title: Appeal brought on 5 December 1996 by J. Antonissen against the order of the President of the Court of First Instance of the European Communities of 29 November 1996 in Case T-179/96 R between, on the one hand, J. Antonissen and, on the other hand, the Council of the European Union and the Commission of the European Communities (Case C-393/96 P[R])

text:
22 . 2 . 97             EN |                   Official Journal of the European Communities                                 No C 54/9
                  ORDER OF THE COURT                                      the Order was suspended with effect from 19 October
                         ( Fourth Chamber )                               1983 , he was authorized to conduct proceedings in his
                                                                          own name by decision of 23 February 1996 .
                      of 28 November 1996
in Case C- 11 9/96 P Susan Ryan-Sheridan v. European                      By orders of 5 December 1996 the Court ( Fifth Chamber )
Foundation for the Improvement of Living and Working                      ordered as follows :
                            Conditions (')
                                                                          1 . The appeals of Mr Orlando Lopes are inadmissible.
(Appeal — Officials — Employees of the European
Foundation for the Improvement of Living and Working
                                                                          2 . The cases shall he removed from the register of the
Conditions — Recruitment procedure — Rejection of an
                                                                               Court of Justice.
                         internal candidate)
                             ( 97/C 54/ 15 )                              (') ECR-SC 1996 II , p . 185 and p . 239 .
                (Language of the case: French)
  (Provisional translation; the definitive translation will he
          published in the European Court Reports)
                                                                          Appeal brought on 5 December 1996 by J. Antonissen
                                                                          against the order of the President of the Court of First
In Case C-l 19/96 P: Susan Ryan-Sheridan, an employee of                  Instance of the European Communities of 29 November
the European Foundation for the Improvement of Living                     1996 in Case T-l 79/96 R between, on the one hand, J.
and Working Conditions, represented by Marc-Albert                        Antonissen and, on the other hand, the Council of the
Lucas , of the Liege Bar, with an address for service in                  European Union and the Commission of the European
Luxembourg at the Chambers of Evelyne Korn , 21 Rue de                                               Communities
Nassau , — appeal against the judgment of the Court of
                                                                                ( Case C-393 /96 P1R1 )
First Instance (Third Chamber ) of 15 February 1996 in
Case T-589/93 Ryan-Sheridan v. European Foundation for                                               ( 97/C 54/ 17 )
the Improvement of Living and Working Conditions
[ 1996 ] ECR-SC 11-0000 , seeking to have that judgment set               An appeal against the order of the President of the Court
aside, the other party to the proceedings being European                  of First Instance of the European Communities of
Foundation for the Improvement of Living and Working                      29 November 1996 in Case T-l 79/96 R between , on the
Conditions ( Agents : Clive Purkiss, Terry Sheehan and                    one hand, J. Antonissen and , on the other hand, the
Denis     Waelbroeck ),        the  Court    ( Fourth    Chamber ),       Council of the European Union and the Commission of
composed of: J. L. Murray, President of the Chamber,                      the European Communities was brought before the Court
P. J. G. Kapteyn ( Rapporteur ) and H. Ragnemalm , Judges;                of Justice of the European Communities on 5 December
C. O. Lenz, Advocate-General; R. Grass, Registrar, made                   1996 by J. Antonissen, represented by PL . H. Pijnacker
an order on 28 November 1996 , the operative part of                      Hordijk, of the Amsterdam Bar, and M. T. P. J. van Oers,
which is as follows :
                                                                          of the Hague Bar, with an address for service in
                                                                          Luxembourg at the Chambers of L. Frieden, 62 Avenue
1 . The appeal is dismissed.                                              Guillaume .
2 . The appellant is ordered to pay the costs.                            The appellant claims that the Court should :
(') OJ No C 158 , 1 . 6 . 1996 .                                          — set aside the order of the President of the Court of
                                                                               First Instance of 29 November 1996 in Case T-179/
                                                                               96 R,
                                                                          — refer the case back to ( the President of) the Court of
                                                                               First Instance for judgment, and
                  ORDER OF THE COURT
                       of 5 December 1996
                                                                          — order the Council and the Commission to pay the
                                                                               costs .
in Joined Cases C-174/96 P and C-175/96 P Orlando
   Lopes v. Court of Justice of the European Communities                  Pleas in law and main arguments adduced in support:
                             ( 97/C 54/ 16 )
                                                                          — Breach of Article 186 of the EC Treaty and of the
                                                                               obligation to state reasons in that the President ruled,
Appeals against the judgments delivered on 29 February                         on incomprehensible and incorrect grounds, that the
1996 by the Court of First Instance of the European                            interim measures sought in part corresponded exactly
Communities in Cases T-547/93 and T-280/94 Lopes v.                            to the relief sought in the main application and in part
Court of Justice brought on 6 May 1996 ('), signed only                        amounted to a claim for payment in advance of
by Mr Orlando Lopes, accompanied by a certificate of the                       compensation for future and uncertain damage, and
General Council of the Order of Advocates of Portugal,                         thus did not constitute interim measures within the
according to which , although his entry in the register of                     meaning of Article 186 of the EC Treaty,
 ---pagebreak--- No C 54/ 10           EN                  Official Journal of the European Communities                                      22 . 2 . 97
— breach and/or incorrect application of Article 186 of              Communities on 10 December 1996 by Compagnie
    the EC Treaty in that the President ruled that the               Maritime Beige Transport NV and Compagnie Maritime
    interim measures sought could be granted only on the             Beige NV, represented by Messrs Michel Waelbroeck and
    basis of a definitive assessment of the facts and pleas          Denis Waelbroeck, of the Brussels Bar, with an address for
    in law put forward and that the application for those            service in Luxembourg at the Chambers of Maitre Ernest
    measures     could   therefore   be   dismissed    without       Arendt, 8-10 rue Mathias Hardt.
    considering the pleas in law and arguments put
    forward by the applicant in justification . Neither the          The appellants claim that the Court should:
    wording of Article 186 of the EC Treaty nor the
    relevant case-law justifies dismissing an application for        — quash the judgment of the CFI,
    interim measures on the sole ground that the interim             — annul the contested decision of the Commission,
    measures sought involve ( in part ) the granting of a
    sum of money (for damages ). The applicant had,                  — alternatively, if the decision of the Commission is
    moreover, . pointed out that under inter alia                          not annulled in its entirety, annul or, at the very
    Netherlands law it is possible in certain circumstances                least, reduce substantially the fine imposed on the
    to grant ( partial ) compensation in interlocutory                     appellants,
    proceedings ( as an interim measure ),
                                                                     — in any event, order the Commission and the
— breach of Article 186, of the obligation to state                        Interveners to pay the costs of the whole procedure .
    reasons and/or of the right to a fair hearing in that the
    President failed to consider whether other appropriate           Pleas in law and main arguments adduced in support:
    provisional measures might have been granted in order
                                                                     In the present appeal the appellants limit themselves to the
    to protect the applicant's interests,
                                                                     following points, namely:
— breach of Article 186 of the EC Treaty, of the                     — that none of the three alleged abuses which have been
    obligation to state reasons and of the right to a fair                 held against them by both the Commission and the
    hearing in that the President made the order without                   Court of First Instance can be characterized as such,
    allowing the applicant an opportunity to provide
    further clarification of his point of view orally.               — that the Court of First Instance was wrong in rejecting
                                                                           their arguments as to the collective assessment of their
                                                                           dominance,
                                                                     — that, at the very least, the fine should be substantially
                                                                           reduced,
Appeal brought on 10 December 1996 by Compagnie                      — that the appellants ' right to a fair hearing have been
Maritime Beige Transport NV and Compagnie Maritime                         infringed by the Court of First Instance,
Beige NV against the judgment delivered on 8 October
1996 by the Third Chamber, Extended Composition, of                  — that the Court of First Instance has infringed the
the Court of First Instance of the European Communities                    appellants' right to a strict interpretation of criminal
in Joined Cases T-24/93 between Compagnie Maritime                         law provisions .
Beige Transport NV and Compagnie Maritime Beige NV
and the Commission of the European Communities,                      In particular, the present appeal is based on the following
supported by Grimaldi and Cobelfret, T-25 /93 between                grounds :
Dafra Lines A/S and the Commission of the European
Communities, T-26/93 between Deutsche Afrika-Linien                  As to the first alleged abuse consisting in 'participating in
GmbH &C Co . and the Commission of the European                      the implementation of the Ogefrem Agreement and
Communities and T-28/93 between Nedlloyd Lijnen BV                   insisting repeatedly by a variety of means that it be strictly
    and the Commission of the European Communities                   complied with', the Appellants respectfully submit:
                      (Case C-395/96 P)                              ( a ) that the Court of First Instance in its judgment has not
                         ( 97/C 54/18 )                                    based itself on the previous accusations made by the
                                                                           Commission but on an entirely new accusation —
                                                                           never made before by the Commission, and not
An appeal against the judgment delivered on 8 October                      supported by the facts — and by doing so violated
1996 by the Third Chamber, Extended Composition, of                        their rights of defence and their right to a fair trial;
the Court of First Instance of the European Communities
in Joined Cases T-24/93 between Compagnie Maritime                   ( b ) that the judgment of the Court of First Instance is
Beige Transport NV and Compagnie Maritime Beige NV                         further affected by a manifest contradiction in
and the Commission of the European Communities,                            reasoning;
supported by Grimaldi and Cobelfret, T-25/93 between
Dafra Lines A/S and the Commission of the European                   (c ) that in any event, even if the original accusation had
Communities, T-26/93 between Deutsche Afrika-Linien                        not been changed by the Court of First Instance, the
GmbH & Co. and the Commission of the European                              alleged abuse cannot be held against the appellants;
Communities and T-28/93 between Nedlloyd Lijnen BV                         that the Court of First Instance has entirely ignored
and the Commission of the European Communities, was                        the various pleas put forward by the appellants in that
brought before the Court of Justice of the European                        respect .


