title: Case T-210/09: Action brought on 26 May 2009 — Formenti Seleco v Commission

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/22

         Action brought on 26 May 2009 — Formenti Seleco v Commission
   (Case T-210/09)
   2009/C 167/44
   Language of the case: Italian

      Parties

      Applicant: Formenti Seleco SpA (Pordenone, Italy) (represented by: A. Malatesta, G. Terracciano and S. Malatesta, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Order the Commission of the European Communities to pay compensation totalling EUR 1 562 008 915,03 to Formenti Seleco SpA, which is in liquidation under special administration, together with statutory interest with effect from the date of declaration of insolvency or, in the alternative, to the extent which the Court may consider equitable;

               —

               order the Commission of the European Communities to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicant company, one of the main manufacturers in Italy of colour televisions, was declared insolvent and placed under special administration following the wide-scale importation into the European market of colour televisions manufactured by Turkish companies which were sold at prices that amounted to dumping.
   That situation arose within the Community as a direct result of the infringement by the Turkish Republic of the Association Agreement concluded with the EC in 1963 and subsequent supplementary measures, in so far as the Turkish Government established a legal framework designed to avoid its obligations under the Association Agreement with the Community with regard, in particular, to the determination of the Turkish origin of colour televisions imported into the Community, the Commission having been aware since at least 1993 of such circumventions.
   In particular, Formenti Seleco SpA maintains that the Commission is liable on the following grounds, which are capable of establishing its non-contractual liability to it and its consequent obligation to pay compensation for damage:

               (1)

               infringement of its obligations under the Association Agreement and the Additional Protocol thererto, in so far as, either during the transitional period for the implementation of the customs union between the Community and the Turkish Republic or until 1994, or, in particular, at the time when full customs union was accomplished, it failed to ensure that the relevant customs legislation was correctly applied, even though it was aware that the Turkish Republic was disregarding the agreements.

               (2)

               Infringement of Article 211 EC and the principle of sound administration, since, in so far as the Association Agreement and the Additional Protocol form part of Community law, the Commission is also obliged to monitor the implementation of those provisions and to ensure sound administration.

               (3)

               Infringement of the principle of the protection of legitimate expectations, since, as a result of the conduct referred to above, it frustrated the expectation of individual Community commercial operators, and in particular that of the applicant, that the customs union with Turkey would function properly, an expectation that should have been met by means of the checks and controls which the Commission failed to carry out.

               (4)

               Infringement and/or misapplication of the rules on anti-dumping, since the Commission, even though it had been aware since 1993 of the serious irregularities committed by Turkish exporters, failed to adopt protective measures against such exporters and acted without the diligence and prudence normally to be expected of an administration.


title: Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof by order of that court of 12 January 1995 in the case of Siegfried Otte v. Federal Republic of Germany (Case C-25/95)

text:
No C 87/4            [ EN                   Official Journal of the European Communities                                          8 . 4 . 95
Registrar, gave a judgment on 7 March 1995, the operative                   security schemes to employed persons, to self-employed
part of which is as follows :                                               persons and to members of their families moving within
                                                                            the Community 0, as amended and updated by Council
                                                                            Regulation (EEC ) No 2001/83 of 2 June 1983 (2), to be
 1 . on a proper construction of the expression 'place where                interpreted as also applying to benefits granted by a
     the harmful event occurred' in Article 5 (3) of the                    Member State in the form of a national subsidy upon
      Convention of 27 September 1968 on Jurisdiction and
                                                                            application and without legal entitlement (in this case in
     the Enforcement ofJudgments in Civil and Commercial                    accordance with the guidelines on the granting of
     Matters, as amended by the Convention of 9 October
                                                                            adaptation allowance to employees in the coal mining
      1978 on the accession of the Kingdom of Denmark,                      Industry) to older employees in the coal mining industry
     Ireland and the United Kingdom of Great Britain and                    laid off as a result of closure or rationalization
     Northern Ireland and by the Convention of25 October                    measures ?
     1982 on the accession of the Hellenic Republic, the
     victim of a libel by a newspaper article distributed in
     several Contracting States may bring an action for                2. If the answer is in the affirmative: Does Article 4 ( 1 ) (c )
     damages against the publisher either before the courts of              of Regulation (EEC) No 1408/71 require the national
     the Contracting State of the place where the publisher of              subsidy granted by the Member State to be assessed in
     the defamatory publication is established, which have                  accordance with Article 46 of Regulation (EEC )
     jurisdiction to award damages for all the harm caused by               No 1408/71 , having regard to Article 46 ( 2 ) ( b ) in
     the defamation, or before the courts ofeach Contracting                particular ?
     State in which the publication was distributed and
     where the victim claims to have suffered injury to his
     reputation, which have jurisdiction to rule solely in             3 . If the national subsidy granted by the Member State is to
     respect of the harm caused in the State of the court                   be assessed in accordance with Article 46 of Regulation
     seised;                                                                (EEC) No 1408/71 :
2 . the criteria for assessing whether the event in question is             Does the first sentence of Article 12 (2 ) of Regulation
     harmful and the evidence required of the existence and                 (EEC ) No 1408/71 permit a pension, within the
     extent of the harm alleged by the victim of the                        meaning of Article 1 (t) of Regulation (EEC)
     defamation are not governed by the Convention but by                   No 1408/71 , paid by another Member State (in this case
     the substantive law determined by the national conflict                the Netherlands WAO pension) to be deducted, or does
     of laws rules of the court seised, provided that the                   the second sentence of Article 12 (2 ) of Regulation
     effectiveness of the Convention is not thereby                         (EEC) No 1408/71 preclude such deduction ?
     impaired.
                                                                       4. If a deduction in accordance with the first sentence of
0 ) OJ No C 117, 28 . 4. 1993 .                                             Article 12 (2 ) of Regulation (EEC ) No 1408/71 is
(2 ) OJ No L 299 , 31 . 12 . 1972 .                                         permissible:
(3 ) OJ No L 304, 30. 10. 1978 , p. 1 — amended text — p. 77.
(4 ) OJ No L 388 , 31 . 12 . 1982 , p . 1 .                                 Is such deduction limited by Article 7 ( 1 ) ( b ) of Council
                                                                            Regulation (EEC) No 574/72 of 21 March 1972 (3)
                                                                            laying down the procedure for implementing Regulation
                                                                            ( EEC ) No 1408/71 , as amended and updated by Council
                                                                            Regulation (EEC ) No 2001/83 of 2 June 1983 ?
Reference for a preliminary ruling from the Hessischer                 (M OJ No L 149, 5 . 7. 1971 , p. 2.
Verwaltungsgerichtshof by order of that court of 12 January            (2) OJ No L 230, 22 . 8 . 1983 , p. 6.
1995 in the case of Siegfried Otte v. Federal Republic of              (3 ) OJ No L 74, 27. 3 . 1972, p. 1 .
                              Germany
                          Case C-25/95
                             95/C 87/07
Reference has been made to the Court of Justice of the
European Communities by an order of the Hessischer                    Reference for a preliminary ruling from the Rechtbank van
Verwaltungsgerichtshof ( Higher Administrative Court                  Eerste Aanleg te Antwerpen, by judgment of that court of
Hessen) of 12 January 1995, which was received at the                 31 January 1995 in the case of ( 1 ) E. Pastoors and (2 )
Court Registry on 2 February 1995 , for a preliminary ruling                         Trans-Cap GmbH v. Belgian State
in the case of Siegfried Otte v. Federal Republic of Germany
                                                                                (Case C-29/95 )
on the following questions:
                                                                                ( 95/C 87/08
1 . Are paragraphs ( 1 ) and (2 ) of Article 4, and in particular
     Article 4 ( 1 ) (c) of Council Regulation ( EEC)                 Reference has been made to the Court of Justice of the
     No 1408/71 of 14 June 1971 on the application of social          European Communities by judgment of the Rechtbank van


title: Case C-508/09: Judgment of the Court (Eighth Chamber) of 3 March 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Conservation of wild birds — Directive 79/409/EEC — Derogations from the system of protection for wild birds)

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/7

         Judgment of the Court (Eighth Chamber) of 3 March 2011 — European Commission v Italian Republic
   (Case C-508/09) (1)

   (Failure of a Member State to fulfil obligations - Conservation of wild birds - Directive 79/409/EEC - Derogations from the system of protection for wild birds)
   2011/C 130/11
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: D. Recchia and C. Zadra, acting as Agents)

      Defendant: Italian Republic (represented by: G. Palmieri and G. Fiengo, agents, S. Fiorentino, avvocato dello Stato)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Derogations — Region of Sardinia

      Operative part of the judgment

   The Court:

               1.

               Since the region of Sardinia has adopted and applies legislation, relating to the authorisation of derogations from the rules for the protection of wild birds, which does not comply with the conditions laid down in Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Italian Republic has failed to fulfil its obligations under Article 9 of that directive;

               2.

