch)
The applicant manufactures various carbon and graphite
products, including graphite electrodes. In the course of a              An action against the Commission of the European Communi-
procedure seeking information under Article 11 of Regulation             ties was brought before the Court of First Instance of the
No 17/62 concerning suspected anti-competitive agreements                European Communities on 3 October 2001 by Rica Foods
between undertakings on the market for graphite electrodes,              (Free Zone) N.V., established in Oranjestad (Aruba), represent-
the applicant stated to the defendant that it was willing to             ed by G. van der Wal, with an address for service in
cooperate in the investigation of the case. A similar procedure          Luxembourg.
 ---pagebreak--- 5.1.2002               EN                    Official Journal of the European Communities                                             C 3/35
The applicant claims that the Court should:                             of the OCT decision. Moreover, the Commission has failed to
                                                                        prove any causal link between those problems and the
                                                                        deterioration in a sector of the Community’s activity. The
(1) annul Regulation (EC) No 1476/2001;                                 applicant further claims that the importation of sugar and
                                                                        sugar/cocoa mixtures from the OCT has no impact on those
(2) declare that the Community is liable for the loss and               problems.
      damage suffered by the applicant as a result of the fact
      that, since 19 July 2001, imports of the products referred        In addition, the applicant pleads violation of the principle of
      to in Regulation No 1476/2001 have been prevented or              proportionality and infringement of Articles 3 and 182 to 184
      restricted on account of that regulation, and order that          of the EC Treaty. It claims that the contested regulation fails to
      the parties are to seek to reach agreement concerning the         take account of the preferential treatment afforded by those
      extent of the loss and damage suffered by the applicant           articles to the OCTs.
      and that, in the absence of agreement in that regard, the
      proceedings are to be resumed within a time-limit to be
      fixed by the Court in order for the extent of the loss and        Lastly, the applicant pleads misuse of powers on the part of
      damage to be determined; or, at any rate, order the               the Commission and a failure to provide a statement of reasons
      Community to pay the damages provisionally estimated              for the contested regulation.
      and yet to be assessed, alternatively order the Community
      to pay such amount of damages as the Court shall deem
      fair and equitable, together with interest at the annual          (1) Commission Regulation (EC) No 1476/2001 of 18 July 2001
      rate of 8 % from the date of the application to the date of           amending Regulation (EC) No 1325/2001 as regards safeguard
      payment in full;                                                      measures with regard to imports from the overseas countries
                                                                            and territories of mixtures of sugar and cocoa with ACP/OCT
                                                                            originating status for the period 1 July to 1 December 2001 (OJ
(3) order the Commission to pay the costs.                                  L 195 of 19.7.2001, p. 29).
                                                                        (2) Commission Regulation (EC) No 1325/2001 of 29 June 2001
                                                                            providing for the continued application of safeguard measures
                                                                            with regard to imports of sugar sector products with EC/OCT
                                                                            originating status from the overseas countries and territories for
                                                                            the period 1 July to 1 December 2001 (OJ L 177 of 30.6.2001,
Pleas in law and principal arguments                                        p. 57).
The applicant produces, in Aruba, sugar and sugar/cocoa
mixtures. Aruba forms part of the association of overseas
countries and territories (OCTs). By virtue of the cumulation
of EC/OCT and ACP/OCT originating status, the sugar and
sugar/cocoa mixtures produced by the applicant have OCT                 Action brought on 3 October 2001 by SONY Computer
originating status and may be imported into the EC free from            Entertainment Europe Limited against the Commission of
levies.                                                                                the European Communities
                                                                                (Case T-243/01)
However, by virtue of Commission Regulation (EC)
No 1476/2001 of 18 July 2001 (1) amending Commission                                                (2002/C 3/61)
Regulation (EC) No 1325/2001 of 29 June 2001 (2), a quota of
6 684 tonnes was introduced for mixtures of sugar and cocoa
with ACP/OCT originating status during the period from                                      (Language of the case: English)
19 July to 1 December 2001.
                                                                        An action against the Commission of the European Communi-
The applicant pleads, first, the illegality of Regulation               ties was brought before the Court of First Instance of the
No 1325/2001, which it is contesting in separate proceedings            European Communities on 3 October 2001 by SONY Com-
(Case T-211/01).                                                        puter Entertainment Europe Limited, represented by Mr Phil-
                                                                        ippe de Baere of Van Bael & Bellis, Brussels (Belgium)
In support of its claim in the present proceedings, the applicant       The applicant claims that the Court should:
maintains that the contested regulation infringes Article 109 of
the OCT decision. According to the applicant, the Commission            —     annul Commission Regulation (EC) 1400/2001 (1) as
bases its findings concerning the adoption of the safeguard                   far as it classifies the PlayStation®2 under CN code
measures in question on incorrect facts. Thus, the serious                    9504 10 00 and the accompanying CD-ROM under CN
disturbances or difficulties in a sector of the economy of the                code 852 43 99 0;
Community cited by the Commission do not constitute serious
disturbances or difficulties within the meaning of Article 109          —     order the defendant to bear the costs of the proceedings.