title: Case C-434/00: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that court of 21 November 2000 in the criminal proceedings against G. Cuomo

text:
C 28/22                EN                     Official Journal of the European Communities                                     27.1.2001
Reference for a preliminary ruling by the Hoge Raad der                  3.    For the purposes of the application of criminal law, may
Nederlanden by judgment of that court of 21 November                           ‘leaves’ or ‘ceases to be covered’ also be taken to refer
   2000 in the criminal proceedings against G. Cuomo                           to the mere placing and transport of goods under a
                                                                               Community customs procedure where a third country, as
                                                                               referred to in the directive, is entered as the destination
                                                                               of that transport operation in the accompanying docu-
                         (Case C-434/00)                                       ments but the intention of placing the goods on the
                                                                               market in another Member State was present at the start
                                                                               of the transport operation?
                          (2001/C 28/42)
                                                                         (1) Council Directive 92/12/EEC of 25 February 1992 on the general
                                                                             arrangements for products subject to excise duty and on the
Reference has been made to the Court of Justice of the                       holding, movement and monitoring of such products (OJ 1992
European Communities by judgment of the Hoge Raad                            L 76, p. 1).
der Nederlanden (Supreme Court of the Netherlands) of                    (2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
21 November 2000, received at the Court Registry on                          harmonization of the laws of the Member States relating to
27 November 2000, for a preliminary ruling in the criminal                   turnover taxes — Common system of value added tax: uniform
proceedings against G. Cuomo on the following questions:                     basis of assessment (OJ 1977 L 145, p. 1).
1.   What is to be understood by ‘leaves’ or ‘ceases to be
     covered by’ (onttrekken) the external transit procedure
     within the meaning of the third subparagraph of Article
     5(1) of the Directive on products subject to excise duty (1)
     and of Article 7(3) of the Sixth Directive (2), where such
     leaving or cessation is irregular — that is to say, it occurs
     otherwise than by declaring the goods for release for free
     circulation:
                                                                         Action brought on 28 November 2000 by the Com-
                                                                         mission of the European Communities against the French
                                                                                Republic
     (a)   is it the first action in relation to the goods
           which contravenes a provision connected with that
           procedure, and is the presence of an intention to                                       (Case C-439/00)
           place the goods — partly by that action — on the
           Community market in breach of that provision
           relevant; or                                                                             (2001/C 28/43)
     (b) does it occur (only) when the goods — in this case              An action against the French Republic was brought before the
           after breaking the seal — are unloaded from the               Court of Justice on 28 November 2000 by the Commission of
           vehicle without satisfying the requirement to pro-            the European Communities, represented by Michel Nolin, of
           duce the goods together with the relevant document            its Legal Service, acting as Agent, with an address for service
           at the office of destination in accordance with Article       in Luxembourg at the office of Carlos Gómez de la Cruz,
           22(1) of Regulation (EEC) No 2726/90 (OJ 1990                 Wagner Centre, Kirchberg.
           L 262, p. 1), and is the presence of an intention to
           place the goods — partly by that action — on the
           Community market in breach of Community law                   The Commission of the European Communities claims that
           relevant; or                                                  the Court should:
     (c)   must ‘leaves’ or ‘ceases to be covered by’ be taken to        —     declare that, by failing to adopt all the laws, regulations
           refer to all the actions (taken together) resulting in              and administrative measures necessary in order to comply
           the goods being placed unlawfully on the Com-                       with Directive 98/4/EC of the European Parliament and
           munity market?                                                      of the Council of 16 February 1998 amending Directive
                                                                               93/38/EEC coordinating the procurement procedures of
                                                                               entities operating in the water, energy, transport and
                                                                               telecommunications sectors (1), or at all events by failing
2.   If the answer to the first question is as indicated in (c),               to communicate the same to the Commission, the French
     where does the ‘leaving’ or ‘cessation of coverage’ occur:                Republic has failed to comply with its obligations under
     where the first unlawful action is performed or where a                   that directive;
     subsequent action is performed, in particular where the
     goods — in this case after breaking the seal — are
     unloaded from the vehicle?                                          —     order the French Republic to pay the costs.


title: Case C-227/06: Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Articles 28 EC and 30 EC — Measures having equivalent effect — Construction products — Directive 89/106/EEC — Absence of harmonised standards — National marks of conformity — Presumption of conformity)

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/4

         Judgment of the Court (Third Chamber) of 13 March 2008 — Commission of the European Communities v Kingdom of Belgium
   (Case C-227/06) (1)

   (Failure of a Member State to fulfil its obligations - Articles 28 EC and 30 EC - Measures having equivalent effect - Construction products - Directive 89/106/EEC - Absence of harmonised standards - National marks of conformity - Presumption of conformity)
   (2008/C 116/07)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: B. Schima and B. Stromsky, acting as Agents)

      Defendant: Kingdom of Belgium (represented by: M. Wimmer, A. Hubert, L. Van den Broeck, acting as Agents, and F. de Montpellier and G. Block, lawyers)
   Re:
   Failure of a Member State to fulfil its obligations — Infringement of Articles 28 EC and 30 EC — National law imposing a de facto obligation for economic operators wishing to market in Belgium construction products lawfully produced and/or marketed in another Member State to obtain Belgian marks of conformity in order to market those products in Belgium
   Operative part of the judgment
   The Court:

               1.

               Declares that, by encouraging economic operators wishing to market in Belgium construction products lawfully manufactured and/or marketed in another Member State to obtain Belgian marks of conformity, the Kingdom of Belgium has failed to fulfil its obligations under Articles 28 EC and 30 EC.

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 165, 15.7.2006.


title: Case C-309/02: Reference for a preliminary ruling by the Verwaltungsgericht Stuttgart by order of that Court of 21 August 2002 in the case of 1. Radlberger Getränkegesellschaft mbH & Co., and 2. S. Spitz Kommanditgesellschaft against Land Baden-Württemberg; intervener: Federal Republic of Germany

