title: Case C-465/11: Judgment of the Court (Third Chamber) of 13 December 2012 (request for a preliminary ruling from the Krajowa Izba Odwoławcza — Poland) — Forposta SA, ABC Direct Contact sp. z o.o. v Poczta Polska SA (Directive 2004/18/EC — Article 45(2), first subparagraph, point (d) — Directive 2004/17/EC — Articles 53(3) and 54(4) — Public procurement — Postal services sector — Exclusion criteria in relation to the procedure for the award of a contract — Grave professional misconduct — Protection of the public interest — Maintenance of fair competition)

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/8

         Judgment of the Court (Third Chamber) of 13 December 2012 (request for a preliminary ruling from the Krajowa Izba Odwoławcza — Poland) — Forposta SA, ABC Direct Contact sp. z o.o. v Poczta Polska SA
   (Case C-465/11) (1)

   (Directive 2004/18/EC - Article 45(2), first subparagraph, point (d) - Directive 2004/17/EC - Articles 53(3) and 54(4) - Public procurement - Postal services sector - Exclusion criteria in relation to the procedure for the award of a contract - Grave professional misconduct - Protection of the public interest - Maintenance of fair competition)
   2013/C 38/09
   Language of the case: Polish

      Referring court

   Krajowa Izba Odwoławcza

      Parties to the main proceedings

      Applicants: Forposta SA, ABC Direct Contact sp. z o.o.

      Defendant: Poczta Polska SA

      Re:

   Request for a preliminary ruling — Krajowa Izba Odwoławcza — Interpretation of point (d) of the first subparagraph of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) and of Articles 53(3) and 54(4) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1) — Grounds justifying the exclusion of an economic operator from participation in the tendering procedure — Concept of ‘grave professional misconduct’ — National legislation which obliges the contracting authority to exclude a tenderer with which that authority concluded a contract which it terminated in the three-year period prior to the award procedure on the ground of non-performance relating to at least 5 % of the value of the contract.

      Operative part of the judgment

               1.

               Point (d) of the first subparagraph of Article 45(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as precluding national legislation which provides that a situation of grave professional misconduct, which leads to the automatic exclusion of the economic operator at issue from a procedure for the award of a public contract in progress, arises where the contracting authority concerned has annulled, terminated or renounced a public contract with that same economic operator owing to circumstances for which that operator is responsible, where the annulment, termination or renouncement occurred in the three-year period before the procedure was initiated and the value of the non-performed part of the contract amounted to at least 5 % of the contract’s value.

               2.

               The principles or rules of European Union public procurement law does not allow, on the grounds of the protection of the public interest, the legitimate interests of the contracting authorities or the maintenance of fair competition between economic operators, national legislation, such as that at issue in the main proceedings, requiring the contracting authorities to automatically exclude an economic operator from a procedure for the award of a public contract in a situation such as that referred to in the reply to the first question referred for a preliminary ruling.

      (1)  OJ C 13, 14.1.2012.


title: Case T-494/10: Action brought on 7 October 2010 — Bank Saderat Iran v Council

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/55

         Action brought on 7 October 2010 — Bank Saderat Iran v Council
   (Case T-494/10)
   ()
   2010/C 328/84
   Language of the case: English

      Parties

      Applicant: Bank Saderat Iran (Tehran, Iran) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Anderson, QC and R. Blakeley, Barrister)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul paragraph 5 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 (1) in so far as it relates to the applicant;

               —

               annul paragraph 7 of Table B of Annex II to Council Decision 2010/413/CFSP (2) in so far as it relates to the applicant;

               —

               order the Council to pay the costs of the application.

      Pleas in law and main arguments

   In the present case the applicant seeks the partial annulment of Council Implementing Regulation No 668/2010 and of Council Decision 2010/413/CFSP in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision.
   The three pleas in law relied on by the applicant are identical or similar to the first, second and fifth pleas relied on in Case T-492/10 Melli Bank v Council.

      (1)  Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

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


title: Case F-99/07: Action brought on 28 September 2007 — Bernard v Europol

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/55

         Action brought on 28 September 2007 — Bernard v Europol
   (Case F-99/07)
   (2008/C 22/107)
   Language of the case: Dutch
   Parties

      Applicant: Marjorie Bernard (Woerden, Netherlands) (represented by: P. de Casparis, lawyer)

      Defendant: European Police Office (Europol)
   Form of order sought

               —

               Annul the decision of 26 June 2007, notified on 28 June 2007, concerning the complaint, and the assessments of 5 February 2007 and 25 July 2007;

               —

               Order Europol:

                           —

                           to grant the applicant an increase in monthly salary with effect from 1 September 2006, together with interest;

                           —

                           to pay damages in the amount of EUR 7 500 net;

               —

               Order Europol to pay the costs.