               The Italian Republic is ordered to pay the costs.

      (1)  OJ C 24 of 30.01.2010


title: Case C-355/14: Request for a preliminary ruling from the Administrativen sad — Pleven (Bulgaria) lodged on 21 July 2014  — Polihim-SS EOOD v Nachalnik na Mitnitsa — Svishtov

text:
               22.9.2014

               EN

               Official Journal of the European Union

               C 329/6

         Request for a preliminary ruling from the Administrativen sad — Pleven (Bulgaria) lodged on 21 July 2014 — Polihim-SS EOOD v Nachalnik na Mitnitsa — Svishtov
   (Case C-355/14)
   2014/C 329/08
   Language of the case: Bulgarian

      Referring court

   Administrativen sad — Pleven

      Parties to the main proceedings

      Appellant in cassation: Polihim-SS EOOD

      Respondent in the appeal in cassation: Nachalnik na Mitnitsa — Svishtov

      Questions referred

               1.

               Is the term ‘[consumption of] energy products’ in Article 1(1)(a) of Council Directive 2008/118/EC (1) of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (2) to be interpreted — in cases involving energy products which have been released for free circulation and are removed from a tax warehouse of an authorised warehouse keeper, sold in a commercial transaction to a purchaser which possesses neither an authorisation for the production of electricity nor a certificate as an end user exempt from excise duty, and which are then resold by that purchaser to a third party which possesses an authorisation for the production of electricity, a permit from the competent authorities of the Member State for receiving duty-free energy products and a certificate as an end user exempt from excise duty, and to which the energy products are delivered directly by the authorised warehouse keeper, without coming under the actual control of the purchaser — as meaning that the energy products are consumed by their direct purchaser, which does not in fact put them to use in a particular operation, or as meaning that they are consumed by the third party, which does in fact put them to use in an operation which it carries out?

               2.

               Is the term ‘used to produce electricity’ in Article 14(1)(a) of Council Directive 2003/96/EC (3) of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity to be interpreted — in cases involving energy products which have been released for free circulation and are removed from a tax warehouse of an authorised warehouse keeper, sold in a commercial transaction to a purchaser which possesses neither an authorisation for the production of electricity nor a certificate as an end user exempt from excise duty, and which are then resold by that purchaser to a third party which possesses an authorisation for the production of electricity, a permit from the competent authorities of the Member State for receiving duty-free energy products and a certificate as an end user exempt from excise duty, and to which the energy products are delivered directly by the authorised warehouse keeper, without coming under the actual control of the purchaser — as meaning that the energy products are used by the direct purchaser, which does not in fact put them to use in a particular operation for achieving a purpose exempt from excise duty, or as meaning that they are used by the third party, which does in fact put them to use in an operation which it carries out for achieving a purpose exempt from excise duty, namely heating, for example, for the production of electricity?

               3.

               Taking into account the principles of the provisions of EU law concerning excise duty, in particular Article 1(1)(a) of Directive 2008/118 and Article 14(1)(a) of Directive 2003/96, are energy products subject to excise duty and, if so, at what rate — that for motor fuel or that for energy products used for heating purposes — if it is established that the energy products concerned were supplied to an end user which possesses the appropriate authorisations and permits under national law for the production of electricity and a certificate as an end user exempt from excise duty and which received the goods directly from the authorised warehouse keeper, but which is not the first purchaser of the goods?

               4.

               Taking into account the principles of the provisions of EU law concerning excise duty, in particular Article 1(1)(a) of Directive 2008/118 and Article 14(1)(a) of Directive 2003/96, are energy products subject to excise duty at the rate for motor fuel if it is established that the energy products concerned are consumed or used for a purpose which is exempt from excise duty, namely the production of electricity, by a person which possesses the corresponding authorisations and permits under national law and which received the goods directly from the authorised warehouse keeper, but which is not the first purchaser of the goods?

      (1)  OJ 2009 L 9, p. 12.

      (2)  Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).

      (3)  OJ 2003 L 283, p. 51.


title: Case T-314/09: Order of the General Court of 2 April 2014 — Intercéréales and Grossi v Commission (State aid — Framework system of actions able to be undertaken by the recognised French agricultural interprofessional organisations in favour of members of the agricultural sectors represented — Financing by voluntary levies made compulsory — Decision declaring the aid scheme compatible with the common market — Withdrawal of the decision — No need to adjudicate)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/44

         Order of the General Court of 2 April 2014 — Intercéréales and Grossi v Commission
   (Case T-314/09) (1)

   ((State aid - Framework system of actions able to be undertaken by the recognised French agricultural interprofessional organisations in favour of members of the agricultural sectors represented - Financing by voluntary levies made compulsory - Decision declaring the aid scheme compatible with the common market - Withdrawal of the decision - No need to adjudicate))
   2014/C 175/60
   Language of the case: French

      Parties

      Applicant: Intercéréales (Paris, France); and Alain Grossi (Nimes, France) (represented initially by: B. Le Bret and L. Olza Moreno, and subsequently by: B. Le Bret and C. Renner, lawyers)

      Defendant: European Commission (represented initially by: B. Stromsky and C. Urraca Caviedes, subsequently by: B. Stromsky and S. Thomas, and finally by: B. Stromsky, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2008) 7846 final of 10 December 2008 concerning State aid No 561/2008, on the framework system of actions able to be undertaken by the recognised French agricultural interprofessional organisations in favour of members of the agricultural sectors represented

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               The European Commission shall pay the costs.

      (1)  OJ C 244, 10.10.2009.


title: Case C-256/01: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court of 22 June 2001, in the case of Debra Allonby against 1) Accrington & Rossendale College, 2) Education Lecturing Services, 3) Secretary of State for Education and Employment

text:
13.10.2001            EN                     Official Journal of the European Communities                                       C 289/11
b)   Does Article 11 of the Directive simply mean that, if a                  eligible to join the Scheme can comply with the require-
     candidate for approval to audit accounting documents in                  ment of being employed under a contract of employment,
     a Member State of the European Union has obtained,                       and by establishing that the requirement is not objectively
     under the regime which applied before harmonisation,                     justified?
     some of the required qualifications in another Member
     State, the Member State from which approval is sought
     regards those qualifications as having been obtained in
     that same State and does not introduce an exception to
     the generally applicable rule that approval is granted only
     after an examination of professional competence has
     been passed? Or is it to be interpreted as allowing a
     person holding an approval to audit accounting docu-               Reference for a preliminary ruling by the Tribunale di
     ments which has been granted to him in a Member State              Bari — Sezione distaccata di Altamura, by order of that
     under the regime which applied before harmonisation to             court of 28 June 2001 in the case of Walter Ferro against
     receive the corresponding approval in another Member                                       Giovanni Santoro
     State without being obliged to sit an examination of
     professional competence, but just on a simple finding                                       (Case C-273/01)
     that his qualifications are equivalent?
                                                                                (2001/C 289/21)
(1) OJ L 126, 12.5.1984, p. 20.                                         Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Tribunale di Bari —
                                                                        Sezione distaccata di Altamura (Bari District Court, Altamura
                                                                        Division) of 28 June 2001, which was received at the Court
                                                                        Registry on 12 July 2001, for a preliminary ruling in the case
                                                                        of Walter Ferro against Giovanni Santoro on the following
                                                                        question:
                                                                        ‘whether Directive 86/653/EEC (1) on the coordination of the
                                                                        laws of the Member States relating to self-employed commer-
Reference for a preliminary ruling by the Court of Appeal               cial agents and, in any event, the principles of Community law
(England & Wales) (Civil Division), by order of that court              of freedom of movement and the freedom to provide services
of 22 June 2001, in the case of Debra Allonby against 1)                are to be interpreted as being compatible with national
Accrington & Rossendale College, 2) Education Lecturing                 legislation which makes the right of brokers to payment for
Services, 3) Secretary of State for Education and Employ-               services conditional upon their being entered in the appropri-
                               ment                                     ate register.’
                        (Case C-256/01)                                 (1) Council Directive 86/653/EEC of 18 December 1986 on the
                                                                            coordination of the laws of the Member States relating to self-
                                                                            employed commercial agents OJ L 382, 31.12.1986, p. 17.
                        (2001/C 289/20)
Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England & Wales) (Civil Division) of 22 June 2001, which was
received at the Court Registry on 3 July 2001, for a preliminary        Reference for a preliminary ruling by the House of Lords
ruling in the case of Debra Allonby against 1) Accrington &             (United Kingdom), by order of that court of 7 June 2001,
Rossendale College, 2) Education Lecturing Services, 3) Sec-            in the case of Sinclair Collis Ltd against Commissioners of
retary of State for Education and Employment, on the follow-                                   Customs and Excise
ing questions:
                                                                                (Case C-275/01)
1.   Does Article 141 have direct effect so as to enable a
     woman to claim equal pay with a man in the circum-                                          (2001/C 289/22)
     stances of this case?
                                                                        Reference has been made to the Court of Justice of the
2.   Does Article 141 have direct effect so as to entitle               European Communities by an order of the House of Lords
     Mrs Allonby to claim access to the pension scheme either           (United Kingdom) of 7 June 2001, which was received at the
     (i) by comparing herself with Mr Johnson or (ii) by                Court Registry on 12 July 2001, for a preliminary ruling in the
     showing statistically that a considerably smaller pro-             case of Sinclair Collis Ltd against Commissioners of Customs
     portion of female than of male teachers who are otherwise          and Excise, on the following question:


title: Case C-140/08: Judgment of the Court (Third Chamber) of 29 October 2009 (reference for a preliminary ruling from the Tallinna Halduskohus (Republic of Estonia)) — Rakvere Lihakombinaat AS v Põllumajandusministeerium, Maksu- ja Tolliameti Ida maksu- ja tollikeskus (Common Customs Tariff — Combined Nomenclature — Tariff classification — Frozen cuts or offal of cocks and hens — Accession of Estonia — Transitional measures — Agricultural products — Surplus stocks — Regulation (EC) No 1972/2003)