text:
9.11.2002               EN                   Official Journal of the European Communities                                     C 274/17
Pleas in law and main arguments                                         Stuttgart (Stuttgart Administrative Court) of 21 August 2002,
                                                                        received at the Court Registry on 29 August 2002, for a
—     Error in law as regards application of the principle of           preliminary ruling in the case of 1. Radlberger Getränkege-
      sound administration: The appointing authority could              sellschaft mbH & Co., and 2. S. Spitz Kommanditgesellschaft
      not validly make a decision on the basis of a criterion           against Land Baden-Württemberg; intervener: Federal Republic
      which it itself, in the same administrative procedure, had        of Germany on the following questions:
      deemed unconvincing.
—     Error in law as regards determination of the requirements         1.    On a proper construction of Article 1(2) of European
      of the duty to provide reasons: There is nothing in the
                                                                              Parliament and Council Directive 94/62/EC of 20 Decem-
      contested decision to explain the change of direction                   ber 1994 on packaging and packaging waste (OJ 1994
      adopted by the appointing authority. The mere transfer                  L 365, p. 10) are Member States prohibited from
      of the holder of an office does not make it possible to
                                                                              favouring systems for reusing drinks packaging over
      ignore entirely the steps taken in a particular administrat-            recoverable non-refillable packaging where a Federal
      ive procedure by the authority itself. On the contrary, the             target for reusable packaging of 72 % is not reached by
      obligations under the duty to provide reasons require, in
                                                                              suspending the option of obtaining an exemption from a
      such circumstances, greater rigour in the explanations                  statutory return, disposal and deposit obligation in
      provided for the decision adopted.
                                                                              respect of empty non-refillable drinks packaging by
                                                                              participating in a return and disposal system for drinks
—     Error in law as regards the application of the principle of             sectors in which the proportion of reusable packaging
      equality and non-discrimination: The parameters utilised                has fallen below the level set in 1991?
      by the European Parliament changed to such an extent
      that its decisions, under the same legislative instrument,
      were rendered contradictory with regard to the solution
      offered to the heads of the information offices.                  2.    On a proper construction of Article 18 of Directive 94/
                                                                              62/EC are Member States prohibited from impeding the
—     Error in law as regards the conditions for the exercise of              placing of drinks in recoverable non-refillable packaging
      the right to a fair hearing: The rejection of the requests              on the market where a Federal target for reusable
      submitted by the appellant, both with regard to the                     packaging of 72 % is not reached by suspending the
      calling of witnesses and the production of documentary                  option of obtaining an exemption from a statutory return,
      evidence — in blatant contrast to the unsubstantiated                   disposal and deposit obligation in respect of empty non-
      statements by the European Parliament, at the hearing,                  refillable drinks packaging by participating in a return
      on the existence and relevance of certain documents,                    and disposal system for drinks sectors in which the
      without producing them — deprived the appellant of the                  proportion of reusable packaging has fallen below the
      opportunity to support in a conclusive manner its points                level set in 1991?
      of view and counter effectively the arguments put forward
      by the defendant institution.
                                                                        3.    On a proper construction of Article 7 of Directive 94/62/
( 1) OJ C 285, 7.10.2000, p. 17.                                              EC do producers and distributors of drinks sold in
                                                                              recoverable non-refillable packaging have a right to
                                                                              participate in an existing return and disposal system for
                                                                              used drinks packaging, in order to meet a statutory
                                                                              obligation to charge a deposit on non-refillable drinks
                                                                              packaging and to accept the return of used drinks
                                                                              packaging?
Reference for a preliminary ruling by the Verwaltungsge-
                                                                        4.    On a proper construction of Article 28 EC are the
richt Stuttgart by order of that Court of 21 August 2002
in the case of 1. Radlberger Getränkegesellschaft mbH &                       Member States prohibited from enacting regulations
Co., and 2. S. Spitz Kommanditgesellschaft against Land                       providing that where a Federal target for reusable packag-
Baden-Württemberg; intervener: Federal Republic of Ger-                       ing of 72 % is not reached the option of obtaining
                                many                                          an exemption from statutory return, management and
                                                                              deposit obligations in respect of empty non-refillable
                                                                              drinks packaging by participating in a return and disposal
                          (Case C-309/02)                                     system is to be suspended for drinks sectors in which the
                                                                              proportion of reusable packaging has fallen below the
                                                                              level set in 1991?
                          (2002/C 274/28)
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht


title: Case T-213/01: Action brought on 19 September 2001 by the Österreichische Postsparkasse against the Commission of the European Communities

text:
C 331/26              EN                     Official Journal of the European Communities                                        24.11.2001
Action brought on 19 September 2001 by the Österreichi-                The applicant claims that the contested decision infringes its
sche Postsparkasse against the Commission of the Euro-                  rights and is unlawful simply because the FPÖ is not an
                      pean Communities                                  applicant within the meaning of Article 3(2) of Regulation
                                                                        No 17 and Articles 6 and 7 of Regulation (EC) No 2842/98.
                                                                        The FPÖ does not have any justified interest in bringing the
                        (Case T-213/01)                                 procedure; it only has a political interest. Furthermore, it did
                                                                        not make its application before the procedure initiated by the
                                                                        defendant of its own motion, and it has exhausted or at least
                        (2001/C 331/42)                                 forfeited its right to make an application. Last but not least, by
                                                                        disclosing the objections, the defendant infringed Article 20 of
                                                                        Regulation No 17, and/or Article 287 EC, and the principle of
                  (Language of the case: German)                        the protection legitimate expectations.
                                                                        (1) Commission Regulation (EC) No 2842/98 of 22 December 1998
                                                                            on the hearing of parties in certain proceedings under Articles [81]
An action against the Commission of the European Communi-
                                                                            and [82] of the EC Treaty.
ties was brought before the Court of First Instance of the
European Communities on 19 September 2001 by the Österre-
ichische Postsparkasse represented by Rechtsanwälte M. Klus-
mann, F. Wiemer and A. Reidlinger.
The applicant claims that the Court should:
                                                                        Action brought on 19 September 2001 by the Bank
—     annul the defendant’s decision of 9 August 2001 in Case           für Arbeit und Wirtschaft Aktiengesellschaft against the
      COMP/36.571 — Austrian banks;                                              Commission of the European Communities
—     order the defendant to pay the costs.                                                       (Case T-214/01)
                                                                                (2001/C 331/43)
Pleas in law and main arguments
                                                                                (Language of the case: German)
In May 1997 the Commission, on the basis of information
potentially incriminating to various Austrian credit institutions
under cartel law, began Article 81 investigations under                 An action against the Commission of the European Communi-
Article 3(1) of Council Regulation No 17 into the applicant             ties was brought before the Court of First Instance of the
and seven other Austrian banks.                                         European Communities on 19 September 2001 by the Bank
                                                                        für Arbeit und Wirtschaft Aktiengesellschaft, Vienna, rep-
                                                                        resented by H.J. Niemeyer, with an address for services in
                                                                        Luxembourg.
In June 1997 the Freiheitliche Partei Österreichs (FPÖ) asked
the Commission to commence a procedure under Article 81
EC against eight Austrian banks suspected of entering into              The applicant claims that the Court should:
restrictive agreements.
                                                                        —     annul the defendant’s decision of 25 July 2001 in Case
                                                                              COMP/36.571 — Austrian banks;
In September 1999 the defendant sent the applicant a
statement of objections relating to infringement of Article 81
                                                                        —     order the defendant to pay the costs.
EC. The defendant later informed the applicant that it intended
to disclose to the FPÖ all the objections raised in the
proceedings under Article 7 of Regulation (EC) No 2842/98 (1).
The applicant objected to such disclosure, claiming it to be
impermissible.                                                          Pleas in law and main arguments
                                                                        The pleas in law and main arguments are the same as those in
In November 2000 the defendant sent the applicant a sup-
                                                                        Case T-213/01 (Österreichische Postsparkasse AG v Com-
plementary statement of objections and finally informed the
                                                                        mission, not yet published).
applicant in a contested decision that it intended to transmit
both statements of objections to the FPÖ. The applicant is
challenging that decision.


               26.11.2005

               EN

               Official Journal of the European Union

               C 296/40

         (2005/C 296/77)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 281, 12.11.2005

   Past publications

      OJ C 271, 29.10.2005

      OJ C 257, 15.10.2005

      OJ C 243, 1.10.2005

      OJ C 229, 17.9.2005

      OJ C 217, 3.9.2005

      OJ C 205, 20.8.2005

   These texts are available on:

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

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


title: Judgment of the Court (Fourth Chamber) of  8 December 2005  in Case C-445/04: Possehl Erzkontor GmbH v Hauptzollamt Duisburg (Common Customs Tariff — Tariff classification — Subheading 2519 90 10 — Fused magnesia obtained by fusion in an electric arc furnace of magnesite that has previously been caustic-burned — Fused magnesia)

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/15

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 8 December 2005
   in Case C-445/04: Possehl Erzkontor GmbH v Hauptzollamt Duisburg (1)

   (Common Customs Tariff - Tariff classification - Subheading 2519 90 10 - Fused magnesia obtained by fusion in an electric arc furnace of magnesite that has previously been caustic-burned - Fused magnesia)
   (2006/C 36/29)
   Language of the case: German
   In Case C-445/04: Reference for a preliminary ruling under Article 234 EC from the Finanzgericht (Finance Court) Düsseldorf (Germany), made by decision of 13 October 2004, received at the Court on 21 October 2004, in the proceedings Possehl Erzkontor GmbH v Hauptzollamt Duisburg — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; A. Tizzano, Advocate General; H. von Holstein, Deputy Registrar, gave a judgment on 8 December 2005, the operative part of which is as follows:
   Fused magnesia such as that at issue in the main proceedings comes under subheading 2519 90 10 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulations (EC) Nos 3115/94 of 20 December 1994, 1359/95 of 13 June 1995, 2448/95 of 10 October 1995 and 3009/95 of 22 December 1995.