         Pleas in law and main arguments
   The present proceedings relate to the assessment of the applicant's work during the period from 1 September 2005 to 31 August 2006. The applicant's work was assessed as a ‘2’, which corresponds to the criterion ‘does not entirely meet the standard required’.
   The applicant made a complaint concerning the assessment and the lack of any decision regarding the award of an increase in monthly salary and, in that context, she relied on the assessment guidelines in force in Europol. The applicant submits that the assessment is manifestly incorrect.
   The applicant submits in particular that her complaints were declared unfounded by a decision of 26 June 2007 and alleges breach of the principle of the duty to state reasons since no reasons were stated for that decision. Nevertheless, the Director of Europol points out that the assessment was withdrawn and that a fresh assessment was to be made. That assessment took place on 25 July 2007.
   The present action therefore relates to the decision made on the complaint and the assessment of 25 July 2007.


title: Case T-552/10: Judgment of the General Court of 25 October 2012 — riha v OHIM — Lidl Stiftung (VITAL&FIT) (Community trade mark — Opposition proceedings — Application for Community figurative mark VITAL&FIT — Earlier national word mark VITAFIT — Relative ground for refusal — Likelihood of confusion — Article 8(1)b) of Regulation (EC) No 207/2009 — Duty to state reasons — Article 75 of Regulation No 207/2009)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/22

         Judgment of the General Court of 25 October 2012 — riha v OHIM — Lidl Stiftung (VITAL&FIT)
   (Case T-552/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark VITAL&FIT - Earlier national word mark VITAFIT - Relative ground for refusal - Likelihood of confusion - Article 8(1)b) of Regulation (EC) No 207/2009 - Duty to state reasons - Article 75 of Regulation No 207/2009)
   2012/C 379/38
   Language of the case: German

      Parties

      Applicant: riha Richard Hartinger Getränke GmbH & Co. Handels-KG (Rinteln, Germany) (represented by: P. Goldenbaum, T. Melchert and I. Rohr, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Lidl Stiftund & Co. KG (Neckarsulm, Germany) (represented by: M. Schaeffer and A. Marx, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 5 October 2010 (Case R 1229/2009-4) relating to opposition proceedings between Lidl Stiftund & Co. KG and riha Richard Hartinger Getränke GmbH & Co. Handels-KG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders: riha Richard Hartinger Getränke GmbH & Co. Handels-KG to pay the costs.

      (1)  OJ C 30 of 29.1.2011.


title: Order of the Court (Fourth Chamber) of 17 October 2003 nella causa C-35/02 (Reference for a preliminary ruling from the Bundesverwaltungsgericht): Landeszahnärztekammer Hessen v Markus Vogel, Third parties: Landesärtztekammer Hessen, Oberbundesanwalt beim Bundesverwaltungsgericht (Article 104(3) of the Rules of Procedure — Freedom of establishment — Freedom to provide services — Directives 78/686/EEC and 78/687/EEC — The practice of dentistry by a doctor)