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/5

         Judgment of the Court (Third Chamber) of 29 October 2009 (reference for a preliminary ruling from the Tallinna Halduskohus (Republic of Estonia)) — Rakvere Lihakombinaat AS v Põllumajandusministeerium, Maksu- ja Tolliameti Ida maksu- ja tollikeskus
   (Case C-140/08) (1)

   (Common Customs Tariff - Combined Nomenclature - Tariff classification - Frozen cuts or offal of cocks and hens - Accession of Estonia - Transitional measures - Agricultural products - Surplus stocks - Regulation (EC) No 1972/2003)
   2009/C 312/07
   Language of the case: Estonian

      Referring court

   Tallinna Halduskohus

      Parties to the main proceedings

      Applicant: Rakvere Lihakombinaat AS

      Defendants: Põllumajandusministeerium, Maksu- ja Tolliameti Ida maksu- ja tollikeskus

      Re:

   Reference for a preliminary ruling — Tallinna Halduskohus — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) and Article 4(1) and (2) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3) — Mechanically separated meat, frozen, obtained by mechanical deboning of fowls — Classification under heading 0207 14 10 (frozen cuts of fowls, boneless) or heading 0207 14 99 (frozen offal of fowls, other) of the Combined Nomenclature — Charge on surplus stocks of agricultural products held by operators — Determination of the amount of the transitional stock and the surplus stock for the purpose of that charge

      Operative part of the judgment

               1.

               Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003, must be interpreted as meaning that products such as those at issue in the main proceedings constituted of frozen mechanically separated meat obtained after the mechanical deboning of fowls and destined for human consumption must be classified in subheading 0207 14 10 of the Combined Nomenclature.

               2.

               Article 4(2) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004, does not preclude national legislation such as Article 6(1) of the Law on the surplus stock charge (Üleliigse laovaru tasu seadus), as amended by the Law of 25 January 2007, under which an operator’s surplus stock is determined by deducting from the stock actually held on 1 May 2004 the transitional stock defined as the average stock on 1 May of the previous four years of activity multiplied by a coefficient of 1.2 corresponding to the growth of agricultural production observed in the Member State in question during that four-year period.

               3.

               Regulation No 1972/2003 does not preclude the levying of a charge on an operator’s surplus stock even if he is able to prove that he obtained no advantage when marketing that stock after 1 May 2004.

      (1)  OJ C 171, 5.7.2008.


title: Case C-537/14 P: Appeal brought on 25 November 2014 by Debonair Trading Internacional Ld a against the judgment of the General Court (Third Chamber) delivered on 23 September 2014 in Case T-341/13: Groupe Léa Nature SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               13.4.2015

               EN

               Official Journal of the European Union

               C 118/12

         Appeal brought on 25 November 2014 by Debonair Trading Internacional Lda against the judgment of the General Court (Third Chamber) delivered on 23 September 2014 in Case T-341/13: Groupe Léa Nature SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-537/14 P)
   (2015/C 118/16)
   Language of the case: English

      Parties

      Appellant: Debonair Trading Internacional Lda (represented by: D. Selden, advocate, T. Alkin, barrister)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Groupe Léa Nature SA

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the decision annulling the decision of the Bord of Appeal;

               —

               Remit the case to the General Court for further consideration with a direction that the marks in issue are similar;

               —

               Order the Respondent to pay the costs both of the proceedings before the General Court and those before the Court of Justice.

      Pleas in law and main arguments

               1.

               The Appellant relies on two pleas in law, namely infringement of Articles 8(1)(b) and 8(5) CTMR (1). In summary the appellant submits that the General Court failed to apply settled case law in its analysis of the marks in issue with the result that it wrongly concluded that the marks are entirely dissimilar.

               2.

               First, having found the marks phonetically similar by virtue of the common element ‘so’, the General Court should have concluded that they were similar overall, at least to that extent. Its conclusion that they were dissimilar, despite the common phonetic element, was the result of a failure to apply settled case law on the nature and degree of similarity required for the application of Article 8(1)(b)/8(5).

               3.

               Secondly, having held the marks to be phonetically similar, the General Court should have concluded that they were also visually similar, for essentially similar reasons (and therefore a fortiori similar within the meaning of Article 8(1)(b)/8(5)). Its conclusion that they were visually dissimilar, despite the common visual element ‘so’, was the result of a failure to apply settled case law when analyzing the visual impact of the ‘so’ element within the marks.

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

      OJ L 78, p. 1.


title: Joined Cases T-305/06 to T-307/06: Judgment of the Court of First Instance of 15 October 2008 — Air Products and Chemicals v OHIM — Messer (Ferromix, Inomix and Alumix) (Community trade mark — Opposition proceedings — Applications for the Community word marks Ferromix, Inomix and Alumix — Earlier Community word marks FERROMAXX, INOMAXX and ALUMAXX — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/30

         Judgment of the Court of First Instance of 15 October 2008 — Air Products and Chemicals v OHIM — Messer (Ferromix, Inomix and Alumix)
   (Joined Cases T-305/06 to T-307/06) (1)

   (Community trade mark - Opposition proceedings - Applications for the Community word marks Ferromix, Inomix and Alumix - Earlier Community word marks FERROMAXX, INOMAXX and ALUMAXX - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2008/C 313/54)
   Language of the case: English
   Parties

      Applicant: Air Products and Chemicals, Inc. (Allentown, Pennsylvania, United States) (represented by: S. Heurung and C. Probst, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Laitinen and D. Botis, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Messer Group GmbH (Sulzbach, Germany) (represented by: W. Graf v. Schwerin and J. Schmidt, lawyers)
   Re:
   Actions brought against three decisions of the Second Board of Appeal of OHIM of 12 September 2006 (Joined Cases R 1270/2005-2 and R 1408/2005-2; R 1226/2005-2 and R 1398/2005-2; R 1225/2005-2 and R 1397/2005-2), concerning opposition proceedings between Air Products and Chemicals, Inc. and Messer Group GmbH.
   Operative part of the judgment
   The Court:

               1.

               Annuls the decisions of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 12 September 2006 (Joined Cases R 1270/2005-2 and R 1408/2005-2; R 1226/2005-2 and R 1398/2005-2; R 1225/2005-2 and R 1397/2005-2);

               2.

               Orders OHIM to bear its own costs and pay the costs of Air Products and Chemicals, Inc.;

               3.

               Orders Messer Group GmbH to bear its own costs.

      (1)  OJ C 326, 30.12.2006.


               25.2.2006

               EN

               Official Journal of the European Union

               C 48/45

         (2006/C 48/84)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 36, 11.2.2006

   Past publications

      OJ C 22, 28.1.2006

      OJ C 10, 14.1.2006

      OJ C 330, 24.12.2005

      OJ C 315, 10.12.2005

      OJ C 296, 26.11.2005

      OJ C 281, 12.11.2005

   These texts are available on:

               EUR-Lex:http://europa.eu.int/eur-lex

               CELEX:http://europa.eu.int/celex


title: Case T-221/12: Judgment of the General Court of 23 January 2014 — Sunrider v OHIM — Nannerl (SUN FRESH) (Community trade mark — Opposition proceedings — Application for the Community word mark SUN FRESH — Earlier Community, Benelux and national word and figurative marks SUNNY FRESH, SUNRIDER SUNNY FRESH and SUNNYFRESH — Relative ground for refusal — Proof of the genuine use of earlier marks — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/18

      Judgment of the General Court of 23 January 2014 — Sunrider v OHIM — Nannerl (SUN FRESH)
      (Case T-221/12) (1)

      (Community trade mark - Opposition proceedings - Application for the Community word mark SUN FRESH - Earlier Community, Benelux and national word and figurative marks SUNNY FRESH, SUNRIDER SUNNY FRESH and SUNNYFRESH - Relative ground for refusal - Proof of the genuine use of earlier marks - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
      (2014/C 71/31)
      Language of the case: English

         Parties

         Applicant: The Sunrider Corporation (Torrance, California, United States) (represented by: N. Dontas and E. Markakis, lawyers)

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

         Other party to the proceedings before the Board of Appeal of OHIM: Nannerl GmbH & Co. KG (Anthering bei Salzburg, Austria) (represented by: A. Thünken, lawyer)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of OHIM of 26 March 2012 (Case R 2401/2010-4), relating to opposition proceedings between The Sunrider Corporation and Nannerl GmbH & Co. KG.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders The Sunrider Corporation to pay the costs.