title: ORDER OF THE COURT OF FIRST INSTANCE of 20 March 1998 in Case T-301/97: Pierre-Alexis Feral v. Committee of the Regions (Officials - Time limit for lodging complaint - Manifest inadmissibility of the action)

text:
C 137/16              EN                  Official Journal of the European Communities                                   2.5.98
     ORDER OF THE COURT OF FIRST INSTANCE                            Instance suspending the operation, in part and subject to
                      of 20 March 1998                               certain conditions, of Council Decision 97/803/EC of
                                                                     24 November 1997 amending at mid-term Decision 91/
in Case T-301/97: Pierre-Alexis Feral v. Committee of the            482/EEC on the association of the overseas countries and
                          Regions (1)                                territories with the European Economic Community (1) Ð
(Officials Ð Time limit for lodging complaint Ð Manifest             the President of the Court of First Instance made an order
                 inadmissibility of the action)                      on 2 March 1998, the operative part of which is as
                                                                     follows.
                        (98/C 137/34)
               (Language of the case: French)                        1. The application for interim measures is dismissed.
In Case T-301/97: Pierre-Alexis Feral, official of the
Committee of the Regions, residing at Brussels,                      2. Costs are reserved.
represented by Georges Vandersanden, of the Brussels Bar,
with an address for service in Luxembourg at Fiduciaire
Myson SARL, 30, rue de Cessange, against Committee of                (1) OJ L 329, 29.11.1997, p. 50.
the Regions (Agents: Jordi Garcia-Petit and Denis
Waelbroeck) Ð application for the annulment of a
decision of the Committee of the Regions of 2 September
1997 refusing to grant to the applicant the daily
subsistence allowance provided for by the first paragraph
of Article 10(2)(b) of the Staff Regulations of Officials of
the European Communities Ð the Court of First Instance                              ORDER OF THE PRESIDENT
(Fourth Chamber), composed of P. Lindh, President, K.                          OF THE COURT OF FIRST INSTANCE
Lenaerts and J. D. Cooke, Judges; H. Jung, Registrar,
made an order on 20 March 1998, the operative part of                                      of 3 March 1998
which is as follows:                                                 in Case T-610/97 R: Hanne Norup Carlsen and Others v.
                                                                                Council of the European Union
1. The action is dismissed as manifestly inadmissible.
                                                                     (Decision refusing access to certain documents Ð Opinion
                                                                     of the Legal Service Ð Protection of the public interest Ð
2. Each party is to bear its own costs.
                                                                     Application for interim measures Ð Request that
                                                                              documents be released to a national court)
(1) OJ C 26, 24.1.1998.
                                                                                (98/C 137/36)
                                                                                (Language of the case: Danish)
               ORDER OF THE PRESIDENT
         OF THE COURT OF FIRST INSTANCE                              In Case T-610/97 R: Hanne Norup Carlsen, residing in
                       of 2 March 1998                               Kokkedal (Denmark), Ingeborg Fangel, residing in
                                                                     Copenhagen, Nicolas Fischer, residing in Copenhagen,
in Case T-310/97 R: Government of the Netherlands                    Jùrgen Erik Hansen, residing in Frederiksberg (Denmark),
         Antilles v. Council of the European Union                   Marianne Henriksen, residing in Karrebñksminde
(Association of the overseas countries and territories Ð             (Denmark), Ole Donbñk Jensen, residing in Copenhagen,
Decision amending at mid-term the OCT Decision Ð                     Yvonne Petersen, residing in Copenhagen, Iver Reedtz-
Interlocutory proceedings Ð Application for interim                  Thott, residing in Copenhagen, Lars Ringholm, residing in
               measures Ð Urgency Ð None)                            Ringsted (Denmark), Arne Würgler, residing in Hellerup
                                                                     (Denmark), represented by Karen Dyekjñr-Hansen and, at
                        (98/C 137/35)                                the hearing, by Katja Hùegh, of the Copenhagen Bar, with
                                                                     an address for service in Luxembourg at the Chambers of
               (Language of the case: English)                       Aloyse May, 31, Grand-rue, v. Council of the European
                                                                     Union (Agents: Jean-Claude Piris, Bjarne Hoff-Nielsen,
In Case T-310/97 R, Government of the Netherlands                    and Martin Bauer) Ð application for interim measures,
Antilles, represented by Pierre Vincent FrancËois Bos and            requesting, first, an injunction ordering the Council to
Marco Marinus Slotboom, of the Rotterdam Bar, with an                release to the Hùjesteret (Danish Supreme Court) and the
address for service in Luxembourg at the Chambers of                 parties in the case pending before that court documents
Marc Loesch, 11, rue Goethe, against Council of the                  DOK.R/2026/77 (ENV.118) (AGRI 563) and DOK.R/
European Union (Agents: Jürgen Huber and Guus                        1867/77 (JUR.95) (ENV.106) and, secondly, that the
Houttuin), supported by the Commission of the European               Hùjesteret and the parties to the proceedings be required
Communities (Agents: Thomas van Rijn and Xavier                      not to divulge, in the course of any public hearing, the
Lewis) and Italian Republic (Agents: Umberto Leanza and              tenor of the documents so released, the President of the
Francesca Quadri) Ð application for interim measures in              Court of First Instance has made an order on 3 March
the form of an order of the President of the Court of First          1998, in which he:


title: Case T-336/15: Judgment of the General Court of 22 March 2017 — Windrush Aka v EUIPO — Dammers (The Specials) (EU trade mark — Revocation proceedings — EU word mark The Specials — Genuine use — Article 51(1)(a) of Regulation (EC) No 207/2009 — Consent of the proprietor of the trade mark — Article 15(2) of Regulation No 207/2009)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/37

         Judgment of the General Court of 22 March 2017 — Windrush Aka v EUIPO — Dammers (The Specials)
   (Case T-336/15) (1)

   ((EU trade mark - Revocation proceedings - EU word mark The Specials - Genuine use - Article 51(1)(a) of Regulation (EC) No 207/2009 - Consent of the proprietor of the trade mark - Article 15(2) of Regulation No 207/2009))
   (2017/C 144/48)
   Language of the case: English

      Parties

      Applicant: Windrush Aka LLP (London, United Kingdom) (represented by: S. Malynicz QC and S. Britton, Solicitor)

      Defendant: European Union Intellectual Property Office (represented by: J. Crespo Carillo, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Jerry Dammers (London, United Kingdom) (represented by: C. Fehler, Solicitor, H. Cuddigan and B. Brandreth, Barristers).

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 18 March 2015 (Case R 1412/2014-1), relating to revocation proceedings between Windrush Aka and Mr Dammers.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Windrush Aka LLP to pay the costs.

      (1)  OJ C 294, 7.9.2015.


title: Case C-466/04: Judgment of the Court (First Chamber) of 15 June 2006 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Cantabria, Santander (Spain)) — Servicio Cántabro de Salud v Servicio Cántabro de Salud (Social security — Hospital costs incurred in another Member State — Travel, accommodation and subsistence costs — Article 22 of Regulation (EEC) No 1408/71)

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/4

         Judgment of the Court (First Chamber) of 15 June 2006 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Cantabria, Santander (Spain)) — Servicio Cántabro de Salud v Servicio Cántabro de Salud
   (Case C-466/04) (1)

   (Social security - Hospital costs incurred in another Member State - Travel, accommodation and subsistence costs - Article 22 of Regulation (EEC) No 1408/71)
   (2006/C 190/07)
   Language of the case: Spanish
   Referring court
   Tribunal Superior de Justicia de Cantabria, Santander
   Parties to the main proceedings

      Appellant: Manuel Acereda Herrera

      Respondent: Servicio Cántabro de Salud
   Re:
   Reference for a preliminary ruling — Tribunal Superior de Justicia de Cantabria, Santander — Interpretation of Article 22(1)(c) and (2) and Article 36 of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p.1) — Reimbursement of expenses for travel, stay and subsistence by the institution which granted authorisation for treatment abroad — Articles 10 EC and 249 EC — Compatibility with Community law of national legislation recognising rights additional to those conferred by Article 27 of Regulation No 1408/71, as amended — Freedom to provide services — Discrimination based on nationality — Compatibility of national legislation with Articles 81 EC, 82 EC and 87 EC
   Operative part of the judgment
   The Court:

               1.

               Article 22(1)(c) and (2) and Article 36 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, must be interpreted as meaning that authorisation by the competent institution for an insured person to go to another Member State in order there to receive hospital treatment appropriate to his medical condition does not confer on such a person the right to be reimbursed by the competent institution for the costs of travel, accommodation and subsistence which that person and any person accompanying him incurred in the territory of that latter Member State, with the exception of the costs of accommodation and meals in hospital for the insured person himself.

               2.

               National legislation in which provision is made for entitlement to benefits additional to those provided for in Article 22(1) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, in the situation covered by paragraph (1)(a) of that article, but not in that covered by paragraph (1)(c) thereof, does not obstruct the direct effect of that provision or infringe the principle of cooperation in good faith stemming from Article 10 EC.