text:
10.1.2004                EN                           Official Journal of the European Union                                                 C 7/17
2.    Article 21(1)(c) of the Sixth Council Directive 77/388/EEC of           An administrative practice such as the one at issue in the main
      17 May 1977 on the harmonisation of the laws of the Member              proceedings, under which degrees awarded by a university of one
      States relating to turnover taxes — Common system of value              Member State cannot be recognised in another Member State when
      added tax: uniform basis of assessment does not preclude                the courses of preparation for those degrees were provided in the latter
      reimbursement of an amount mentioned in error by way of                 Member State by another educational establishment in accordance
      value added tax on an invoice or other document serving as              with an agreement made between the two establishments, is
      invoice where the services at issue are not subject to value added      incompatible with Article 43 EC.
      tax and the amount invoiced cannot therefore be classified as
      value added tax.
                                                                              (1) OJ C 144 of 15.6.2002.
(1) OJ C 169 of 13.7.2002 and OJ C 144 du 15.6.2002.
                                                                                ORDER OF THE COURT
                  JUDGMENT OF THE COURT
                                                                                (Fourth Chamber)
                           (Fifth Chamber)
                                                                                of 17 October 2003
                       of 13 November 2003
                                                                              nella causa C-35/02 (Reference for a preliminary ruling
in Case C-153/02 (Reference for a preliminary ruling from                     from the Bundesverwaltungsgericht): Landeszahnärzte-
the Giudice di pace di Genova): Valentina Neri v European                     kammer Hessen v Markus Vogel, Third parties: Landes-
School of Economics (ESE Insight World Education Sys-                         ärtztekammer Hessen, Oberbundesanwalt beim Bundes-
                              tem Ltd) (1)                                                          verwaltungsgericht (1)
(Freedom of establishment — Recognition of diplomas —                         (Article 104(3) of the Rules of Procedure — Freedom of
Degree issued by a university established in a Member State                   establishment — Freedom to provide services — Directives
— Courses of study in preparation for a degree awarded in                     78/686/EEC and 78/687/EEC — The practice of dentistry
another Member State and by another educational establish-                                                 by a doctor)
                                 ment)
                                                                                (2004/C 7/29)
                            (2004/C 7/28)
                     (Language of the case: Italian)                                             (Language of the case: German)
(Provisional translation; the definitive translation will be published        (Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                               in the European Court Reports)
In Case C-153/02: Reference to the Court under Article 234 EC                 In Case C-35/02: Reference to the Court under Article 234 EC
by the Giudice di pace di Genova (Italy) for a preliminary                    by the Bundesverwaltungsgericht (Germany) for a preliminary
ruling in the proceedings pending before that court between                   ruling in the proceedings pending before that court between
Valentina Neri and European School of Economics (ESE                          Landeszahnärztekammer Hessen and Markus Vogel; Third
Insight World Education System Ltd) on the interpretation of                  parties: Landesärtztekammer Hessen, Oberbundesanwalt beim
Articles 39 EC, 43 EC and 49 EC, of Council Decision 63/266/                  Bundesverwaltungsgericht, on the the interpretation of Council
EEC of 2 April 1963 laying down general principles for                        Directive 78/687/EEC of 25 July 1978 concerning the coordi-
implementing a common vocational training policy (OJ,                         nation of provisions laid down by law, regulation or adminis-
English Special Edition 1963-1964 (I), p. 25) and Council                     trative action in respect of the activities of dental practitioners
Directive 89/48/EEC of 21 December 1988 on a general                          (OJ 1978 L 233, p. 10), as amended by the Act concerning the
system for the recognition of higher-education diplomas                       conditions of accession of the Republic of Austria, the Republic
awarded on completion of professional education and training                  of Finland and the Kingdom of Sweden and the adjustments to
of at least three years’ duration (OJ 1989 L 19, p. 16), the                  the Treaties on which the European Union is founded (OJ
Court (Fifth Chamber), composed of: D.A.O. Edward, acting                     1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the Court (Fourth
for the President of the Fifth Chamber, A. La Pergola and                     Chamber), composed of: C.W.A. Timmermans (Rapporteur),
S. von Bahr (Rapporteur), Judges; F.G. Jacobs, Advocate                       President of the Chamber, A. La Pergola and S. von Bahr,
General; L. Hewlett, Principal Administrator, for the Registrar,              Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has
has given a judgment on 13 November 2003, in which it has                     made an order on 17 October 2003, the operative part of
ruled:                                                                        which is as follows:
 ---pagebreak--- C 7/18                    EN                            Official Journal of the European Union                                           10.1.2004
Council Directive 78/687/EEC of 25 July 1978 concerning the                     The Court of Justice of the European Communities clearly has no