         (1)  OJ C 217, 21.7.2012.


title: Case T-146/97: Order of the General Court of 8 April 2011 — Bakkers v Council and Commission

text:
               11.6.2011

               EN

               Official Journal of the European Union

               C 173/15

         Order of the General Court of 8 April 2011 — Bakkers v Council and Commission
   (Case T-146/97) (1)

   2011/C 173/31
   Language of the case: Dutch
   The President of the Eighth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 199, 28.6.1997.


title: Case T-164/10: Action brought on 13 April 2010 — Pioneer Hi-Bred International v Commission

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/46

      Action brought on 13 April 2010 — Pioneer Hi-Bred International v Commission
      (Case T-164/10)
      (2010/C 161/74)
      Language of the case: English

         Parties

         Applicant: Pioneer Hi-Bred International, Inc. (Johnston, United States) (represented by: J. Temple Lang, Solicitor and T. Müller-Ibold, lawyer)

         Defendant: European Commission

         Form of order sought

                  —

                  find that the Commission has failed to act in accordance with Article 18 of Directive 2001/18 on the deliberate release into the environment of genetically modified organisms, in having failed to submit to the Council a draft of the measures to be taken pursuant to Article 5(2) of the Council decision, and having failed to take all other measures that may, depending on development of the decision making procedure, be necessary to ensure that the decision referred to in Article 18 of the directive is adopter;

                  —

                  order the Commission to pay the applicant’s costs.

         Pleas in law and main arguments

      On 2 May 2007, the applicant lodged its first application pursuant to Article 232 CE (1) claiming that the Commission had failed to act, in violation of Article 18 of Directive 2001/18/EC (2), to ensure the adoption of a decision concerning the applicant’s notification for the placing on the market of insect-resistant genetically modified maize 1507. On 21 January 2009, the Commission, under Article 5(2) of Decision 1999/468, submitted the proposal for a decision to the regulatory committee. In the framework of the proceedings before the Court, the parties agreed that, taking account of the submission of the proposal for a decision, the action became devoid of purpose and by the order of 4 September 2009 the Court decided that there was no need to adjudicate in Case T-139/07.
      In the present action the applicant claims, pursuant to Article 265 TFUE, that the Commission has still failed to make a proposal concerning a placing on the market of insect-resistant genetically modified maize 1507 to the Council despite the request of the applicant. The applicant argues that the Commission has failed to submit a draft decision on the applicant’s notification to any of the six meetings of the Environment Council that have been held since regulatory committee issued “no opinion” on the proposal on 25 February 2009.
      The applicant contends that under the procedure set out in the directive, the Commission is obliged to ensure that a decision on a notification is adopted and published within the period of time prescribed in the directive. The applicant furthermore submits that by failing to submit to the Council a draft of the measures to be taken the Commission failed to ensure that such a decision was adopted even though all requirements on the applicant and other parties under the directive had been completed in accordance with the directive.
      The applicant moreover submits that the Commission has been called upon to define its position within the terms of Article 265 TFUE which the Commission has failed to do. In the applicant’s opinion, the Commission’s reasons for its failure to submit a draft decision to the Council are irrelevant and unjustified. The Commission’s failure to act has, according to the applicant, had adverse effects on its legal situation and had caused it to sustain specific, proven and quantifiable loses.

         (1)  Case T-139/07, Pioneer Hi-Bred International v Commission, OJ 2007 C 155, p. 28

         (2)  Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC — Commission Declaration, OJ 2001 L 106, p. 1


title: Case F-35/11: Action brought on 4 April 2011 — ZZ v European Parliament

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/33

         Action brought on 4 April 2011 — ZZ v European Parliament
   (Case F-35/11)
   2011/C 211/67
   Language of the case: Slovak

      Parties

      Applicant(s): ZZ (represented by: J. Rybánsky, lawyer)

      Defendant: European Parliament

      Subject-matter and description of the proceedings

   Annulment of the decision of the defendant to grant the applicant only half of the installation allowance to which he should be entitled.

      Form of order sought

               —

               Annul the decision of the European Parliament (Individual Entitlements Unit) of 28 May 2010 on the grant of the installation allowance to the applicant in so far as it fixes the installation allowance at only one month’s basic salary and does not grant an installation allowance of two months’ basic salary;

               —

               Annul the decision of the Secretary-General of the European Parliament of 6 January 2011 which rejects the complaint lodged by the applicant under Article 90(2) of the Staff Regulations of Officials of the European Union;

               —

               Order the Parliament to pay the costs.


title: Case C-187/06: Action brought on  12 April 2006  — Commission of the European Communities v Kingdom of Belgium

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/10

         Action brought on 12 April 2006 — Commission of the European Communities v Kingdom of Belgium
   (Case C-187/06)
   (2006/C 154/22)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: J.-P. Keppenne, H. Van Vliet, Agents)

      Defendant: Kingdom of Belgium
   Form of order sought

               —

               declare that, by failing to execute within the prescribed period the Decision of 24 April 2002 (C(2002)1341 final) on the State aid implemented by Belgium for the Beaulieu group (Ter Lembeek International) (State Aid C 36/01, ex NN 73/00) (1), the Kingdom of Belgium has failed to fulfil its obligations under the fourth paragraph of Article 249 of the EC Treaty and Articles 2 and 3 of that Decision;

               —

               order the Kingdom of Belgium to pay the costs.

         Pleas in law and main arguments
   Nearly four years have passed since the Belgian authorities were notified of the Decision, yet the disputed aid has not, to date, actually been reimbursed by the beneficiary. The latter is still enjoying the benefits of using the funds, which is exactly what the Decision intended to put an end to.

      (1)  OJ 2002 L 296, p.60


title: Case T-216/09: Action brought on 27 May 2009 — Astrim and Elyo Italia v Commission

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/23

         Action brought on 27 May 2009 — Astrim and Elyo Italia v Commission
   (Case T-216/09)
   2009/C 167/45
   Language of the case: Italian

      Parties

      Applicants: Astrim SpA (Rome, Italy) and Elyo Italia Srl (Sesto San Giovanni, Italy) (represented by: M. Brugnoletti, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul the Commission’s decision which found to be incomplete the bid submitted by the applicant group in response to call for tenders No 2008 — C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre, (1) communicated by letter of 27 March 2009 and supplemented by a communication of 3 April 2009, together with all subsequent and related decisions, including the decision to award the tender to other undertakings.

               —

               In the alternative, annul point 17 of call for tenders No 2008 — C04 005, in so far as it laid down a general criterion for elimination from the tendering procedure.

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The applicants in this case seek the annulment of the decision by which the Commission eliminated the bid they submitted in response to call for tenders No 2008 — C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre and awarded the contract to other companies.
   The applicants put forward three grounds in support of their application:
   By the first ground, the applicants submit that the Commission infringed point 17 of the invitation to tender, Articles 92 and 89 of Council Regulation No 1605/2002 (2) and the principles of transparency and equal treatment in so far as it decided to exclude the applicants’ bid on the basis of the incorrect assessment that it was incomplete since a number of prices were not stated, whereas the applicant group deliberately chose to offer a price of zero.
   By their second ground, the applicants maintain that adequate reasons are not given for the elimination provision, in so far as point 17 of the invitation to tender does provide for automatic elimination where one part of the bid has not been completed but simply provides that elimination is possible, leaving the Commission free to decide whether or not to eliminate the tenderer. Since such a decision is discretionary, adequate reasons must be given for it, which was not the case as regards the elimination provision adopted by the Commission.
   By the third ground, which is relevant only in the event that the Court does not uphold the first two grounds, the applicants seek the annulment of point 17 of the invitation to tender on the ground that it infringes Articles 92 and 89 of Council Regulation No 1605/2002 in so far as that point lays down a general elimination criterion.

      (1)  OJ 2008/S 2008-274999 of 25 October 2008.