      (1)  OJ C 19, 22.01.2005.


title: Case T-536/13: Action brought on 7 October 2013 — Microsoft v OHIM — Softkinetic Software (KINECT)

text:
               21.12.2013

               EN

               Official Journal of the European Union

               C 377/16

         Action brought on 7 October 2013 — Microsoft v OHIM — Softkinetic Software (KINECT)
   (Case T-536/13)
   2013/C 377/39
   Language in which the application was lodged: English

      Parties

      Applicant: Microsoft Corp. (Redmond, United States) (represented by: A. Meijboom, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Softkinetic Software SA (Brussels, Belgium)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 July 2013 given in Case R 2373/2011-1;

               —

               Order the defendant to pay the costs of the proceedings; and

               —

               Order the other party to the proceedings before the Board of Appeal, should it intervene, to pay the costs incurred in the proceedings before the OHIM.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘KINECT’ for goods in Class 9 — Community trade mark application No 9 058 141

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: The word mark ‘SOFTKINETIC’ for goods and services in Classes 9, 28, 38, 41 and 42 — International registration No 1 025 034 designating the European Union; the word mark ‘SOFTKINETIC’ for goods and services in classes 9, 28, 38, 41 and 42 — Benelux trade mark registration No 850 946

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Upheld the appeal and annulled the contested decision

      Pleas in law: Infringement of Articles 8(5) and 8(1)(b) CTMR.


title: Case C-364/17: Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 13 June 2017 — ‘Varna Holideis’ EOOD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

text:
               14.8.2017

               EN

               Official Journal of the European Union

               C 269/13

         Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 13 June 2017 — ‘Varna Holideis’ EOOD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
   (Case C-364/17)
   (2017/C 269/18)
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Varna

      Parties to the main proceedings

      Applicant:‘Varna Holideis’ EOOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

      Questions referred

               1.

               Are Articles 90(1) and 185(1) of Directive 2006/112 (1) to be interpreted as requiring the deduction claimed for input tax on a supply also to be adjusted in a case, such as that in the dispute in the main proceedings, where the legal transaction in respect of which the right to deduct input tax was exercised has been declared null and void by a judgment having legal force or should one, in light of the definition in Article 14(1) of Directive 2006/112, proceed on the basis that there is no supply and the tax claim did not arise in the first place?

               2.

               Is Article 185(1) and (2) of Directive 2006/112 to be interpreted as meaning that, in the absence of a national provision for the adjustment of deduction claimed in respect of input tax, and in the event of a court decision declaring a legal transaction null and void, the adjustment may be made by direct application of Article 90(1) of the directive?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, OJ 2006 L 347, p. 1.


title: Case C-253/04: Action brought on 14 June 2004 by the Commission of the European Communities against the Hellenic Republic

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/13

         Action brought on 14 June 2004 by the Commission of the European Communities against the Hellenic Republic
   (Case C-253/04)
   (2004/C 201/26)
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 14 June 2004 by the Commission of the European Communities, represented by Georgios Zavvos and Michael Shotter, of its Legal Service.
   The Commission claims that the Court should:

               —

               declare that, by failing to adopt, and in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/21/EC (1) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), the Hellenic Republic has failed to fulfil its obligations under that directive;

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

   The period for transposition of the directive into national law expired on 24 July 2003.

      (1)  OJ No L 108, 24.4.2002, p. 33.


title: Case T-174/06: Action brought on 27 June 2006 — Inalca and Cremonini v Commission

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/29

         Action brought on 27 June 2006 — Inalca and Cremonini v Commission
   (Case T-174/06)
   (2006/C 190/54)
   Language of the case: Italian
   Parties

      Applicants: Inalca and Cremonini (Modena, Italy) (represented by: Francesco Sciaudone, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declare that the Commission is liable for non-contractual damages;

               —

               declare that the applicants have suffered damage, assessed at EUR 2 861 000;

               —

               order the Commission to make good such damage together with compensatory interest and interest on any arrears;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The present action seeks compensation for loss allegedly suffered by the applicant companies as a result of the adoption of the letter of 6 July 1998 in which UCLAF communicated to the Italian authorities the findings — which the applicants consider wholly inaccurate — of its investigation into alleged irregularities in the export, with refunds, of beef and veal to Jordan and made allegations which also had criminal-law implications against both companies and their directors.
   In support of their claims, the applicants argue:

               —

               infringement of the second and fourth subparagraphs of Article 9(2) of Regulation No 729/70 in that, firstly, the inspection carried out by UCLAF in Jordan is open to challenge since it exceeded the limits of its supervisory powers, which are confined to the territory of the Member States, and, secondly, UCLAF breached the obligation to prepare and conduct inspections and supervision with the prior agreement of the Member States and in the presence of the representatives of all the national authorities concerned.