coordination of provisions laid down by law, regulation or adminis-             jurisdiction to reply to the questions referred by the Commission de
trative action in respect of the activities of dental practitioners, as         conciliation et d’expertise douanière in its decision of 18 March
amended by the Act concerning the conditions of accession of the                2003.
Republic of Austria, the Republic of Finland and the Kingdom of
Sweden and the adjustments to the Treaties on which the European
Union is founded, properly construed, precludes a national rule                 (1) OJ C 135 of 7.6.2003.
containing a general authorisation for doctors who have not completed
the training required by Article 1 of that directive to carry out the
activities of a dental practitioner, irrespective of the title under which
those activities are carried out.
(1) OJ C 109 of 4.5.2002.
                                                                                Appeal brought on 20 October 2003 by P&O European
                                                                                Ferries (Vizcaya) SA against the judgment delivered
                                                                                on 5 August 2003 by the First Chamber (Extended
                                                                                Composition) of the Court of First Instance of the
                                                                                European Communities in joined cases T-116/01 between
                                                                                P&O European Ferries (Vizcaya) SA, supported by Dipu-
          ORDER OF THE COURT OF THE JUSTICE                                     tación Foral de Vizcaya, and the Commission of the
                                                                                European Communities and T-118/01 between Diputa-
                            of 11 July 2003                                     ción Foral de Vizcaya, supported by P&O European
                                                                                Ferries (Vizcaya) SA, and the Commission of the European
                                                                                Communities
in Case C-161/03 (reference for a preliminary ruling by
the Commission de conciliation et d’expertise douanière):
Administration des douanes v Centrale d’achat française                                                  (Case C-442/03 P)
pour l’outre-mer SA (CAFOM), Samsung Electronics
                                France (1)
                                                                                (2004/C 7/31)
(Reference for a preliminary ruling — Court’s lack of
                              jurisdiction)
                                                                                An appeal against the judgment delivered on 5 August 2003
                             (2004/C 7/30)                                      by the First Chamber (Extended Composition) of the Court of
                                                                                First Instance of the European Communities in joined cases
                      (Language of the case: French)                            T-116/01 (1) between P&O European Ferries (Vizcaya) SA,
                                                                                supported by Diputación Foral de Vizcaya, and the Com-
                                                                                mission of the European Communities and T-118/01 (2)
(Provisional translation; the definitive translation will be published          between Diputación Foral de Vizcaya, supported by P&O
                     in the European Court Reports)                             European Ferries (Vizcaya) SA, and the Commission of the
                                                                                European Communities, was brought before the Court of
                                                                                Justice of the European Communities on 20 October 2003 by
                                                                                P&O European Ferries (Vizcaya) SA, established in Bilbao
In Case C-161/03: reference to the Court under Article 234 EC                   (Spain), represented by Sir Jeremy Lever QC and M. Pickford,
by the Commission de conciliation et d’expertise douanière                      Barristers, and J. Ellison, Solicitor.
(France) for a preliminary ruling in the proceedings between
Administration des douanes and Centrale d’achat française
pour l’outre-mer SA (CAFOM), Samsung Electronics France —                       The Appellant claims that the Court should:
on the interpretation of Article 27 of Protocol No 4 annexed
to the Europe Agreement between the European Communities
and their Member States, of the one part, and the Republic of                   1.    make an order setting aside the Court of First Instance’s
Hungary, of the other part, concluded and approved in the                             judgment of 5 August 2003 and remitting the questions
name of the European Communities by Decision 93/743/                                  set out at paragraph 13 of the appeal for determination
Euratom, ECSC, EC of the Council and the Commission of                                by the Court of First Instance;
13 December 1993 (OJ 1993 L 348, p. 1) — the Court,
composed of: G.C. Rodríguez Iglesias, President, J.-P. Puisso-                  2.    make an order that the Commission pay the Appellant’s
chet, M. Wathelet, R. Schintgen and C.W.A. Timmermans,                                costs of this appeal; and
Presidents of Chambers, C. Gulmann (Rapporteur),
D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,                   3.    make an order setting aside the order of the Court of First
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas,                          Instance of 5 August 2003 that the Appellant pay the
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,                         Commission’s costs, and reserving reconsideration of
made an order on 11 July 2003 of which the operative part is                          those costs for the Court of First Instance when the case
as follows:                                                                           is remitted to it.