      (2)  Council Regulation No 1605/2002 (EC, Euratom) of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities.


title: JUDGMENT OF THE COURT of 13 February 1996 in Case C-143/93 (reference for a preliminary ruling from the Tariefcommissie, Amsterdam): Gebroeders van Es Douane Agenten BV v. Inspecteuer der Invoerrechten en Accijnzen (Effect of the repeal of a Council Regulation on a Commission Regulation concerning customs classification adopted on the basis of the former Regulation - Commission's discretionary powers when drawing up a classification Regulation)

text:
No C 133/2             EN                  Official Journal of the European Communities                                   4 . 5 . 96
               JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                      of 6 February 1996                                                  of 13 February 1996
in Case C-457/93 ( reference for a preliminary ruling from            in Case C-143/93 ( reference for a preliminary ruling from
the Bundesarbeitsgericht ): Kuratorium für Dialyse und                the Tariefcommissie, Amsterdam ): Gebroeders van Es
     Nierentransplantation e. V. v. Johanna Lewark (')                Douane Agenten BV v. Inspecteuer der Invoerrechten en
 (Indirect discrimination against women workers —                                                 Accijnzen (')
 Compensation for attendance at training courses providing             (Effect of the repeal of a Council Regulation on a
staff council members with the necessary knowledge for                 Commission Regulation concerning customs classification
                  performing their functions)                         adopted on the basis of the former Regulation —
                           ( 96/C 133/02 )                             Commission's discretionary powers when drawing up a
                                                                                classification Regulation)
                                                                                ( 96/C 133/03 )
                (Language of the case: German)
(Provisional translation; the definitive translation will be
                                                                                (Language of the case: Dutcb)
          published in the European Court Reports)
In Case C-457/93 : reference to the Court under Article 177
of the EC Treaty from the Bundesarbeitsgericht ( Federal              (Provisional translation; the definitive translation will be
Labour Court ) for a preliminary ruling in the proceedings                     published in the European Court Reports)
pending before that court between Kuratorium für Dialyse
und Nierentransplantation e . V. and Johanna Lewark — on
the interpretation of Article 119 of the EC Treaty and of
Council Directive 75/ 117/EEC of 10 February 1975 on the              In Case C- 143/93 : reference to the Court under Article 177
approximation of the laws of the Member States relating to            of the EC Treaty from the Tariefcommissie ( Administrative
the application of the principle of equal pay for men and             Court for Customs and Excise ), Amsterdam, for a
women ( OJ No L 45 , 1975 , p . 19 ) — the Court, composed            preliminary ruling in the proceedings pending before that
of G. C. Rodriguez Iglesias, President, C. N. Kakouris,               court between Gebroeders van Es Douane Agenten BV and
D. A. O. Edward , J. -P. Puissochet and G. Hirsch ( Presidents        Inspecteur der Invoerrechten en Accijnzen — on the
of Chambers ), G. F. Mancini, F. A. Schockweiler,                     interpretation and validity of Commission Regulation
J. C. Moitinho de Almeida , P. J. G. Kapteyn, C. Gulmann ,            ( EEC ) No 482/74 of 27 February 1974 on the classification
J. L. Murray ( Rapporteur ), P. Jann and H. Ragnemalm ,               of goods within subheading No 23.04 B of the Common
Judges; F. G. Jacobs, Advocate-General; H. A. Rühl ,                  Customs Tariff ( OJ No L 57, 1974, p . 23 ) — the
Principal Administrator, for the Registrar, has given a               Court, composed of G. C. Rodriguez Iglesias,
judgment on 6 February 1996 , in which is rules :                     President, C. N. Kakouris, G. Hirsch, G. F. Mancini,
                                                                      F. A. Schockweiler, J. C. Moitinho de Almeida ,
                                                                      P. J. G. Kapteyn, J. L. Murray ( Rapporteur ), P. Jann,
Where the category of part-time workers includes a much               H. Ragnemalm and L. Sevón, Judges; M. B. Elmer,
higher number of women than men , the prohibition of                 Advocate-General ; R. Grass, Registrar, has given a
indirect discrimination in the matter of pay, as set out in          judgment on 13 February 1996 , in which it rules :
Article 119 of the EC Treaty and in Council Directive
71 /1 1 7/EEC of 10 February 1975 on the approximation of
the laws of the Member States relating to the application of
the principle of equal pay for men and women, precludes
national legislation which, not being suitable and necessary         Since Commission Regulation (EEC) No 482/74 of
                                                                     27 February 1974 on the classification of goods within
for achieving a legitimate social policy aim, has the effect of
                                                                     subheading 23.04 B ofthe Common Customs Tariffwas not
limiting to their individual working hours the compensation
                                                                     amended by the Commission in accordance with the second
which staff council members employed on a part-time basis
                                                                     subparagraph of Article 15 ( 1 ) of Council Regulation
are to receive from their employer for attending training
                                                                     No 2658/87, it cannot be applied to declarations concerning
courses which impart the knowledge necessary for serving
                                                                     importations after 1 January 1988 inasmuch as that failure
on staff councils and are held during the full-time working
                                                                     to amend the former Regulation prevents individuals from
hours applicable in the undertaking but which exceed
                                                                     determining its precise scope.
their individual part-time working hours, when staff
council members employed on a full-time basis receive
compensation for attendance at the same courses on the
basis of their full-time working hours.                               (') OJ No C 135 , 14 . 5 . 1993 .
C ) OJ No C 43 , 12 . 2 . 1994 .


title: JUDGMENT OF THE COURT (Fifth Chamber) of 18 June 1998 in Case C-266/96 (reference for a preliminary ruling from the Tribunale di Genova): Corsica Ferries France SA v. Gruppo Antichi Ormeggiatori del Porto di Genova Coop. arl, Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl, Ministero dei Trasporti e della Navigazione (Freedom to provide services - Maritime transport - Undertakings holding exclusive rights - Mooring services for vessels in ports - Compliance with the competition rules - Tariffs)