               —

               Infringement of the second subparagraph of Article 9(2) of Regulation No 2988/95 and of Article 4 of Regulation No 2185/96 in that UCLAF breached the obligation to prepare on-the-spot checks and inspections in close collaboration with the Member States and to inform the competent national authorities before carrying out such checks.

               —

               Infringement of Article 18 of Regulation No 3665/87 in that UCLAF disregarded the probative value recognised and conferred by that regulation on a series of expressly listed documents and arbitrarily gave preference to a series of other documents, undermining the principle of legal certainty and the transparency of checks.

         The applicants also plead infringement of the principles of good administration, diligence and proportionality and breach of professional secrecy.
   Lastly, the applicants state that, even if UCLAF's conduct may not be open to censure, UCLAF is none the less liable for causing the applicants loss. The latter could not reasonably foresee, and therefore prevent, the damage that would be caused to them by an investigation which, they assert, proved to be wholly erroneous.


title: Case C-161/05: Action brought on 7 April 2005 by the Commission of the European Communities against the Italian Republic

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/19

         Action brought on 7 April 2005 by the Commission of the European Communities against the Italian Republic
   (Case C-161/05)
   (2005/C 132/36)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 7 April 2005 by the Commission of the European Communities, represented by C. Cattabriga, member of the Commission's Legal Service.
   The applicant claims that the Court should:

               1.

               declare that, by failing to notify the data referred to in Articles 15(4) and 18(1) of Council Regulation (EEC) No 2847/93 (1) of 12 October 1993 establishing a control system applicable to the common fisheries policy, the Italian Republic has failed to fulfil its obligations under those provisions;

               2.

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   Articles 15(4) and 18(1) of Regulation No 2847/93 require the Member States to notify by computer transmission and within a certain period the Commission of certain data. The Italian authorities did not notify within the prescribed periods the data in question for 1999 and 2000. The Italian Republic has therefore infringed its notification obligations under those provisions.

      (1)  OJ 1993 L 261 of 20.10.1993, p. 1.


title: Case T-228/13: Judgment of the General Court of 22 May 2014  — NIIT Insurance Technologies v OHIM (EXACT) (Community trade mark — Application for Community word mark EXACT — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Obligation to state reasons — Equal treatment — Article 56 TFEU)

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/30

         Judgment of the General Court of 22 May 2014 — NIIT Insurance Technologies v OHIM (EXACT)
   (Case T-228/13) (1)

   ((Community trade mark - Application for Community word mark EXACT - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Obligation to state reasons - Equal treatment - Article 56 TFEU))
   2014/C 212/37
   Language of the case: German

      Parties

      Applicant: NIIT Insurance Technologies Ltd (London, United Kingdom) (represented by: M. Wirtz, lawyer)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 18 February 2013 (Case R 1307/2012-4) concerning an application for registration of the word sign EXACT as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders NIIT Insurance Technologies Ltd to pay the costs.

      (1)  OJ C 189, 29.6.2013.


title: Case C-265/07: Reference for a preliminary ruling from the Tribunale Civile di Roma (Italy) lodged on 4 June 2007 — Caffaro Srl v Azienda Unità Sanitaria Locale RM/C

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/18

         Reference for a preliminary ruling from the Tribunale Civile di Roma (Italy) lodged on 4 June 2007 — Caffaro Srl v Azienda Unità Sanitaria Locale RM/C
   (Case C-265/07)
   (2007/C 199/29)
   Language of the case: Italian
   Referring court
   Tribunale Civile di Roma
   Parties to the main proceedings

      Applicant: Caffaro Srl

      Defendant: Azienda Unità Sanitaria Locale RM/C
   Question referred
   In so far as it provides that, in the case of enforcement against public authorities, creditors may not act to effect such enforcement until a period of 120 days has elapsed following service of the recovery order, does Article 14 of Decree Law No 669/1996, as amended by Article 147 of Law No 388/2000, conflict with Directive 2000/35/EC (1), in particular with Article 5 thereof?