      (1)  OJ C 314 of 18. 12. 2004.


title: Case T-607/16: Judgment of the General Court of 13 July 2017 — OZ v EIB (Civil service — EIB staff — Sexual harassment — Investigation procedure — Investigation Panel’s report — Decision of the President of the EIB not to act on the complaint — No unlawful conduct by the EIB — Liability)

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/45

         Judgment of the General Court of 13 July 2017 — OZ v EIB
   (Case T-607/16) (1)

   ((Civil service - EIB staff - Sexual harassment - Investigation procedure - Investigation Panel’s report - Decision of the President of the EIB not to act on the complaint - No unlawful conduct by the EIB - Liability))
   (2017/C 283/69)
   Language of the case: English

      Parties

      Applicant: OZ (represented by: B. Maréchal, lawyer)

      Defendant: European Investment Bank (EIB) (represented by: T. Gilliams, E. Raimond and G. Faedo, acting as Agents, and by A. Dal Ferro, lawyer)

      Re:

   Application under Article 270 TFEU seeking, first, annulment of the report of the Investigation Panel of the EIB of 14 September 2015 and the decision of the President of the EIB of 16 October 2015 not to act on the complaint of sexual harassment filed by the applicant and, second, compensation for the damage which the applicant claims to have suffered following that report and that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders OZ to pay the costs.

      (1)  OJ C 335, 12.9.2016 (case initially registered before the European Union Civil Service Tribunal as Case F-37/16 and transferred to the General Court of the European Union on 1 September 2016).


title: Case C-667/13: Request for a preliminary ruling from the Tribunal do Comércio de Lisboa (Portugal) lodged on 16 December 2013 — Portuguese State v Massa Insolvente do Banco Privado Português SA, em liquidação

text:
               29.3.2014

               EN

               Official Journal of the European Union

               C 93/19

         Request for a preliminary ruling from the Tribunal do Comércio de Lisboa (Portugal) lodged on 16 December 2013 — Portuguese State v Massa Insolvente do Banco Privado Português SA, em liquidação
   (Case C-667/13)
   2014/C 93/31
   Language of the case: Portuguese

      Referring court

   Tribunal do Comércio de Lisboa

      Parties to the main proceedings

      Applicant: Portuguese State

      Defendant: Massa Insolvente do Banco Privado Português SA, em liquidação

      Questions referred

               1.

               Is the Decision (1) vitiated by failure to state adequate reasons on the ground that:

                           (a)

                           it failed to state the reason why the guarantee provided by the Portuguese State affects trade between Member States?

                           (b)

                           it failed to specify the reason why the aid granted in the form of a guarantee, which was initially considered to be covered by Article 107(3) TFEU, was then declared to be incompatible with the common market?

               2.

               Is the Decision vitiated by a contradiction between its statement of reasons and its enacting terms as to the date from which the [aid] is to be considered unlawful: 5 December 2008 or 5 June 2009?

               3.

               Does the Decision infringe Article 107(1) TFEU, insofar as the aid granted did not affect trade between Member States, particularly in view of the purpose of the loan and the actual use made of it and the fact that the beneficiary has not carried out its activities since 1 December 2008?

               4.

               Does the decision infringe Article 107(3) TFEU, insofar as the aid was intended to remedy a serious disturbance in the economy of a Member State and, as such, is compatible with the common market?

               5.

               Do paragraphs 1 and 2 of Article 14 of Regulation 659/1999 (2) preclude, in this specific case, a reduction in the amount to be recovered, when that provision is applicable, without discrimination, to all creditors of the insolvent company?

      (1)  2011/346/EU: Commission Decision of 20 July 2010 on the State aid C-33/09 (ex NN 57/09, CP 191/09) implemented by Portugal in the form of a State guarantee to BPP (notified under document C(2010) 4932) — OJ 2011 L 159, p. 95.

      (2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty — OJ 1999 L 83, p. 1.


title: Case C-120/15: Order of the Court (Ninth Chamber) of 21 October 2015 (request for a preliminary ruling from the Krajský súd v Košiciach — Slovakia) — Kovozber s. r. o. v Daňový úrad Košice (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Value added tax (VAT) — Directive 2006/112/EC — Article 183 — Refund of excess VAT — National legislation prescribing that default interest relating to the refund of excess VAT is to be calculated only as from ten days after completion of a tax inspection)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/18

         Order of the Court (Ninth Chamber) of 21 October 2015 (request for a preliminary ruling from the Krajský súd v Košiciach — Slovakia) — Kovozber s. r. o. v Daňový úrad Košice
   (Case C-120/15) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Value added tax (VAT) - Directive 2006/112/EC - Article 183 - Refund of excess VAT - National legislation prescribing that default interest relating to the refund of excess VAT is to be calculated only as from ten days after completion of a tax inspection))
   (2016/C 038/26)
   Language of the case: Slovak

      Referring court

   Krajský súd v Košiciach

      Parties to the main proceedings

      Applicant: Kovozber s. r. o.

      Defendant: Daňový úrad Košice

      Operative part of the order

   The first paragraph of Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which prescribes that default interest relating to the refund of excess value added tax is to be calculated only as from ten days after completion of the tax inspection.

      (1)  OJ C 213, 29.6.2015.


title: Case C-430/14: Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 19 September 2014  — Valsts ieņēmumu dienests v Artūrs Stretinskis

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/22

         Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 19 September 2014 — Valsts ieņēmumu dienests v Artūrs Stretinskis
   (Case C-430/14)
   2014/C 421/32
   Language of the case: Latvian

      Referring court

   Augstākā tiesa

      Parties to the main proceedings

      Applicant: Valsts ieņēmumu dienests

      Defendant: Artūrs Stretinskis

      Questions referred

               1.

               Must Article 143(1)(h) of Commission Regulation No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 (2) establishing the Community Customs Code be interpreted as referring not only to situations in which the parties to the transaction are exclusively natural persons, but also to situations in which there is a family or kinship relationship between a director of one of the parties (a legal person) and the other party to the transaction (a natural person) or a director of that party (in the case of a legal person)?

               2.

               If the answer is affirmative, must the judicial body hearing the matter carry out an in-depth examination of the circumstances of the case in relation to the actual influence of the natural person concerned over the legal person?

      (1)  OJ 1993 L 253, p. 1.

      (2)  OJ 1992 L 302, p. 1.


title: Case C-290/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 28 April 2004 in the case of FKP Scorpio Konzertproduktionen GmbH against Finanzamt (Tax Office) Hamburg-Eimsbüttel

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/26

         Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 28 April 2004 in the case of FKP Scorpio Konzertproduktionen GmbH against Finanzamt (Tax Office) Hamburg-Eimsbüttel
   (Case C-290/04)
   (2004/C 228/54)
   Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court) (Germany) of 28 April 2004, received at the Court Registry on 7 July 2004, for a preliminary ruling in the case of FKP Scorpio Konzertproduktionen GmbH against Finanzamt Hamburg-Eimsbüttel on the following questions:

               1.

               Must Articles 59 and 60 of the EC Treaty be interpreted as meaning that they are infringed if a payment debtor established in Germany of a payment creditor established abroad within the Community (in this case: in the Netherlands), who holds the nationality of a Member State, can be held liable under the fifth sentence of Paragraph 50a(5) of the Einkommensteuergesetz 1990 in the version in force in 1993 (Law on Income Tax, hereinafter: ‘the EStG’) because he has failed to deduct tax at source pursuant to Paragraph 50a(4) of the EStG, whereas payments to a payment creditor liable without limitation to income tax in Germany (that is, a German resident) are not subject to any deduction of tax at source pursuant to Paragraph 50a(4) of the EStG and therefore no liability of the payment debtor for non-deduction or insufficient deduction of tax at source can arise?

               2.

               Is the answer to Question 1 different if, at the time of providing his service, the payment creditor established abroad within the Community is not a national of a Member State?

               3.

               If the answer to Question 1 is in the negative:

                           (a)

                           Are Articles 59 and 60 of the EC Treaty to be interpreted as meaning that business expenses incurred by a payment creditor established abroad within the Community and economically connected with his activities in Germany giving rise to the payments must be taken into account in reduction of tax by the debtor at the time of deducting tax at source pursuant to Paragraph 50a(4) of the EStG because, as is also the case with German residents, only the net income remaining after deduction of business expenses is subject to income tax?