title: Case C-239/07: Reference for a preliminary ruling from the Konstitucinis Teismas (Lithuania) lodged on 14 May 2007 — Sabatauskas and Others v Lietuvos Respublikos Seimas

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/12

         Reference for a preliminary ruling from the Konstitucinis Teismas (Lithuania) lodged on 14 May 2007 — Sabatauskas and Others v Lietuvos Respublikos Seimas
   (Case C-239/07)
   (2007/C 170/22)
   Language of the case: Lithuanian
   Referring court
   Lietuvos Respublikos Konstitucinis Teismas (Lithuania)
   Parties to the main proceedings

      Applicants: Group of members of the Seimas — Julius Sabatauskas and Others

      Interested party: Lietuvos Respublikos Seimas
   Question referred
   Is Article 20 of Directive 2003/54/EC (1) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC to be interpreted as obliging Member States to establish legal rules whereby any third party has the right, at his discretion, provided that the electricity system has ‘the necessary capacity’, to choose the system — electricity transmission system or electricity distribution system — to which he wishes to be connected, and the operator of that system has an obligation to grant access to the network?

      (1)  OJ L 176, p. 37.


title: Judgment of the Court of First Instance of 4 November 2003 in Case T-85/02: Pedro Díaz, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Application for Community word mark CASTILLO — Earlier national figurative mark EL CASTILLO — Likelihood of confusion — Similar marks already on the relevant market)

text:
C 21/32                EN                         Official Journal of the European Union                                            24.1.2004
on-Main (Germany), represented by T. Raab-Rhein, C. Roth                  Mollerussa (Spain): Action brought against the decision of the
and B. Karthaus, lawyers, with an address for service in                  Third Board of Appeal of the Office for Harmonisation in
Luxembourg, against European Central Bank (Agents: V. Sain-               the Internal Market (Trade Marks and Designs) (OHIM) of
tot, T. Gilliams and B. Wägenbaur), application for, first,               16 January 2002 (Case R 40/2000-3) concerning the oppo-
annulment of the pay slips sent on 13 July 2001 to the                    sition filed by the owner of the national trade mark EL
applicants, staff of the European Central Bank (ECB), for the             CASTILLO, the Court of First Instance (Second Chamber),
month of July 2001, insofar as they are based on an increase              composed of: N. J. Forwood, President, J. Pirrung and
in basic pay of 2.2 % and, secondly, orders that the ECB send             A. W. H. Meij, Judges; B. Pastor, Deputy Registrar, has given a
the applicants pay slips for the month of July 2001 based on              judgment on 4 November 2003, in which it:
an increase in basic pay of at least 2.7 %, or, in the alternative,
on an increase corresponding to that upheld in the Court’s
                                                                          1.    Dismisses the application;
judgment in this case, and pay them the difference between
those amounts, the Court of First Instance (Third Chamber),
composed of J. Azizi, President, M. Jaeger and N. J. Forwood,             2.    Orders the applicant to pay the costs.
Judges; D. Christensen, Administrator, for the Registrar, has
given a judgment on 20 November 2003, the operative part
                                                                          (1) OJ C 144 of 15.6.2002.
of which is as follows:
1.    The pay slips sent on 13 July 2001 to the applicants, staff of
      the European Central Bank (ECB), for the month of July 2001
      are annulled in so far as the ECB failed to consult the staff
      committee in adopting the salaries adjustment for the year
      2001;
                                                                              JUDGMENT OF THE COURT OF FIRST INSTANCE
2.    The remainder of the action is dismissed;
                                                                                of 5 November 2003
3.    The European Central Bank shall pay the costs.
                                                                          in Case T-98/02, Maddalena Lebedef-Caponi v Com-
(1) OJ C 131 of 1.6.2002.                                                           mission of the European Communities (1)
                                                                          (Officials — Staff report — Performance of staff representa-
                                                                            tive’s and trade union activities — Action for annulment)
                                                                                (2004/C 21/68)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: French)
                      of 4 November 2003
in Case T-85/02: Pedro Díaz, SA v Office for Harmonis-
ation in the Internal Market (Trade Marks and Designs)                    In Case T-98/02, Maddalena Lebedef-Caponi, an official of
                            (OHIM) (1)                                    the Commission of the European Communities, residing in
                                                                          Senningerberg (Luxembourg), represented by G. Bouneou and
(Community trade mark — Opposition procedure — Appli-                     F. Frabetti, lawyers, with an address for service in Luxembourg,
cation for Community word mark CASTILLO — Earlier                         against Commission of the European Communities (Agents:
national figurative mark EL CASTILLO — Likelihood of                      D. Martin and C. Berardis-Kayser), application for annulment
 confusion — Similar marks already on the relevant market)                of the decision to adopt the applicant’s final staff report for
                                                                          the period from 1 July 1995 to 30 June 1997, the Court of First
                                                                          Instance (Fourth Chamber), composed of V. Tiili, President,
                          (2004/C 21/67)                                  P. Mengozzi and M. Vilaras, Judges; I. Natsinas, Administrator,
                                                                          for the Registrar, has given a judgment on 5 November 2003,
                  (Language of the case: Spanish)                         the operative part of which is as follows:
                                                                          1.    The decision to adopt the applicant’s final staff report for the
In Case T-85/02, Pedro Díaz, SA, established in Cartagena                       period from 1 July 1995 to 30 June 1997 is annulled.
(Spain), represented initially by P. Koch Moreno and sub-
sequently by M. Aznar Alonso, lawyers, v Office for Harmonis-             2.    The Commission is ordered to pay the costs.
ation in the Internal Market (Trade Marks and Designs) (OHIM)
(Agents: O. Montalto and J. Crespo Carrillo), the other party to
the proceedings before the Board of Appeal of the Office for              (1) OJ C 144 of 15.6.2002.
Harmonisation in the Internal Market (Trade Marks and
Designs)(OHIM) being Granjas Castelló, SA, established in


               10.11.2007

               EN

               Official Journal of the European Union

               C 269/2

         Election of Presidents of Chambers of three Judges
   (2007/C 269/02)
   At a meeting on 25 September 2007, the Judges of the Court of Justice, pursuant to the second subparagraph of Article 10(1) of the Rules of Procedure, elected Mr Tizzano, Mr Bay Larsen, Mr Lõhmus and Mr Arestis as Presidents of the Fifth, Sixth, Seventh and Eighth Chambers of three Judges respectively, for a period of one year expiring on 6 October 2008.