      (1)  OJ L 200, 8.8.2000, p. 35.


title: Case T-524/15: Action brought on 7 September 2015 — NICO/Council

text:
               9.11.2015

               EN

               Official Journal of the European Union

               C 371/34

         Action brought on 7 September 2015 — NICO/Council
   (Case T-524/15)
   (2015/C 371/35)
   Language of the case: English

      Parties

      Applicant: Naftiran Intertrade Co. (NICO) Sàrl (Pully, Suisse) (represented by: J. Grayston, P. Gjørtler, G. Pandey, and D. Rovetta, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               order the Council, under measures of organization of the procedure, to disclose the full version of Annex 1 to document 7228/14 EXT 1 of 23 January 2015 concerning ‘I/A ITEM NOTE’ from the General Secretariat of the Council to the Permanent Representative Committee as well as any other document concerning the applicant,

               —

               annul the decision of the Council contained in the letter of 26 June 2015, addressed to the applicant’s lawyers, concerning review of the list of designated persons and entities in Annex II to Council Decision 2010/413/CFSP (1) concerning restrictive measures against Iran, as amended by Council Decision 2012/635/CFSP of 15 October 2012, and in Annex IX to Regulation (EU) No 267/2012 (2) concerning restrictive measures against Iran, as implemented by Council Implementing Regulation (EU) No 945/2012 of 15 October 2012, in so far as the contested decision constitutes a refusal to remove the applicant from the list of persons and entities made subject to the restrictive measures,

               —

               order the Council to bear the costs of the proceedings

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law.

               1.

               First plea in law, alleging a violation of the rights of defence and right to be heard, a breach of Article 41 of the Charter of Fundamental Rights, and a breach of the principle of sound administration

                           —

                           The applicant during the review procedure has only just been informed that a negative decision against it has already been adopted by the Council. It has not been given any possibility to comment and rely on its rights of defence. Instead, it has only been given a deadline by which to send comments which, far from being taken into account before deciding, the Council will only examine in a separate, future administrative review delisting process.

               2.

               Second plea in law, alleging an insufficient statement of reasons

                           —

                           The review decision does not contain a proper statement of reasons which would allow the applicant to understand why its administrative application for delisting has been refused.

               3.

               Third plea in law, alleging a manifest error of assessment and a breach of essential procedural and substantive requirements

                           —

                           The Council clearly relied upon documents and evidence related to previous phases of the administrative proceedings in order to justify the challenged decision.

               4.

               Fourth plea in law, alleging a breach of essential procedural and substantive requirements, a breach of article 41 of the Charter of Fundamental Rights, and a lack of competence of the person signing the challenged decision.

                           —

                           The challenged Council letter of 26 June 2015 containing the decision not to delist it is formally defective. Such defects in the form of the act at issue also give rise to substantive breaches of the applicant’s rights.

      (1)  Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).

      (2)  Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).


title: Judgment of the Court of 13 January 2004 in Case C-256/01 (Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division): Debra Allonby v Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional, formerly Education Lecturing Services Secretary of State for Education and Employment (Principle of equal pay for men and women — Direct effect — Meaning of worker — Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by male lecturers who are employees, but under contract with a third company — Self-employed lecturers not eligible for membership of an occupational pension scheme)