                           (b)

                           Is it sufficient for the purpose of avoiding an infringement of Articles 59 and 60 of the EC Treaty if, in deducting tax at source pursuant to Paragraph 50a(4) of the EStG, only the business expenses economically connected with the activity in Germany giving rise to the claim for payment and which the payment creditor established abroad within the Community has reported to the payment debtor are taken into account in reduction of tax, and any further business expenses can be taken into account in a subsequent refund procedure?

                           (c)

                           Are Articles 59 and 60 of the EC Treaty to be interpreted as meaning that they are infringed if the tax exemption to which a payment creditor established in the Netherlands is entitled in Germany under the double taxation convention between the Federal Republic of Germany and the Kingdom of the Netherlands is initially disregarded in the deduction of tax at source pursuant to Paragraph 50a(4) in conjunction with Paragraph 50d(1) of the EStG and only allowed in a subsequent procedure for exemption or refund and the payment debtor is likewise not entitled to rely on the tax exemption in proceedings concerning liability, whereas German residents' tax-free income is not subject to any deduction of tax and therefore no liability for non-deduction or insufficient deduction of tax at source can arise either?

                           (d)

                           Are the answers to Questions 3(a) to (c) different if the payment creditor established abroad within the Community is not a national of a Member State at the time of providing his service?


title: Case T-203/10: Order of the General Court of 16 December 2011 — Stichting Woonpunt and Others v Commission (State aid — Scheme of aid granted by the Netherlands to housing corporations — Existing aid — Decision accepting Member State’s commitments — Decision declaring new aid compatible — Action for annulment — Not individually concerned — No interest in bringing proceedings — Inadmissibility)

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/24

         Order of the General Court of 16 December 2011 — Stichting Woonpunt and Others v Commission
   (Case T-203/10) (1)

   (State aid - Scheme of aid granted by the Netherlands to housing corporations - Existing aid - Decision accepting Member State’s commitments - Decision declaring new aid compatible - Action for annulment - Not individually concerned - No interest in bringing proceedings - Inadmissibility)
   2012/C 49/43
   Language of the case: Dutch

      Parties

      Applicants: Stichting Woonpunt (Beek, Netherlands); Stichting Com.wonen (Rotterdam, Netherlands); Woningstichting Haag Wonen (The Hague, Netherlands); and Stichting Woonbedrijf SWS.Hhvl (Eindhoven, Netherlands) (represented by: P. Glazener, E. Henny and T. Ottervanger, lawyers)

      Defendant: European Commission (represented by: H. van Vliet, S. Noë and S. Thomas, Agents, and by H. Gilliams, lawyer)

      Re:

   Application for annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations.

      Operative part of the order

               1.

               The action is dismissed as inadmissible;

               2.

               There is no need to adjudicate on the applications for leave to intervene of Vesteda Groep BV and the Netherlands Vereniging van Institutionele Beleggers in Vastgoed;

               3.

               Stichting Woonpunt, Stichting Com.wonen, Woningstichting Haag Wonen and Stichting Woonbedrijf SWS.Hhvl are ordered to bear their own costs and pay those incurred by the European Commission;

               4.

               Vesteda Groep and the Netherlands Vereniging van Institutionele Beleggers in Vastgoed, applicants for leave to intervene, are ordered to bear their own costs.

      (1)  OJ C 179, 3.7.2010.


title: Case T -504/09: Action brought on 16 December 2009 — Völkl v OHIM- Marker Völkl (VÖLKL)

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/47

         Action brought on 16 December 2009 — Völkl v OHIM- Marker Völkl (VÖLKL)
   (Case T -504/09)
   2010/C 37/68
   Language in which the application was lodged: German

      Parties

      Applicant: Völkl GmbH & Co. KG (Erding, Germany) (represented by: C. Raßmann, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Marker Völkl International GmbH (Baar, Switzerland)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 September 2009 in Case R 1387/2008-1;

               —

               Annul the decision of the Opposition Division of the Office for Harmonisation in the Internal Market of 31 July 2008 on the opposition proceedings No B 1 003 153, in so far as the opposition was upheld;

               —

               Refusal of the opposition;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Völkl GmbH & Co. KG

      Community trade mark concerned: the word mark ‘VÖLKL’ for goods in classes 3, 9, 18 and 25 (Application No 4 403 705)

      Proprietor of the mark or sign cited in the opposition proceedings: Marker Völkl International GmbH

      Mark or sign cited in opposition: the word mark ‘VÖLKL’ (international trade mark No 571 440) for goods in classes 18, 25 and 28

      Decision of the Opposition Division: Opposition upheld in part

      Decision of the Board of Appeal: Annulment of the decision given by the Opposition Division concerning the determination of a likelihood of confusion of the signs which are compared and the referral back to the Opposition Division for further action; Dismissal of the appeal in relation to the decision on proof of use preserving the rights held
   Pleas in law:

               —

               Infringement of the principle that the parties delimit the subject-matter of the proceedings (Article 74(1) of Regulation (EC) No 40/94), (1) on the ground that the Board of Appeal should not have referred the proceedings back to the Opposition Division concerning goods in relation to which the opposition was not raised;

               —

               Infringement of the prohibition of reformatio in pejus, on the ground that the Board of Appeal should not have referred the proceedings back to the Opposition Division concerning goods the registration of which the Opposition Division had already permitted;

               —

               Infringement of the right to be granted a fair hearing (Article 38(3) and Article 73(2) of Regulation No 40/94);

               —

               Infringement of Article 15(2)(a) and Article 43(2) and (3) of Regulation No 40/94 and Rule 22(2) of Regulation (EC) No 2868/95 (2), on the ground that the Board of Appeal erred in finding that the applicant has sufficiently proved that the opposition mark has been used in a manner which preserves its rights.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1)


title: Case C-299/03: Reference for a preliminary ruling by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen by order of that Court of 4 July 2003 in the administrative proceedings between Orthica BV against Bundesrepublik Deutschland, represented by the Federal Ministry of Consumer Protection, Nutrition and Agriculture; Intervener: the representative of the public interest at the Oberverwaltungsgericht für das Land Nordrhein-Westfalen