title: Case C-21/11: Order of the Court of 7 June 2012 (reference for a preliminary ruling from the Commissione tributaria provinciale di Benevento — Italy) — Volturno Trasporti Sas di Santoro Nino e c. v Camera di Commercio di Benevento, Equitalia Polis SpA (Reference for a preliminary ruling — Manifest inadmissibility)

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/3

         Order of the Court of 7 June 2012 (reference for a preliminary ruling from the Commissione tributaria provinciale di Benevento — Italy) — Volturno Trasporti Sas di Santoro Nino e c. v Camera di Commercio di Benevento, Equitalia Polis SpA
   (Case C-21/11) (1)

   (Reference for a preliminary ruling - Manifest inadmissibility)
   2012/C 303/03
   Language of the case: Italian

      Referring court

   Commissione tributaria provinciale di Benevento (Italy)

      Parties to the main proceedings

      Applicant: Volturno Trasporti Sas di Santoro Nino e c.

      Defendants: Camera di Commercio di Benevento, Equitalia Polis SpA

      Re:

   Reference for a preliminary ruling — Commissione tributaria provinciale di Benevento — Interpretation of Article 10(c) of Council Directive No 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) — Indirect taxes on the raising of capital — Imposition of an annual fee for entry in the register of companies kept by the local chambers of commerce — Whether permissible

      Operative part of the order

   The reference for a preliminary ruling made by the Commissione tributaria provinciale di Benevento (Italy), by decision of 22 September 2010, is manifestly inadmissible.

      (1)  OJ C 95, 26.3.2011.


title: Case T-53/14: Judgment of the General Court of 19 February 2016 — Ludwig-Bölkow-Systemtechnik v Commission (Arbitration clause — Sixth framework programme for research, technological development and demonstration activities — Reimbursement of a portion of the amounts paid and flat-rate compensation — No need to adjudicate in part — Costs eligible for EU funding — Penalty clause — Manifestly excessive character)

text:
               29.3.2016

               EN

               Official Journal of the European Union

               C 111/19

         Judgment of the General Court of 19 February 2016 — Ludwig-Bölkow-Systemtechnik v Commission
   (Case T-53/14) (1)

   ((Arbitration clause - Sixth framework programme for research, technological development and demonstration activities - Reimbursement of a portion of the amounts paid and flat-rate compensation - No need to adjudicate in part - Costs eligible for EU funding - Penalty clause - Manifestly excessive character))
   (2016/C 111/22)
   Language of the case: German

      Parties

      Applicant: Ludwig-Bölkow-Systemtechnik GmbH (Ottobrunn, Germany) (represented by: initially, M. Núñez Müller and T. Becker, and, subsequently, M. Núñez Müller, lawyers)

      Defendant: European Commission (represented by: T. Maxian Rusche and F. Moro, acting as Agents)

      Re:

   Application for a declaration, first, that the Commission is not entitled to require the applicant to reimburse advances paid under three contracts and, secondly, that the applicant is not required to pay flat-rate compensation to the Commission.

      Operative part of the judgment

   The Court:

               1.

               Declares that there is no longer any need to adjudicate on the second and third heads of claim of the action;

               2.

               Declares that the sums payable as flat-rate compensation by Ludwig-Bölkow-Systemtechnik GmbH are to be reduced by an amount equivalent to 10 % of the advances to be reimbursed under the contracts concerning the projects HyWays, HyApproval and HarmonHy;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders Ludwig-Bölkow-Systemtechnik and the European Commission to bear their own respective costs.

      (1)  OJ C 129, 28.4.2014.


title: Case C-29/03: Action brought on 27 January 2003 by Commission of the European Communities against ITEC-Instituto Tecnológico para a Europa Comunitária