text:
C 278/2               EN                  Official Journal of the European Communities                                       5.9.98
added tax on means of transport which constitute the very            5.7.1985, p. 40) Ð the Court (Sixth Chamber), composed
tool of their trade, the French Republic has failed to fulfil        of: H. Ragnemalm, President of the Chamber, G. F.
its obligations under the Sixth Council Directive 77/388/            Mancini, P. J. G. Kapteyn, J. L. Murray and K. M.
EEC of 17 May 1977 on the harmonisation of the laws of               Ioannou (Rapporteur), Judges; J. Mischo, Advocate-
the Member States relating to turnover taxes Ð Common                General; H. A. Rühl, Principal Administrator, for the
system of value added tax: uniform basis of assessment               Registrar, has given a judgment on 18 June 1998, in which
(OJ L 145, 13.6.1977, p. 1), and in particular Article 17(2)         it has ruled:
thereof Ð the Court (Sixth Chamber), composed of: R.
Schintgen, President of the Second Chamber, acting for the
President of the Sixth Chamber, G. F. Mancini, P. J. G.              Council Directive 85/337/EEC of 27 June 1985 on the
Kapteyn, J. L. Murray and G. Hirsch (Rapporteur),                    assessment of the effects of certain public and private
Judges; F. G. Jacobs, Advocate-General; D. Louterman-                projects on the environment is to be interpreted as not
Hubeau, Principal Administrator, for the Registrar, has              permitting Member States to waive the obligations
given a judgment on 18 June 1998, in which it:                       regarding environmental assessments in the case of
                                                                     projects listed in Annex I of the Directive where:
1. dismisses the application;                                        Ð the projects have already been the subject of a consent
                                                                          granted prior to 3 July 1988, the date by which the
                                                                          Directive was to have been transposed into national
2. order the Commission of the European Communities                       law,
     to pay the costs;
                                                                     Ð the consent was not preceded by an environmental
                                                                          assessment in accordance with the requirements of the
3. orders the United Kingdom of Great Britain and
                                                                          Directive and no use was made of it, and
     Northern Ireland to bear its own costs.
                                                                     Ð a fresh consent procedure was formally initiated after
(1) OJ C 95, 30.3.1996.
                                                                          3 July 1988.
                                                                     (1) OJ C 133, 4.5.1996.
              JUDGMENT OF THE COURT
                       (Sixth Chamber)
                                                                                JUDGMENT OF THE COURT
                        of 18 June 1998
                                                                                (Fifth Chamber)
in Case C-81/96 (reference for a preliminary ruling from                                     of 18 June 1998
the Nederlandse Raad van State): Burgemeester en wet-
houders van Haarlemmerliede en Spaarnwoude and                       in Case C-266/96 (reference for a preliminary ruling from
    Others v. Gedeputeerde Staten van Noord-Holland (1)              the Tribunale di Genova): Corsica Ferries France SA v.
                                                                     Gruppo Antichi Ormeggiatori del Porto di Genova Coop.
(Council Directive 85/337/EEC Ð New consent for a                    arl, Gruppo Ormeggiatori del Golfo di La Spezia Coop.
                          zoning plan)                                     arl, Ministero dei Trasporti e della Navigazione (1)
                         (98/C 278/03)                               (Freedom to provide services Ð Maritime transport Ð
                                                                     Undertakings holding exclusive rights Ð Mooring services
                                                                     for vessels in ports Ð Compliance with the competition
                (Language of the case: Dutch)                                                rules Ð Tariffs)
                                                                                (98/C 278/04)
  (Provisional translation; the definitive translation will be
         published in the European Court Reports)                                     (Language of the case: Italian)
                                                                       (Provisional translation; the definitive translation will be
In Case C-81/96: reference to the Court under Article 177                       published in the European Court Reports)
of the EC Treaty from the Nederlandse Raad van State
(Netherlands), for a preliminary ruling in the proceedings
pending before that court between Burgemeester en                    In Case C-266/96: reference to the Court under Article 177
wethouders van Haarlemmerliede en Spaarnwoude and                    of the EC Treaty from the Tribunale di Genova (District
Others and Gedeputeerde Staten van Noord-Holland Ð                   Court, Genoa) (Italy), for a preliminary ruling in the
on the interpretation of Council Directive 85/337/EEC of             proceedings pending before that court between Corsica
27 June 1985 on the assessment of the effects of certain             Ferries France SA and Gruppo Antichi Ormeggiatori del
public and private projects on the environment (OJ L 175,            Porto di Genova Coop. arl., Gruppo Ormeggiatori del
 ---pagebreak--- 5.9.98               EN                   Official Journal of the European Communities                                      C 278/3
Golfo di La Spezia Coop. arl, Ministero dei Trasporti e                             JUDGMENT OF THE COURT
della Navigazione Ð on the interpretation of Articles 3, 5,
30, 59, 85, 86 and Article 90(1) of the EC Treaty and of                                     (Sixth Chamber)
Council Regulation (EEC) No 4055/86 of 22 December                                           of 18 June 1998
1986 applying the principle of freedom to provide services
to maritime transport between Member States and                      in    Case   C-183/97: Commission of the European
between Member States and third countries (OJ L 378,                            Communities v. Portuguese Republic (1)
31.12.1986, p. 1) Ð the Court (Fifth Chamber),
composed of: C. Gulmann, President of the Chamber, M.                (Failure of a Member State to fulfil its obligations Ð
Wathelet (Rapporteur), J. C. Moitinho de Almeida, J.-P.                        Failure to transpose Directive 80/68/EEC)
Puissochet and L. Sevón, Jugdes; N. Fennelly, Advocate-
General; D. Louterman-Hubeau, Principal Administrator,                                        (98/C 278/05)
for the Registrar, has given a judgment on 18 June 1998,
in which it has ruled:
                                                                                (Language of the case: Portuguese)
1. Article 30 of the EC Treaty does not preclude
    legislation of a Member State, such as that at issue in
    this case, which requires shipping companies which
    are established in other Member States and whose                   (Provisional translation; the definitive translation will be
    vessels make port stops in the first-mentioned Member                      published in the European Court Reports)
    State to have recourse to the services of local mooring
    groups holding exclusive concession, for a charge
    higher than the actual cost of the service provided.
                                                                     In Case C-183/97: Commission of the European
                                                                     Communities (Agents: Francisco de Sousa Fialho and
2. The combined provisions of Articles 5, 85, 86 and
                                                                     Nicholas Khan) v. Portuguese Republic (Agents: Luís
    Article 90(1) of the EC Treaty do not preclude
                                                                     Fernandes and JoaÄo Lopes Fernandes) Ð application for a
    legislation of a Member State, such as that at issue in
                                                                     declaration that, by failing to adopt all the laws,
    this case,
                                                                     regulations and administrative provisions necessary to
                                                                     comply fully and properly with Council Directive 80/68/
    Ð which confers on undertakings established in that              EEC of 17 December 1979 on the protection of
        State an exclusive right to provide a mooring                groundwater against pollution caused by certain
        service,                                                     dangerous substances (OJ L 20, 26.1.1980, p. 43), in
                                                                     particular with Articles 8, 9, 10, 11 and 15 thereof, and,
    Ð which requires the service to be used at a price               in the alternative, by failing to inform the Commission of
        which, in addition to the actual cost of the service         such measures forthwith, the Portuguese Republic has
        provided, includes a supplement to cover                     failed to fulfil its obligations under Article 21(1) of that
        maintenance of universal mooring service, and                Directive Ð the Court (Sixth Chamber), composed of: H.
                                                                     Ragnemalm, President of the Chamber, R. Schintgen, G. F.
                                                                     Mancini, G. Hirsch and K. M. Ioannou (Rapporteur),
    Ð which provides for tariffs that vary from one port
                                                                     Judges; A. La Pergola, Advocate-General; R. Grass,
        to another in order to take into account each
                                                                     Registrar, has given a judgment on 18 June 1998, in which
        port's particular characteristics.
                                                                     it:
3. The provisions of Council Regulation (EEC) No 4055/
    86 of 22 December 1986 applying the principle of
    freedom to provide services to maritime transport                1. declares that, by failing to adopt, within the prescribed
    between Member States and between Member States                       period, all the laws, regulations and administrative
    and third countries and Article 59 of the EC Treaty do                provisions necessary to comply fully and properly with
    not preclude legislation of a Member State, such as                   Council Directive 80/68/EEC of 17 December 1979
    that at issue in this case, which requires shipping                   on the protection of groundwater against pollution
    companies established in another Member State, when                   caused by certain dangerous substances, in particular
    their vessels make port stops in the first Member State,              with Articles 8, 9, 10, 11 and 15 thereof, the
    to have recourse to the services which local mooring                  Portuguese Republic has failed to fulfil its obligations
    groups holding exclusive concessions supply for a                     under Article 21(1) of the Directive;
    charge. Such legislation, even if it constituted an
    impediment to freedom to provide maritime transport
    services, would, in fact, be justified by considerations
                                                                     2. orders the Portuguese Republic to pay the costs.
    of public security within the meaning of Article 56 of
    the EC Treaty.
                                                                     (1) OJ C 199, 28.6.1997.
( ) OJ C 336, 9.11.1996.
 1


title: Case C-337/15 P: Appeal brought on 6 July 2015 by the European Ombudsman against the judgment of the General Court (Fourth Chamber) delivered on 29 April 2015 in Case T-217/11 Staelen v European Ombudsman

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/42

         Appeal brought on 6 July 2015 by the European Ombudsman against the judgment of the General Court (Fourth Chamber) delivered on 29 April 2015 in Case T-217/11 Staelen v European Ombudsman
   (Case C-337/15 P)
   (2015/C 294/54)
   Language of the case: French

      Parties

      Appellant: European Ombudsman (represented by: G. Grill, acting as Agent)

      Other party to the proceedings: Claire Staelen

      Form of order sought

   Principally:

               —

               set aside the judgment of the General Court in Case T-217/11 in so far as it concludes that the Ombudsman committed several unlawful acts which constitute sufficiently serious infringements of EU law, that non-material damage was established and that there is a causal link between the unlawful acts identified by the General Court and that non-material damage, and in so far as it orders the Ombudsman to pay compensation amounting to EUR 7  000;

               —

               dismiss the application as unfounded in so far as the judgment of the General Court is set aside;

         In the alternative,

               —

               refer the case back to the General Court in so far as the judgment of the General Court is set aside; and

               —

               make an order as to costs in a fair and just way.

      Pleas in law and main arguments

   In support of its appeal, the Ombudsman invokes grounds alleging several errors of law.
   In the first place, it claims that the General Court erred in law by holding that a mere infringement of the principle of diligence sufficed for the purpose of establishing the existence of a sufficiently serious infringement. The Ombudsman considers that that reasoning of the General Court is not compatible with the case-law in the area of non-contractual liability, which requires a sufficiently serious breach of a rule of law intended to confer rights on individuals to be established and which states that the decisive test for finding that that requirement is fulfilled is whether the Community institution concerned manifestly and gravely disregarded the limits set on its discretion. The General Court omitted to take into account the specific nature of the function of the Ombudsman and in particular the fact that the latter has a very wide discretion with regard to the conduct of investigations.
   In the second place, the Ombudsman contests also the General Court’s interpretation relating to the fact that, when he conducts an investigation, and an institution gives him an explanation which appears to him to be credible, that does not exempt him from his duty to ascertain whether the facts on which that explanation is based are established, in particular where that explanation is the only basis for his finding that there is no maladministration. The Ombudsman considers that the institutions are required to provide it with correct information and that it is therefore reasonable that he base his findings on the information provided to him, as long as there is no evidence which could call into question the reliability of the information provided. From that point of view, the Ombudsman claims that there was no reason to fear that the information provided did not correspond with the facts.
   In the third place, although the Ombudsman agrees with the General Court that certain of the Ombudsman’s answers were made unreasonably late, the Ombudsman disputes that that infringement of European law which he is alleged to have committed may be classified as sufficiently serious. Consequently, the non-contractual liability of the EU cannot be triggered.
   In the fourth place, the Ombudsman considers that the General Court erred in law by failing to provide an explanation with regard to the classification of the damage to Mrs Staelen’s trust in the office of Ombudsman as non-material harm.
   In the last place, the Ombudsman contests the existence of a causal link between the irregularities he is alleged to have committed and the loss of Mrs Staelen’s confidence in the office of the Ombudsman.