text:
C 275/24                EN                        Official Journal of the European Union                                       15.11.2003
Reference for a preliminary ruling by the Oberverwal-                                    No 178/2002 of the European Parliament and
tungsgericht für das Land Nordrhein-Westfalen by order                                   of the Council of 28 January 2002 laying down
of that Court of 4 July 2003 in the administrative                                       the general principles and requirements of food
proceedings between Orthica BV against Bundesrepublik                                    law, establishing the European Food Safety
Deutschland, represented by the Federal Ministry of                                      Authority and laying down procedures in mat-
Consumer Protection, Nutrition and Agriculture; Inter-                                   ters of food safety (OJ 2002 L 31, p. 1, ‘the
vener: the representative of the public interest at the                                  Basic Regulation’), or — once the period for
Oberverwaltungsgericht für das Land Nordrhein-                                           transposition expires on 31 July 2003 —
                             Westfalen                                                   according to Directive 2002/46/EC of the
                                                                                European Parliament and of the Council of
                                                                                10 June 2002 on the approximation of the
                          (Case C-299/03)                                                laws of the Member States relating to food
                                                                                supplements (OJ 2002 L 183, p. 51, ‘the Food
                                                                                Supplements Directive’), and if so according to
                          (2003/C 275/41)                                                which parts of the directive?
                                                                                b)   If the first and second paragraphs of Article 2,
                                                                                in conjunction with point (d) of the third
                                                                                paragraph of Article 2 of the Basic Regulation
Reference has been made to the Court of Justice of the                                   applies, the following question arises: is it the
European Communities by order of the Oberverwaltungsge-                                  case that it is no longer the product’s main
richt für das Land Nordrhein-Westfalen (Higher Administrative                            (objective) purpose that is the decisive factor,
Court for the Land of Nordrhein-Westfalen) of 4 July 2003,                               but rather that a product which meets the
received at the Court Registry on 11 July 2003, for a                                    criteria for both a food and a medicine is,
preliminary ruling in the administrative proceedings between                             legally speaking, always — and only — a
Orthica BV against Bundesrepublik Deutschland, represented                               medicinal product? How material for these
by the Federal Ministry of Consumer Protection, Nutrition and                            purposes is the type of product and how
Agriculture; Intervener: the representative of the public interest                       material the individual product?
at the Oberverwaltungsgericht für das Land Nordrhein-
Westfalen on the following questions:
                                                                               II.  a)   How is the term ‘pharmacological effect’, which
                                                                                is critical for the purposes of classification,
A.    1.    Is the contested product                                                     inter alia, under the first and second paragraphs
                                                                                of Article 2, in conjunction with point (d) of
                                                                                the third paragraph of Article 2 of the Basic
            ‘C 1000 (1 000 mg Vitamin C with bioflavonoid                                Regulation, to be defined for the purposes
            complex)’                                                                    of Community law? In particular, does the
                                                                                definition include a requirement that there be a
            a foodstuff (perhaps in the form of a food sup-                              health risk?
            plement) or a medicinal product? Is this finding
            binding on all the Member States?                                       b)   Now that Directive 2001/83/EC of the Euro-
                                                                                pean Parliament and of the Council of 6 Nov-
      2.    If the Court of Justice concludes that the product in                        ember 2001 on the Community code relating
            question is medicinal, but that in those Member                              to medicinal products for human use has,
            States where it has hitherto been regarded as a                              by the second sentence of Article 1(2) (on
            foodstuff it should continue to be a foodstuff, that                         ‘functional’ medicinal products), introduced the
            raises problems for the referring Chamber such as                            term ‘physiological functions’, the further ques-
            those underlying the questions in B VI, in conjunc-                          tion arises as to the meaning of that term and
            tion with those in B III. Reference is made to those                         its relation to the term ‘pharmacological effect’.
            questions and the observations thereon and an
            answer is requested.                                               III. Does the view expressed by the Court of Justice in
                                                                                Case 227/82 van Bennekom [1983] ECR 3883,
B.    In the event that — as has been the case hitherto — the                       paragraph 39 on the general classification of vitamin
      questions posed in section A above are to be answered                         preparations, in which it said that it must be possible
      not by the Court of Justice but by the national courts, the                   to import a product that may be marketed as a food
      replies are, in this Chamber’s view, needed to the                            in the Member State in which it was manufactured
      following questions:                                                          by the granting of a marketing authorisation if, even
                                                                                though it is regarded as a medicine in the Member
                                                                                State of import, a marketing authorisation is com-
      I.    a)    Is the contested product to be classified accord-                 patible with the requirements of health protection,
                  ing to the first and second paragraphs of                         also apply to the product at issue here, and does the
                  Article 2, in conjunction with point (d) of the                   Court of Justice adhere to its view in the light of
                  third paragraph of Article 2 of Regulation (EC)                   subsequent Community law?
 ---pagebreak--- 15.11.2003           EN                        Official Journal of the European Union                                          C 275/25
    IV. a)    In so far as the term ‘health risk’ is relevant to                  b)    because the product is not authorised as a
              the questions in sections II or III, or to other                          medicine?
              applicable Community law, such as Articles 28
              and 30 EC: Is the relevant threshold the ‘upper                VII. If the Court declines itself to reply to the questions
              safe level’ or should it be reduced, say, because                   posed in section A, may the national court then
              the substances in question are also ingested                        direct questions on the classification of products or
              with food and/or because — at least where                           indeed scientific or methodological questions to the
              they are taken long-term — regard may have                          European Food Authority and to what extent are
              to be had to the various consumer groups and                        any guidelines provided by that authority binding
              their different sensitivities? How are the words                    on the national court?
              ‘reference intakes for the population’ within the
              meaning of Article 5 of the Food Supplements
              Directive to be defined?
         b)   Is it an infringement of Community law for the
              specialist authorities to have a discretion under
              national law to determine (individual) upper
                                                                       Reference for a preliminary ruling by the Oberverwal-
              safe levels and any (individual) reductions that
                                                                       tungsgericht für das Land Nordrhein-Westfalen by order
              is subject to only limited review by the courts?
                                                                       of that Court of 3 July 2003 in the administrative
                                                                       proceedings between Orthica BV against Bundesrepublik
    V.   a)   If a product may be marketed in at least one             Deutschland, represented by the Federal Ministry of
              other Member State as a foodstuff, is the fact           Consumer Protection, Nutrition and Agriculture; Inter-
              that there is no ‘nutritional need’ for that             vener: the representative of the public interest at the
              product in Germany significant in terms of the           Oberverwaltungsgericht für das Land Nordrhein-
              freedom to market the product in Germany?                                           Westfalen
                                                                                (Case C-316/03)
         b)   If so, is it compatible with Community law
              for the authority to have a discretion under
              national law that is subject to only limited                                     (2003/C 275/42)
              review by the courts?
    VI. If in regard to the questions posed in section III the         Reference has been made to the Court of Justice of the
         Court confirms the judgment in van Bennekom and               European Communities by order of the Oberverwaltungsge-
         there is no incompatibility in this case with the             richt für das Land Nordrhein-Westfalen (Higher Administrative
         requirements of health protection, how can the                Court for the Land of Nordrhein-Westfalen) of 3 July 2003,
         request for marketing authorisation be successfully           received at the Court Registry on 24 July 2003, for a
         pursued? Can a decision of general application under          preliminary ruling in the administrative proceedings between
         Paragraph 47a of the LMBG be refused, without                 Orthica BV against Bundesrepublik Deutschland, represented
         Community law being infringed, on the basis that              by the Federal Ministry of Consumer Protection, Nutrition and
         in the German classification system a product is              Agriculture; Intervener: the representative of the public interest
         medicinal, whereas it can be marketed as a foodstuff          at the Oberverwaltungsgericht für das Land Nordrhein-
         in the Member State where it was manufactured? Is             Westfalen on the following questions:
         it compatible with Community law, and in particular
         Articles 28 and 30 EC, not to apply the rule in               A.    1.   Is the contested product
         Paragraph 47a of the LMBG to such medicinal
         products analogously? If not, can the German State,
                                                                                ‘OPC 85’
         without thereby infringing Community law, evade
         an obligation which a German court intends to
         impose on it to adopt a decision of general appli-                       a foodstuff (perhaps in the form of a food sup-
         cation under Paragraph 47a of the LMBG (applied                          plement) or a medicinal product? Is this finding
         analogously) if it, or the authority responsible for                     binding on all the Member States?
         food but not medicines, objects that because in
         the German classification system the product is                     2.   If the Court of Justice concludes that the product in
         medicinal no decision of general application under                       question is medicinal, but that in those Member
         Paragraph 47a of the LMBG (analogously) may be                           States where it has hitherto been regarded as a
         adopted,                                                                 foodstuff it should continue to be a foodstuff, that
                                                                                raises problems for the referring Chamber such as
                                                                                those underlying the questions in B VI, in conjunc-
         a)   because the body competent to adopt decisions                       tion with those in B III. Reference is made to those
              of general application under Paragraph 47a of                       questions and the observations thereon and an
              the LMBG is not competent for medicines also,                       answer is requested.


title: Case C-17/13: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 14 January 2013 — Alpina River Cruises GmbH and Nicko Tours GmbH v Ministero delle infrastrutture e dei trasporti — Capitaneria di Porto di Chioggia

text:
               23.3.2013

               EN

               Official Journal of the European Union

               C 86/10

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 14 January 2013 — Alpina River Cruises GmbH and Nicko Tours GmbH v Ministero delle infrastrutture e dei trasporti — Capitaneria di Porto di Chioggia
   (Case C-17/13)
   2013/C 86/17
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicants: Alpina River Cruises GmbH, Nicko Tours GmbH

      Defendant: Ministero delle infrastrutture e dei trasporti — Capitaneria di Porto di Chioggia

      Question referred

   Must Council Regulation (EEC) No 3577/92 of 7 December 1992 (1) be interpreted as applying to cruises carried out between ports within a Member State without different passengers embarking and disembarking in those ports, in that those cruises start and end with the same passengers embarking and disembarking in the same port within that Member State?

      (1)  Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7).


title: Case F-39/05: Judgment of the Civil Service Tribunal (Third Chamber) of 28 June 2006 –Beau v Commission (Occupational disease — Refusal to recognise the occupational origin of the applicant's disease)

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/33

         Judgment of the Civil Service Tribunal (Third Chamber) of 28 June 2006 –Beau v Commission
   (Case F-39/05) (1)

   (Occupational disease - Refusal to recognise the occupational origin of the applicant's disease)
   (2006/C 190/60)
   Language of the case: French
   Parties

      Applicant(s): Yolande Beau (Paris, France) (represented by: G. Vandersanden and L. Levi, lawyers)

      Defendant: Commission of the European Communities (represented by: J. Currall and K. Herrmann, agents, assisted by F. Longfils, lawyer)
   Re:
   Annulment of the decision of 3 August 2004 in which the Commission of the European Communities refused to accede to the request for recognition of the occupational origin of the applicant's disease and charging to her the fees and incidental costs of the doctor nominated by her and half of the fees and incidental costs of the third doctor
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the action.