text:
C 47/4                   EN                           Official Journal of the European Union                                               21.2.2004
Community law on freedom to provide services precludes a business             composed of: V. Skouris, acting for the President of the
from being subject to an obligation to be entered on the trades register      Sixth Chamber, J.-P. Puissochet, R. Schintgen, F. Macken and
which delays, complicates or renders more onerous the provision of its        N. Colneric (Rapporteur), Judges; L.A. Geelhoed, Advocate
services in the host Member State where the conditions prescribed by          General; L. Hewlett, Principal Administrator, for the Registrar,
the directive governing recognition of professional qualifications            has given a judgment on 15 January 2004, in which it has
which is applicable to pursuit of that activity in the host Member            ruled:
State are satisfied.
                                                                              Articles 1 and 2 of Council Regulation (EEC) No 3950/92 of
                                                                              28 December 1992 establishing an additional levy in the milk and
The mere fact that a business established in one Member State
                                                                              milk products sector do not authorise the competent body to act
supplies identical or similar services in a repeated or more or less
                                                                              directly, in cases other than that of direct sales, against a producer to
regular manner in a second Member State, without having an
                                                                              recover the amount owed by him in respect of the additional levy on
infrastructure there enabling it to pursue a professional activity there
                                                                              milk. However, the Member States’ obligation under Article 10 EC
on a stable and continuous basis and, from the infrastructure, to hold
                                                                              to take measures to ensure collection of the levy in the event of the
itself out to, amongst others, nationals of the second Member State,
                                                                              mechanism provided for in Article 2(2) of that regulation being
cannot be sufficient for it to be regarded as established in the second
                                                                              frustrated includes the power to take direct action against the producer
Member State.
                                                                              with a view to recovering the amount payable where it is established
                                                                              that the producer has not paid it to the purchaser and that the
                                                                              purchaser is not taking due steps to collect it from the producer. On
(1) OJ C 212 of 28.7.2001.
                                                                              the other hand, non-compliance with the conditions laid down in
                                                                              Article 7 of Commission Regulation (EEC) No 536/93 of 9 March
                                                                              1993 laying down detailed rules on the application of the additional
                                                                              levy on milk and milk products, and in particular the absence of
                                                                              approval as purchaser, is not in itself relevant.
                                                                              (1) OJ C 352 of 4.12.1999.
                  JUDGMENT OF THE COURT
                          (Sixth Chamber)
                         of 15 January 2004
                                                                                JUDGMENT OF THE COURT
in Case C-230/01 (Reference for a preliminary ruling from
the Court of Appeal (England and Wales) (Civil Division):
The Intervention Board for Agricultural Produce v Peny-                                                of 13 January 2004
                   coed Farming Partnership (1)
                                                                              in Case C-256/01 (Reference for a preliminary ruling from
(Regulation (EEC) No 3950/92 — Additional levy in the                         the Court of Appeal (England & Wales) (Civil Division):
milk and milk products sector — Deliveries by a producer to                   Debra Allonby v Accrington & Rossendale College, Edu-
a purchaser — Payment of levy — Recovery from the                             cation Lecturing Services, trading as Protocol Pro-
                               producer)                                      fessional, formerly Education Lecturing Services Sec-
                                                                                retary of State for Education and Employment (1)
                           (2004/C 47/06)
                                                                              (Principle of equal pay for men and women — Direct effect
                                                                              — Meaning of worker — Self-employed female lecturer
                     (Language of the case: English)                          undertaking work presumed to be of equal value to that
                                                                              which is undertaken in the same college by male lecturers
                                                                              who are employees, but under contract with a third company
                                                                              — Self-employed lecturers not eligible for membership of an
In Case C-230/01: Reference to the Court under Article 234                                        occupational pension scheme)
EC by the Court of Appeal (England and Wales) (Civil Division)
for a preliminary ruling in the proceedings pending before that                                           (2004/C 47/07)
court between The Intervention Board for Agricultural Produce
and Penycoed Farming Partnership, on the interpretation of
Council Regulation (EEC) No 3950/92 of 28 December 1992                                            (Language of the case: English)
establishing an additional levy in the milk and milk products
sector (OJ 1992 L 405, p. 1) and Commission Regulation
(EEC) No 536/93 of 9 March 1993 laying down detailed rules
on the application of the additional levy on milk and milk                    In Case C-256/01: Reference to the Court under Article 234
products (OJ 1993 L 57, p. 12), the Court (Sixth Chamber),                    EC by the Court of Appeal (England and Wales) (Civil Division)
 ---pagebreak--- 21.2.2004                 EN                              Official Journal of the European Union                                                 C 47/5
for a preliminary ruling in the proceedings pending before that                                    JUDGMENT OF THE COURT
court between Debra Allonby and Accrington & Rossendale
College, Education Lecturing Services, trading as Protocol                                              of 11 December 2003
Professional, formerly Education Lecturing Services Secretary
of State for Education and Employment, on the interpretation
of Article 141 EC, the Court, composed of: V. Skouris,                            in Case C-322/01 (Reference for a preliminary ruling
President, P. Jann, C.W.A. Timmermans, C. Gulmann and                             from the Landgericht Frankfurt am Main): Deutscher
J.N. Cunha Rodrigues (Presidents of Chambers), A. La Pergola,                     Apothekerverband eV v 0800 DocMorris NV, Jacques
J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric (Rappor-                                               Waterval (1)
teur) and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, has given                 (Articles 28 EC and 30 EC — Directives 92/28/EEC and
a judgment on 13 January 2004, in which it has ruled:                             2000/31/EC — National legislation restricting internet
                                                                                sales of medicinal products for human use by pharmacies
                                                                                established in another Member State — Doctor’s prescription
1.     In circumstances such as those of the main proceedings,                    required for supply — Prohibition on advertising the sale of
       Article 141(1) EC must be interpreted as meaning that a                                    medicinal products by mail order)
       woman whose contract of employment with an undertaking has
       not been renewed and who is immediately made available to                                            (2004/C 47/08)
       her previous employer through another undertaking to provide
       the same services is not entitled to rely, vis-à-vis the intermediary
                                                                                (Language of the case: German)
       undertaking, on the principle of equal pay, using as a basis for
       comparison the remuneration received for equal work or work
       of the same value by a man employed by the woman’s previous                (Provisional translation; the definitive translation will be published
       employer.                                                                                in the European Court Reports)
2.     Article 141(1) EC must be interpreted as meaning that a
       woman in circumstances such as those of the main proceedings               In Case C-322/01: Reference to the Court under Article 234
       is not entitled to rely on the principle of equal pay in order to          EC by the Landgericht Frankfurt am Main (Germany) for a
       secure entitlement to membership of an occupational pension                preliminary ruling in the proceedings pending before that
       scheme for teachers set up by State legislation of which only              court between Deutscher Apothekerverband eV and 0800
       teachers with a contract of employment may become members,                 DocMorris NV, Jacques Waterval, on the interpretation of
       using as a basis for comparison the remuneration, including                Articles 28 EC and 30 EC and of Article 1(3) and (4) and
       such a right of membership, received for equal work or work of             Articles 2 and 3 of Council Directive 92/28/EEC of 31 March
       the same value by a man employed by the woman’s previous                   1992 on the advertising of medicinal products for human use
       employer.                                                                  (OJ 1992 L 113, p. 13), in conjunction with Directive 2000/
                                                                                31/EC of the European Parliament and of the Council of 8 June
                                                                                2000 on certain legal aspects of information society services,
3.     In the absence of any objective justification, the requirement,            in particular electronic commerce, in the internal market (‘the
       imposed by State legislation, of being employed under a contract           Directive on electronic commerce’) (OJ 2000 L 178, p. 1),
       of employment as a precondition for membership of a pension                the Court, composed of: V. Skouris, President, P. Jann,
       scheme for teachers is not applicable where it is shown that,              C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
       among the teachers who are workers within the meaning of                   A. Rosas (Presidents of Chambers), D.A.O. Edward (Rappor-
       Article 141(1) EC and fulfil all the other conditions for                  teur), A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken,
       membership, a much lower percentage of women than of men                   N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate
       is able to fulfil that condition. The formal classification of a           General; H.A. Rühl, Principal Administrator, for the Registrar,
       self-employed person under national law does not change the                has given a judgment on 11 December 2003, in which it has
       fact that a person must be classified as a worker within the               ruled:
       meaning of that article if his independence is merely notional.
                                                                                1.    a)   A national prohibition on the sale by mail order of
4.     Article 141(1) EC must be interpreted as meaning that where                           medicinal products the sale of which is restricted to
       State legislation is at issue, the applicability of that provision                    pharmacies in the Member State concerned, such as
       vis-à-vis an undertaking is not subject to the condition that the                     the prohibition laid down in Paragraph 43(1) of the
       worker concerned can be compared with a worker of the other                           Arzneimittelgesetz (Law on medicinal products) in the
       sex who is or has been employed by the same employer and who                          version of 7 September 1998, is a measure having an
       has received higher pay for equal work or work of equal value.                        effect equivalent to a quantitative restriction for the
                                                                                purposes of Article 28 EC.
                                                                                (b) Article 30 EC may be relied on to justify a national
(1) OJ C 289 of 13.10.2001.                                                                  prohibition on the sale by mail order of medicinal products
                                                                                which may be sold only in pharmacies in the Member
                                                                                State concerned in so far as the prohibition covers
                                                                                medicinal products subject to prescription. However,
                                                                                Article 30 EC cannot be relied on to justify an absolute