title: Case C-111/04 P: Appealbrought on 3 March 2004 (fax of 25February 2004) by Adriatica di Navigazione SpA against the judgmentdelivered on 11 December 2003 by the Fifth Chamberof the Court of First Instance of the European Communities in Case T-61/99between Adriatica di Navigazione SpA and the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/27

         Appeal brought on 3 March 2004 (fax of 25 February 2004) by Adriatica di Navigazione SpA against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-61/99 between Adriatica di Navigazione SpA and the Commission of the European Communities
   (Case C-111/04 P)
   (2004/C 106/47)
   An appeal against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-61/99 between Adriatica di Navigazione SpA and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 3 March 2004 by Adriatica di Navigazione SpA, represented by Mario Siragusa and Francesca Maria Moretti.
   The appellant claims that the Court should:

               1 –

               Rectify the judgment in so far as it held that the erroneous definition of the relevant market did not have adverse consequences for Adriatica, recognising that the company was found, without an adequate statement of reasons, to have participated in an infringement which it did not commit in so far as it concerns a trade in which it did not take part;

               2 –

               Rectify the judgment in so far as it held that the overall conduct of Adriatica, following the meeting of 24 November 1993, was not such as validly to dissociate it for the purposes of exonerating it from liability for the collusive behaviour found to have taken place;

               3 –

               On the basis of the second plea in law set out below, rectify the judgment in so far as it confirms the duration of the infringement committed by Adriatica, reducing the period of the infringement ascribed to it;

               4 –

               On the basis of the first plea in law set out below, reduce the penalty imposed on Adriatica by the Court of First Instance;

               5 –

               On the basis of the first, second and third pleas in law set out below, reduce the penalty imposed on Adriatica in the light of the lesser gravity and shorter duration of the infringement committed by it;

               6 –

               In the alternative, and independently of the other pleas in law, rectify the judgment in so far as the Court of First Instance erred in calculating the reduction in the fine to be accorded to Adriatica, thereby reducing the fine;

               7 –

               Order the Commission to pay the costs at first instance and on appeal.

         Pleas in law and main arguments:

               —

               Infringement of Article 81 of the Treaty and erroneous application of the law in respect of the failure to assess the consequences, in Adriatica's case, of the incorrect definition of the relevant market given by the Commission;

               —

               Infringement of Article 81 of the Treaty and erroneous application of the law in the assessment of the existence of the requirements for the dissociation of Adriatica from the infringement;

               —

               Infringement of Article 81 of the Treaty and Article 19 of Regulation No 4056/86 (1) in determining the duration and gravity of the infringement ascribable to Adriatica;

               —

               In the alternative, infringement of Article 81 of the Treaty and Article 19 of Regulation No 4056/86 and a failure adequately to state reasons in determining the fine to be imposed on Adriatica.

      (1)  OJ 1986 L 378 of 31.12.1986, p. 4.


title: Case C-8/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Toscana (Italy) lodged on 2 January 2012 — Cristian Rainone and Others v Ministero dell’Interno and Others

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/21

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Toscana (Italy) lodged on 2 January 2012 — Cristian Rainone and Others v Ministero dell’Interno and Others
   (Case C-8/12)
   2012/C 73/37
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per la Toscana

      Parties to the main proceedings

      Applicants: Cristian Rainone, Orentino Viviani, Miriam Befani

      Defendants: Ministero dell’Interno, Questura di Prato, Questura di Firenze

      Questions referred

               1.

               Are Articles 43 EC and 49 EC to be interpreted as in principle precluding legislation of a Member State, such as Article 88 of the Testo unico delle leggi di pubblica sicurezza (Consolidated Law on public security; ‘the TULPS’), under which ‘a permit to organise betting may be granted exclusively to persons holding a licence or authorisation issued by a Ministry or another body to which the law reserves the right to organise and manage betting, and also to persons to whom that responsibility has been entrusted by the licence-holder or by the holder of an authorisation, by virtue of such licence or authorisation’, and Article 2(2b) of Decree-Law No 40 of 25 March 2010, converted by Law No 73/2010, under which ‘Article 88 of the (TULPS), which references to Royal Decree No 773 of 18 June 1931, as subsequently amended, is to be interpreted as meaning that the permit provided for therein, where it is granted for commercial businesses involving gaming and the collection of bets for cash prizes, shall be deemed to be effective only after the operators of those businesses have been granted the appropriate license to carry on such gaming and collect such bets by the Independent Authority for the Administration of State Monopolies of the Ministry of Economic and Financial Affairs’?

               2.

               Are Articles 43 EC and 49 EC to be interpreted as in principle also precluding national legislation, such as Article 38(2) of Decree-Law No 223 of 4 July 2006, converted by Law No 248/2006, under which ‘Article 1(287) of Law No 311 of 30 December 2004 shall be replaced by the following:
               “287.   By measures of the Ministry of Economic and Financial Affairs — Independent Authority for the Administration of State Monopolies — the new rules for distributing gambling on events other than horse racing shall be laid down in accordance with the following criteria:
               … (l) laying down the procedures for safeguarding licensees for the collection of bets at fixed odds on events other than horse racing governed by the regulations contained in Decree No 111 of 1 March 2006 of the Minister for Economic and Financial Affairs.”’
               The question whether Article 38(2) is compatible with Articles 43 EC and 49 EC relates, in particular, to the extent to which under Article 38(2) there is a general tendency to protect licences issued before the legal framework was amended and a number of restrictions and measures are provided for which could ultimately ensure de facto the maintenance of pre-existing commercial positions, as evidenced, for example, by the obligations to open new sales points at a distance from those already authorised. The question further relates to the general interpretation placed on Article 38(2) by the Independent Authority for the Administration of State Monopolies by inserting in licensing agreements a clause relating to lapse of the licence where analogous cross-border activities are engaged in directly or indirectly.

               3.

               If the answer is in the affirmative, that is to say that it considers compatible with Community law the national rules cited in the preceding paragraphs, is Article 49 EC to be interpreted further as meaning that, where the freedom to provide services is restricted for reasons in the public interest, consideration must be given in advance to whether sufficient account is not already taken of this public interest by the legal provisions, checks and investigations to which the service provider is subject in the State in which he is established?

               4.

               If the answer is in the affirmative, as set out in the preceding paragraph, must the referring court take account, in the context of its examination of the proportionality of a similar restriction, of the fact that the relevant provisions of the State in which the service provider is established provide for a degree of control which is equal to or actually exceeds that of the State in which the services are provided?


title: Plenary session

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/41

         Plenary session
   (2007/C 269/72)
   On 2 October 2007, the Court of First Instance decided, in accordance with the second subparagraph of Article 32(1) of the Rules of Procedure, that where, following the designation of an Advocate General pursuant to Article 17 of the Rules of Procedure, there is an even number of Judges in the Court of First Instance sitting in plenary session, the rota established in advance, applied during the period of three years for which the Presidents of the Chambers composed of five Judges are elected, in accordance with which the President of the Court is to designate the Judge who will not take part in the judgment of the case, shall be in reverse order to the order in which the Judges rank according to their seniority in office under Article 6 of the Rules of Procedure, unless the Judge who would thus be designated is the Judge-Rapporteur. In that event, it is the Judge ranking immediately above him who shall be designated.


title: Case T-414/06 P: Appeal brought on 27 December 2006 against the judgment of the Civil Service Tribunal delivered on 19 October 2006 in Case F-114/05, Philippe Combescot v Commission

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/42

         Appeal brought on 27 December 2006 against the judgment of the Civil Service Tribunal delivered on 19 October 2006 in Case F-114/05, Philippe Combescot v Commission
   (Case T-414/06 P)
   (2007/C 42/74)
   Language of the case: Italian
   Parties

      Appellant: Philippe Combescot (Lecce, Italy) (represented by A. Maritati and V. Messa, avvocati)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought by the appellant
   The appellant claims that the Court should:

               —

               reverse the judgment of the Civil Service Tribunal of 19 October 2006 in Case F-114/05 by declaring at the outset that the action is admissible in that it was brought in good time and in that it is based on the interest possessed by the official in obtaining judicial protection;

               —

               recognise that, on account of the measure adopted, Mr Philippe Combescot has suffered non-material damage, both to his health and to his image, with serious consequences for his mental stability;

               —

               order that Mr Combescot be paid the sum of EUR 150 000 by way of compensation for damage;

               —

               order the Commission to pay the costs and charges incurred in the proceedings.