               2.

               Orders each of the parties to bear its own costs.

      (1)  OJ C 205 of 20.08.2005 (case initially registered before the Court of First Instance of the European Communities under number T-215/05 and transferred to the European Civil Service Tribunal by order of 15.12.2005).


title: Case C-452/02: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 29 October 2002 in the case of Hauptzollamt Bremen against ITG GmbH Internationale Spedition

text:
C 55/8                EN                        Official Journal of the European Union                                            8.3.2003
Reference for a preliminary ruling by the Bundesfinanz-                 Action brought on 18 December 2002 by the Commission
hof by order of that Court of 29 October 2002 in the case               of the European Communities against the United
of Hauptzollamt Bremen against ITG GmbH Inter-                                                       Kingdom
                      nationale Spedition
                                                                                (Case C-458/02)
                        (Case C-452/02)
                                                                                (2003/C 55/16)
                         (2003/C 55/15)
Reference has been made to the Court of Justice of the                  An action against the United Kingdom was brought before the
European Communities by order of the Bundesfinanzhof                    Court of Justice of the European Communities on 18 December
(Federal Finance Court) of 29 October 2002, received at the             2002 by the Commission of the European Communities,
Court Registry on 12 December 2002, for a preliminary ruling            represented by K. Banks, acting as agent, with an address for
in the case of Hauptzollamt Bremen against ITG GmbH                     service in Luxembourg.
Internationale Spedition on the following questions:
1.    Is a customs debt on importation incurred under                   The applicant claims that the Court should:
      Article 203(1) of Regulation (EEC) No 2913/92 ( 1) where,
      contrary to instructions, goods in temporary storage are
      not presented to the original customs authority but to            —     declare that in providing for an exception to the right to
      another customs authority without having been placed                    equitable remuneration for performers and phonogram
      under the Community transit procedure required for their                producers where a phonogram published for commercial
      movement?                                                               purposes, or a reproduction of such phonogram, is used
                                                                              for any communication to the public (the exception
                                                                              concerning any communication to a non-paying audi-
2.    If Question 1 should be answered in the negative: In the                ence), the United Kingdom has failed to implement
      circumstances described in Question 1 is there a non-                   correctly Article 8(2) of Council Directive 92/100/EEC (1)
      fulfilment of an obligation that could result in the                    on rental right and lending right and on certain rights
      incurrence of a customs debt on importation under                       related to copyright in the field of intellectual property;
      Article 204(1)(a) of Regulation (EEC) No 2913/92?
                                                                        —     order the United Kingdom to pay the costs of this action.
3.    If Question 2 should be answered in the affirmative:
      (a)   Should Article 859, point 5, of Regulation (EEC)
            No 2454/93 (2) be interpreted as referring only to
            an unauthorised movement of goods that could                Pleas in law and main arguments
            have been authorised by the customs office, or does
            it mean any movement of goods at all?
      (b) Should Article 859, point 5, of Regulation (EEC)              The only permissible exceptions to both the producers’ and
            No 2454/93 be interpreted as meaning that the               performers’ right to obtain equitable remuneration under
            condition laid down in that provision, that the             Article 8 of Directive 92/100/EEC are provided for by
            goods in temporary storage can be presented to the          Article 10 of the directive. In the present context, the United
            customs authorities at their request, is fulfilled only     Kingdom can only rely upon limitations allowed under
            if the goods are presented again to the customs             Article 10(2) because the exceptions provided for under
            office where they were originally presented, or is the      paragraph 1 of the said provision are not pertinent.
            condition fulfilled even if the goods are presented
            again to another customs office in the same town
            which comes under the organisation of a different
                                                                        As to the application of the limitations allowed under
            customs authority?
                                                                        Article 10(2), it must be borne in mind that, pursuant to this
                                                                        provision, Member States may only provide for limitations
                                                                        with regard to the protection of performers to the extent that
( 1) OJ L 302, p. 1.                                                    they may lawfully do in connection with the protection of
( 2) OJ L 253, p. 1.                                                    copyright in literary and artistic works. It follows, however,
                                                                        from Article 11 bis (2) of the Berne Convention that domestic
                                                                        legislation shall not in any circumstances be prejudicial to the
                                                                        author’s right to obtain equitable remuneration.


title: Cases C-237/01 and C-238/01: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by order of that court of 18 June 2001 in the appeal concerning Ewald Feichtinger, Dr Dieter Cerha, the Salzburg District Commission, the Mayor of Salzburg and the land transfer agent of the Land of Salzburg

text:
C 227/14                EN                       Official Journal of the European Communities                                    11.8.2001
(2) Is Article 11(3) of Law No 448/98 compatible with                       tungssenat Salzburg of 18 June 2001, received at the Court
     Community law, inasmuch as it provides that interest on                Registry on 20 June 2001, for a preliminary ruling in the
     the sums to be reimbursed in so far as they exceed the                 appeal concerning Ewald Feichtinger, the Salzburg District
     sum provided for by Article 11(1) should be calculated                 Commission and the land transfer agent of the Land of
     according to the legal rate in force at the date on which              Salzburg (Case C-237/01), and Dr Dieter Cerha, the Mayor of
     that Law entered into force (2,5 % per annum) and not                  Salzburg and the land transfer agent of the Land of Salzburg
     according to the rate provided for by Article 5 with                   (Case C-238/01) on the following question:
     respect to Article 1 of Law No 29 of 26 January 1961, as
     subsequently amended?
                                                                            Are the provisions of Article 56 et seq. of the EC Treaty to be
                                                                            interpreted as precluding the application of Paragraphs 12, 36
(1) Official Journal, English Special Edition 1969 (II), p. 412.            and 43 of the Salzburger Grundverkehrsgesetz (Salzburg Land
                                                                            Transfer Law) of 1997 in the version published in LGBl.
                                                                            No 11/1999, whereby any person who wishes to acquire a
                                                                            building plot in the federal Land of Salzburg must comply
                                                                            with a notification or authorisation procedure in respect of the
                                                                            acquisition of that plot, with the consequence that one of the
Reference for a preliminary ruling by the Politierechtbank                  fundamental freedoms of the acquirer of title as guaranteed by
Te Mechelen (Local Criminal Court, Mechelen) by order                       the laws of the European Union has been infringed in this
of that court of 11 June 2001 in the case of Openbaar                       case?
                Ministerie against Hans Van Lent
                           (Case C-232/01)
                           (2001/C 227/24)
Reference has been made to the Court of Justice of the
European Communities by order of the Politierechtbank Te
Mechelen (Local Criminal Court, Mechelen) of 11 June 2001                   Action brought on 25 June 2001 by the Commission
received at the Court Registry an 18 June 2001, for a                       of the European Communities against the Kingdom of
preliminary ruling in the case of Openbaar Ministerie against                                           Sweden
Hans Van Lent on the following question:
                                                                                (Case C-247/01)
Do Community rules, in particular Article 39 EC (ex Article 48
of the EC Treaty) and Article 10 EC (ex Article 5 of the EC
Treaty), preclude a Member State from requiring registration                                        (2001/C 227/26)
of a vehicle belonging (1) to a leasing company established in
a neighbouring Member State, which is leased by an employer
and used by an employee (2) who is resident in the first-                   An action against the Kingdom of Sweden was brought before
mentioned Member State, at a distance of some 200 km from                   the Court of Justice of the European Communities on 25 June
his place of employment, in a situation where the employee in               2001 by the Commission of the European Communities,
question resides in the first-mentioned Member State (3) during             represented by Lena Ström, acting as Agent, with an address
the week and uses the vehicle in order to perform his contract              for service in Luxembourg.
of employment and also during his free time, including
weekends and holiday periods?                                               The Commission claims that the Court should:
                                                                            1.    declare that the Kingdom of Sweden has failed to fulfil its
                                                                                obligations both under the first sentence of Article 4(4)
                                                                                of Council Directive 79/409/EEC (1) of 2 April 1979 on
                                                                                the conservation of wild birds, most recently amended by
                                                                                Directive 97/49/EC (2), which was replaced by Article 6(3)
Reference for a preliminary ruling by the Unabhängiger                            and (4) of Council Directive (3) 92/43/EEC of 21 May
Verwaltungssenat Salzburg by order of that court of 18                            1992 on the conservation of natural habitats and of wild
June 2001 in the appeal concerning Ewald Feichtinger,                             fauna and flora, and under Articles 6(3) and 9(2) of
Dr Dieter Cerha, the Salzburg District Commission, the                            Directive 79/409/EEC,
Mayor of Salzburg and the land transfer agent of the Land
                              of Salzburg                                   2.    order the Kingdom of Sweden to bear the costs.
                 (Cases C-237/01 and C-238/01)
                                                                            Pleas in law and main arguments
                           (2001/C 227/25)
Reference has been made to the Court of Justice of the                      In accordance with the Treaty of Accession Sweden undertook
European Communities by order of the Unabhängiger Verwal-                   to fulfil the requirements of Council Directive 79/409/EEC of


title: Case T-170/17: Action brought on 20 March 2017 — RW v Commission

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/30

         Action brought on 20 March 2017 — RW v Commission
   (Case T-170/17)
   (2017/C 161/43)
   Language of the case: French

      Parties

      Applicant: RW (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               set aside the decision of 2 March 2017 whereby the applicant is automatically retired with effect from 1 June 2017;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging manifest infringement of Articles 47 and 52 of the Staff Regulations, in so far as the applicant had not yet reached the statutory retirement age at the time that the contested decision was adopted.