text:
C 70/12                EN                       Official Journal of the European Union                                       22.3.2003
than life assurance ( 1), as supplemented and amended by                Pleas in law and main arguments
Second Council Directive 88/357/EEC (2) and Third Council
Directive 92/49/EEC ( 3), and Articles 17 and 18 of First Council
Directive 79/267/EEC on the coordination of laws, regulations           Under Article 7 of the General Conditions of the Contract , the
and administrative provisions relating to the taking up and             Court of First Instance of the European Communities and, on
pursuit of the business of direct life assurance (4), as amended        appeal, the Court of Justice of the European Communities have
and supplemented by Second Council Directive 90/619/EEC (5)             jurisdiction in any action concerning the validity, application
and Third Council Directive 92/96/EEC (6), may the national             and interpretation of the contract.
legislature provide that, where an insurance company is the
subject of insolvency proceedings, is put into liquidation or is
otherwise in a state of insolvency, claims arising from an              Since the abovementioned amounts, overpaid by the Com-
employment relationship with it are satisfied from the assets           mission, have not been repaid, the defendant failed to fulfil its
which are included in its technical provisions in preference to         obligations under the contract.
claims of persons entitled to an insurance payment and of
successors to all or certain of their rights?
( 1) OJ L 228 of 16.08.1973, p. 3.
( 2) OJ L 172 of 04.07.1988, p. 1.
( 3) OJ L 228 of 11.08.1992, p. 1.
( 4) OJ L 63 of 13.03.1979, p. 1.
( 5) OJ L 330 of 29.11.1990, p. 50.                                     Action brought on 27 January 2003 by Commission
( 6) OJ L 360 of 09.12.1992, p. 1.                                      of the European Communities against ITEC-Instituto
                                                                                Tecnológico para a Europa Comunitária
                                                                                (Case C-30/03)
                                                                                (2003/C 70/20)
Action brought on 27 January 2003 by Commission
of the European Communities against ITEC-Instituto
           Tecnológico para a Europa Comunitária                        An action against ITEC-Instituto Tecnológico para a Europa
                                                                        Comunitária was brought before the Court of Justice of
                                                                        the European Communities on 27 January 2003 by the
                         (Case C-29/03)                                 Commission of the European Communities, represented by
                                                                        G. Braga da Cruz and C. Giolito, acting as Agents, with an
                                                                        address for service in Luxembourg.
                         (2003/C 70/19)
                                                                        The applicant claims that the Court should:
An action against ITEC-Instituto Tecnológico para a Europa              (a)   order the defendant to pay EUR 29 538,01, consisting of
Comunitária was brought before the Court of Justice of the                    EUR 26 105,97 as a capital amount and EUR 3 432,04
European Communities on 27 January 2003 (previously                           by way of interest until 31 December 2002 at the rate
brought before the Court of First Instance on 17 January 2003)                5,25 %;
by the Commission of the European Communities, represented
by G. Braga da Cruz and C. Giolito, acting as Agents, with an           (b)   order payment of EUR 3,75 per diem, by way of interest
address for service in Luxembourg.                                            at the same rate from 31 December 2002 until full
                                                                              payment is made;
The applicant claims that the Court should:
                                                                        (c)   order the defendant to pay the costs.
(a)   order the defendant to pay EUR 69 089,84 consisting of
      EUR 62 236,65 as a capital amount and EUR 6 853,19
      by way of interest until 31 December 2002 at the rate
                                                                        Pleas in law and main arguments
      6,28 %;
(b)   order payment of EUR 10,71 per diem, by way of interest           Under Article 12(2) of the contract, the Court of First Instance
      at the same rate from 31 December 2002 until full                 of the European Communities and, on appeal, the Court of
      payment is made;                                                  Justice of the European Communities have jurisdiction in any
                                                                        action concerning the validity, application and interpretation
(c)   order the defendant to pay the costs.                             of the contract.


title: Judgment of the Court (Third Chamber) of  27 October 2005  in Case C-158/03: Commission of the European Communities v Kingdom of Spain (Freedom of establishment — Freedom to provide services — Calls for tender issued by the Instituto Nacional de Salud — Health services consisting of home respiratory treatments — Condition for tendering — Evaluation criteria — Principle of non-discrimination)

text:
               24.12.2005

               EN

               Official Journal of the European Union

               C 330/1

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 27 October 2005
   in Case C-158/03: Commission of the European Communities v Kingdom of Spain (1)

   (Freedom of establishment - Freedom to provide services - Calls for tender issued by the Instituto Nacional de Salud - Health services consisting of home respiratory treatments - Condition for tendering - Evaluation criteria - Principle of non-discrimination)
   (2005/C 330/02)
   Language of the case: Spanish
   In Case C-158/03 Commission of the European Communities (Agents: G. Valero Jordana and K. Wiedner) v Kingdom of Spain (Agent: S. Ortiz Vaamonde) — action under Article 226 EC for failure to fulfil its obligations, brought on 7 April 2003 — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, J. Malenovský, J.-P. Puissochet, S. von Bahr and U. Lõhmus, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 27 October 2005, in which it:

               1.

               Declares that, by including in the tendering specifications for a public contract for health services consisting of home respiratory treatments and other assisted breathing techniques, first, a tendering condition which requires an undertaking submitting a tender to have, at the time the tender is submitted, an office open to the public in the province or, as the case may be, the capital of the province where the service is to be supplied and, second, tender evaluation criteria which reward, by awarding extra points, the existence, at the time the tender is submitted, of oxygen production, conditioning and bottling plants situated, as the case may be, in Spain or less than 1 000 kilometres from the province in question or of offices open to the public in other specified towns in that province, and which, in the case of a tie between a number of tenders, favour the undertaking which has previously provided the service concerned, the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC;

               2.