         Pleas in law and main arguments
   The present appeal has been brought against the judgment of the Civil Service Tribunal of the European Union of 19 October 2006 in Case F-114/05, by which the action was declared to be inadmissible on the grounds that it had been brought out of time and that the applicant had no legal interest in bringing proceedings.
   In support of his claims, the appellant alleges:

               —

               misinterpretation of Article 92(2) of the Staff Regulations, with particular reference to the definition of the expression ‘rejected […] by implied decision’, in that the judgment under appeal — for the purposes of determining the time-limits for contesting the rejection — assimilated the express decision adopted within the time-limits, but not communicated, to the implied decision of rejection. According to the appellant, the judgment at first instance refrains from addressing the crucial issue in the dispute: an express decision of rejection, adopted within the time-limits laid down in the Staff Regulations, exists for all intents and purposes, even if it is not communicated to the person concerned.

               —

               aside from other considerations, in the case in question, the unacceptable delay in communicating the decision can in no way be imputed to the appellant. On this point, too, the Tribunal failed to carry out an adequate evaluation — even in terms of procedural correctness — of the contentions of the defendant concerning the difficulty of identifying the official's place of residence.

               —

               that, notwithstanding the fact that at the time of bringing the action the appellant had already retired, he had an interest in bringing proceedings to establish the unlawfulness of the transfer in question and he continues to possess such an interest, in that his application for compensation for non-material and professional damage is predicated upon establishing the unlawfulness of the contested measure.


title: Case T-352/13 P: Appeal brought on 2 July 2013 by BX against the judgment of the Civil Service Tribunal of 24 April 2013 in Case F-88/11 BX v Commission

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/39

         Appeal brought on 2 July 2013 by BX against the judgment of the Civil Service Tribunal of 24 April 2013 in Case F-88/11 BX v Commission
   (Case T-352/13 P)
   2013/C 252/67
   Language of the case: English

      Parties

      Appellant: BX (Washington, United States) (represented by: R. Rata, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               Set aside the judgment of Civil Service Tribunal of 24 April 2013, in Case F-88/11;

               —

               Annul the contested decision of the Selection Board not to include the name of the appellant on the reserve list of successful candidates in the competition EPSO/AD/148/09-RO (OJ 2009 C 14 A, p. 1); and

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on six pleas in law.

               1.

               First plea in law, alleging the Civil Service Tribunal’s finding (at paragraph 33 of its judgment) implying that the appellant did not meet the standard of proof is not applicable in the case at hand.

               2.

               Second plea in law, alleging that the Civil Service Tribunal made an error in law when stating that a candidate whose initial mark was below the passing mark in accordance with pre-established criteria, is not entitled to a comparative assessment (paragraph 41), as:

                           —

                           According to the settled case law, each and every candidate in an EPSO competition is entitled to a comparative assessment, irrespective of whether his/her initial result is above or below the passing mark;

                           —

                           The Selection Board did not fulfill its comparative assessment duty not only with respect to the appellant, but also with respect to all the other candidates in the oral test as the time reserved for the final evaluation session was manifestly insufficient; and

                           —

                           The judgment under appeal does not rely on the relevant arguments raised by the appellant and does not take into account the inconsistencies in the defendant's arguments.

               3.

               Third plea in law, alleging that the finding of the Civil Service Tribunal, at paragraph 45 of the judgment under appeal, according to which the principle of equal treatment has not been infringed, is incorrect.

               4.

               Fourth plea in law, alleging infringement of the rules concerning the composition of the Selection Board, as:

                           —

                           The Selection Board had an unbalanced composition (Article 3, fifth indent, of Annex III to the Staff Regulations of Officials of the European Union):

                                       —

                                       The Civil Service Tribunal committed an error in law when stating that it was not disputed that the Selection Board consisted of three members during the appellant’s oral test (paragraph 49 if the judgment under appeal);

                                       —

                                       The Civil Service Tribunal erroneously quoted the Bartha case (paragraph 49) so as to support its finding that the principle of balanced representation of men and women in the composition of the Selection Board has not been infringed.

                           —

                           The simultaneous presence of full and alternate members in the Selection Board at the oral tests that rendered the proceedings of the selection board unlawful in the case at hand (paragraph 50);

                           —

                           The infringement of the principle of the stable composition of the Selection Board (paragraph 51).

               5.

               Fifth plea in law, alleging that the Civil Service Tribunal erred in its decision that the circumstances of the present case do not warrant application of Article 87(2) of its Rules of Procedure (paragraph 81), since the defendant conceded that the rejection of the appellant's previous administrative complaints were based on an erroneous motivation and therefore the defendant should bear the costs.

               6.

               Sixth plea in law, alleging that the moral damages were justified.


title: Case T-53/13: Action brought on 31 January 2013 — Vans/OHIM (Line which slants and curves)

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/22

         Action brought on 31 January 2013 — Vans/OHIM (Line which slants and curves)
   (Case T-53/13)
   2013/C 101/47
   Language of the case: English

      Parties

      Applicant: Vans, Inc. (Cypress, United Sates) (represented by: M. Hirsch, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision in its entirety;

               —

               Order the defendant to pay the costs of the proceeding.

      Pleas in law and main arguments

      Community trade mark concerned: Figurative mark containing a device of a line which slants and curves for goods in classes 18 and 25 — Community trade mark application No 10 263 838

      Decision of the Examiner: Rejected the CTM application

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) and 7(3) of Council Regulation No 207/2009.


title: Case C-284/09: Action brought on 23 July 2009 — Commission of the European Communities v Federal Republic of Germany

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/8

         Action brought on 23 July 2009 — Commission of the European Communities v Federal Republic of Germany
   (Case C-284/09)
   2009/C 256/15
   Language of the case: German

      Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal and B.-R. Killmann, acting as Agents)

      Defendant: Federal Republic of Germany

      Form of order sought

               —

               Declare that, by taxing dividends paid to a company with its registered office in another Member State or in the European Economic Area at a higher rate than dividends paid to a company with its registered office in the Federal Republic of Germany, the Federal Republic of Germany has failed to fulfil its obligations under Article 56 EC where the minimum threshold for the parent company’s shareholdings in the share capital of the subsidiary set out in Directive 90/435 (1) is not reached, and, with regard to the Republic of Iceland and the Kingdom of Norway, under Article 40 of the Agreement on the European Economic Area.

               —

               order the Federal Republic of Germany to pay the costs.

      Pleas in law and main arguments

   The subject-matter of the present action is the German law on the taxation of dividends. The provisions of the German income tax law lay down that parent companies with unlimited tax liability in Germany can offset the withholding tax paid during the tax assessment procedure against their liability to corporation tax. Consequently, German parent companies were exempted from the withholding tax. Parent companies with limited tax liability in Germany, on the other hand, have the possibility of being fully exempted from the withholding tax only where the applicable minimum threshold for the relevant parent company’s shareholdings in the share capital of the subsidiary as set out in Directive 90/435 is reached. Below that minimum threshold it is not possible, under German law, for parent companies with limited tax liability to be exempted in the same way as companies with unlimited tax liability. As a result of that law, therefore, German dividend payments of parent companies from other Member States were treated for tax purposes differently from those of parent companies with unlimited tax liability in Germany.
   The Commission regards that discrimination as incompatible with the principle of the free movement of capital as tax payers resident in other Member States or in the EEA could, as a result, be dissuaded from making investments in Germany.
   It follows from the free movement of capital, which is guaranteed by the EC Treaty and the EEA Agreement, that, if a Member State grants advantages with regard to the taxation of dividends, those advantages cannot be restricted to domestic recipients of dividends. Fiscal discrimination between domestic recipients of dividends and those of other Member States or EEA States is prohibited; domestically granted tax advantages are to be extended also to shareholders from other Member States or EEA States. Where the relevant Member State has also, as in the present case, concluded a double taxation convention with the other Member States, that Member State may rely on that convention only if its rules concerning offsetting fully compensate the possible economic multiple taxation of shareholders from other Member States or EEA States, and in the same way as is guaranteed to domestic shareholders by its own tax system.
   That is not, however, the case with respect to the conventions concluded by Germany with the other Member States; in order to prevent double taxation, those conventions provide, indeed, for rules concerning offsetting the German withholding tax against the tax burden in the Member State of the parent company, however, the amount to be taken into account may not exceed the part of the tax assessed prior to the offset, which is imposed on income from Germany. The offset is consequently restricted, a refund of possible funds from the difference between the tax burden in the relevant Member State and the German withholding tax is not provided for in that convention and is therefore excluded.
   With regard to a possible justification of the present infringement, it should be noted that Germany has presented no overriding reason in the public interest in the course of the pre-litigation procedure which would be capable of justifying the contested tax system.

      (1)  Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6).