               2.

               Second plea in law, alleging failure to have regard to the scope of Article 42c of the Staff Regulations, in so far as the defendant was of the view that that provision applied to officials who, although having reached the retirement age (that is to say that they may apply for retirement without a reduction to their pension rights), have not yet reached the age at which the appointing authority is required to retire them (ex officio).

               3.

               Third plea in law, alleging infringement of the obligation to state reasons, since the defendant did not give any sufficient indication enabling the applicant or the General Court to review the merits of the statement that it had carried out an in-depth analysis of the needs of the Commission’s other services, whereby it concluded that a new post in one of those services corresponding to the applicant’s current skills could not be provided for.


title: Case C-3/12: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 2 January 2012 — Syndicat OP 84 v Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR) venant aux droits de l’ONIFLHOR

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/12

         Reference for a preliminary ruling from the Conseil d’État (France) lodged on 2 January 2012 — Syndicat OP 84 v Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR) venant aux droits de l’ONIFLHOR
   (Case C-3/12)
   2012/C 89/19
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Appellant: Syndicat OP 84

      Respondent: Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR) venant aux droits de l’ONIFLHOR

      Questions referred

               1.

               Must the ‘scrutiny period’ from 1 July of one year to 30 June of the following year, as referred to in Article 2(4) of Council Regulation No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the EAGGF, (1) be understood as the period during which the authorities responsible for the scrutiny must inform the producer organisation of the planned inspection, and commence and complete the scrutiny procedure in its entirety on-site and on paper and communicate the results of that scrutiny, or must it be understood as the period during which only some of those procedural steps have to be carried out?

               2.

               Where the conduct or the shortcomings of the producer organisation make it impossible to carry out effectively an inspection initiated during one scrutiny period, may the authorities — despite the absence of express provision to that effect in [Regulation No 4045/89] — carry out the scrutiny procedure during the subsequent scrutiny period, without causing the procedure to be vitiated by a defect which the organisation under scrutiny could rely on against the decision setting out the inferences to be drawn from the findings of that inspection?

               3.

               If the previous question falls to be answered in the negative, may the authorities, where the conduct or the shortcomings of the producer organisation make an effective scrutiny impossible, require repayment of the financial assistance received? Does such a measure constitute one of the penalties for which provision may be made pursuant to Article 6 of [Regulation No 4045/89]?

      (1)  Council Regulation (EEC) No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund and repealing Directive 77/435/EEC (OJ 1989 L 388, p. 18).


title: Case T-130/06: Order of the Court of First Instance of 25 June 2007 — Drax Power and Others v Commission (Application for annulment — Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Proposed amendment to national allocation plan — Refusal by the Commission — Inadmissibility)

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/33

         Order of the Court of First Instance of 25 June 2007 — Drax Power and Others v Commission
   (Case T-130/06) (1)

   (Application for annulment - Environment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - Proposed amendment to national allocation plan - Refusal by the Commission - Inadmissibility)
   (2007/C 211/65)
   Language of the case: English
   Parties

      Applicants: Drax Power Ltd (Selby, United Kingdom); Great Yarmouth Power Ltd (Swindon, United Kingdom); International Power plc (London, United Kingdom); Npower Cogen Ltd (Swindon); RWE Npower plc (Swindon); ScottishPower Generation Ltd (Glasgow, United Kingdom); and Scottish and Southern Energy plc (Perth, United Kingdom) (represented by: I. Glick, QC, and M. Cook, Barrister)

      Defendant: Commission of the European Communities (represented by U. Wölker and X. Lewis, acting as Agents)
   Re:
   Application for annulment of Commission Decision C(2006) 426 final of 22 February 2006 concerning the proposed amendment to the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC of the European Parliament and of the Council
   Operative part of the order

               1.

               The application is dismissed as inadmissible.

               2.

               The applicants are to bear their own costs and pay those incurred by the Commission.

      (1)  OJ C 165, 15.7.2006.


title: Judgment of the Court of First Instance of 17 March 2005 in Case T-195/98 Ettlin Gesellschaft für Spinnerei und Weberei AG and Others v Council of the European Union (Dumping — Failure by the Council to adopt a Commission proposal for a regulation imposing a definitive anti-dumping duty — Absence of simple majority necessary for the adoption of a regulation — Obligation to state reasons)

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/22

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 17 March 2005
   in Case T-195/98 Ettlin Gesellschaft für Spinnerei und Weberei AG and Others v Council of the European Union (1)

   (Dumping - Failure by the Council to adopt a Commission proposal for a regulation imposing a definitive anti-dumping duty - Absence of simple majority necessary for the adoption of a regulation - Obligation to state reasons)
   (2005/C 132/41)
   Language of the case: English
   In Case T-195/98: Ettlin Gesellschaft für Spinnerei und Weberei AG and Others, established in Ettlingen (Germany), Textil Hof Weberei GmbH & Co. KG, established in Hof (Germany), Spinnweberei Uhingen GmbH, established in Uhingen (Germany), F. A. Kümpers GmbH & Co., established in Rheine (Germany), Tenthorey SA, established in Eloyes (France), Les tissages des héritiers de G. Perrin — Groupe Alain Thirion (HGP-GAT Tissages), established in Thiéfosse (France), Établissements des fils de Victor Perrin SARL, established in Thiéfosse (France), Filatures & tissages de Saulxures-sur-Moselotte, established in Saulxures-sur-Moselotte (France), Tissage Mouline Thillot, established in Le Thillot (France), Filature Niggeler & Küpfer SpA, established in Capriolo (Italy), Standardtela SpA, established in Milan (Italy), Verlener Textilwerk, Grimmelt, Wevers & Co. GmbH, established in Velen (Germany), represented by C. Stanbrook, QC, and A. Dashwood, Barrister, against Council of the European Union (Agent: S. Marquardt, assisted by G.M. Berrisch, lawyer) supported by United Kingdom of Great Britain and Northern Ireland (Agent: initially M. Ewing, subsequently K. Manji) — action for annulment of the Council's decision of 5 October 1998 to reject the Commission's proposal for a Council Regulation (EC) imposing definitive anti-dumping duties on imports of certain unbleached cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia and Pakistan, definitively collecting the provisional duty imposed by Commission Regulation (EC) No 773/98 of 7 April 1998 (OJ 1998 L 111, p. 19) and terminating the anti-dumping proceeding in respect of imports of these fabrics originating in Turkey, submitted by the Commission of the European Communities on 21 September 1998 (document COM (98) 540 final) — the Court of First Instance (Fourth Chamber, Extended Composition), composed of H. Legal, President, P. Lindh, P. Mengozzi, I. Wiszniewska-Białecka and V. Vadapalas, Judges; H. Jung, Registrar, gave a judgment on 17 March 2005, in which it:

               1.

               Annuls the Council's decision of 5 October 1998 to reject the Commission's proposal for a Council Regulation (EC) imposing definitive anti-dumping duties on imports of certain unbleached cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia and Pakistan, definitively collecting the provisional duty imposed by Regulation (EC) No 773/98 (OJ 1998 L 111, p. 19) and terminating the anti-dumping proceeding in respect of imports of these fabrics originating in Turkey, submitted by the Commission of the European Communities on 21 September 1998 (document COM (98) 540 final).

               2.

               Orders the Council of the European Union to pay the costs.

               3.

               Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

      (1)  OJ C 160 of 5.6.1999.