title: Case C-123/16 P: Appeal brought on 27 February 2016 by Orange Polska SA against the judgment of the General Court (Eighth Chamber) delivered on 17 December 2015 in Case T-486/11: Orange Polska SA v European Commission

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/10

         Appeal brought on 27 February 2016 by Orange Polska SA against the judgment of the General Court (Eighth Chamber) delivered on 17 December 2015 in Case T-486/11: Orange Polska SA v European Commission
   (Case C-123/16 P)
   (2016/C 191/12)
   Language of the case: English

      Parties

      Appellant: Orange Polska SA (represented by: D.M. Beard QC, A. Howard, Barristers, M. Modzelewska de Raad, adwokat, P. Paśnik, adwokat)

      Other parties to the proceedings: European Commission, Polska Izba Informatyki i Telekomunikacji, European Competitive Telecommunications Association

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the Judgment;

               —

               annul the Decision in its entirety; alternatively

               —

               annul Article 2 of the Decision in its entirety; or in the alternative,

               —

               reduce the fine there stated, as appropriate; or in the alternative

               —

               remit the decision in relation to the fine to the Commission; and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of its appeal, the Appellant raises three pleas in law — the first plea challenges the substantive validity of the finding of infringement in the contested Commission Decision, whereas as the latter two are directed against the level of the fine imposed by virtue of Article 2 of the Decision.

               a.

               First, the Appellant contends that the General Court has committed an error of law and reasoning by failing to require the Commission to demonstrate any legitimate interest in pursuing an investigation and in adopting an infringement decision regarding historic conduct.

               b.

               Secondly, the General court has committed a number of errors of law and/or distorted the evidence in upholding the Commission’s appraisal of the impact of the infringement for the purpose of calculating the level of the fine.

               c.

               Thirdly, the General court has committed errors of law and has manifestly erred in its appreciation of the evidence in refusing to give credit for the investments made by Orange so as to reduce the fine due to mitigating circumstances.