               Dismisses the remainder of the application;

               3.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 135 of 07.06.2003.


title: Case C-509/10: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 26 October 2010 — Josef Geistbeck and Thomas Geistbeck v Saatgut-Treuhandverwaltungs GmbH

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/15

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 26 October 2010 — Josef Geistbeck and Thomas Geistbeck v Saatgut-Treuhandverwaltungs GmbH
   (Case C-509/10)
   ()
   2011/C 30/24
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicants: Josef Geistbeck and Thomas Geistbeck

      Defendant: Saatgut-Treuhandverwaltungs GmbH

      Questions referred

   The following questions on the interpretation of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (‘the Regulation on plant variety rights’ or ‘the CPVR Regulation’) (1) and of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights (‘the Community Planting Regulation’) (2) are referred to the Court of Justice of the European Union pursuant to point (b) of the first paragraph and the third paragraph of Article 267

               (a)

               Must the reasonable compensation which a farmer must pay to the holder of a Community plant variety right in accordance with Article 94(1) of the CPVR Regulation because he has used propagating material of a protected variety obtained through planting and has not fulfilled the obligations laid down in Article 14(3) of the CPVR Regulation and Article 8 of the Community Planting Regulation, be calculated on the basis of the average amount of the fee charged for the licensed production of a corresponding quantity of propagating material of protected varieties of the plant species concerned in the same area, or must the (lower) remuneration which would be payable in the event of authorised planting under the fourth indent of Article 14(3) of the CPVR Regulation and Article 5 of the Community Planting Regulation be taken as a basis for the calculation instead?

               (b)

               In the event that only the remuneration for authorised planting must be taken as a basis for the calculation: in the circumstances described above, may the holder, in the event of a single intentional or negligent infringement, calculate the damage for which he must be compensated in accordance with Article 94(2) of the CPVR Regulation as a lump sum based on the fee for the grant of a licence for the production of propagating material?

               (c)

               Is it permitted or even required, when assessing the reasonable compensation due under Article 94(1) of the CPVR Regulation or the further compensation due under Article 94(2) of the CPVR Regulation, for the special monitoring costs of an organisation which protects the rights of numerous holders to be taken into account in such a way that double the compensation usually agreed, or double the remuneration due under the fourth indent of Article 14(3) of the CPVR Regulation, is awarded?

      (1)  OJ 1994 L 227, p.1.

      (2)  OJ 1995 L 173, p. 14.


title: Case T-43/07 P: Judgment of the Court of First Instance of 13 October 2008 — Neophytou v Commission (Appeals — Staff cases — Open competition — Rejection of the appellant's candidature — Composition of the selection board for the oral tests — Principle of equal treatment — New pleas in law — Error of law — Appeal in part unfounded and in part founded — Referral back to the Civil Service Tribunal)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/32

         Judgment of the Court of First Instance of 13 October 2008 — Neophytou v Commission
   (Case T-43/07 P) (1)

   (Appeals - Staff cases - Open competition - Rejection of the appellant's candidature - Composition of the selection board for the oral tests - Principle of equal treatment - New pleas in law - Error of law - Appeal in part unfounded and in part founded - Referral back to the Civil Service Tribunal)
   (2008/C 301/52)
   Language of the case: English
   Parties

      Applicant: Neophytos Neophytou (Itzig, Luxembourg) (represented by: S. Pappas, lawyer)

      Other party to the proceedings: Commission of the European Communities (represented by: J. Currall and H. Krämer, acting as Agents)
   Re:
   Appeal against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 December 2006 in Case F-22/05 Neophytou v Commission [2006] ECR-SC II-A-1-617 seeking to have that judgment set aside.
   Operative part of the judgment
   The Court:

               1.

               Sets aside the judgment of the European Union Civil Service Tribunal of 13 December 2006 in Case F-22/05 Neophytou v Commission to the extent that the Civil Service Tribunal held that the submissions, with the exception of the last, put forward by Mr Neophytos Neophytou at the hearing at first instance and summarised in paragraph 27 of that judgment, were inadmissible;

               2.

               Dismisses the remainder of the appeal;

               3.

               Refers the case back to the Civil Service Tribunal;

               4.

               Orders that the costs be reserved.

      (1)  OJ C 82, 14.4.2007.


title: Case F-85/08: Action brought on 15 October 2008 — Notarnicola v Court of Auditors

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/60

         Action brought on 15 October 2008 — Notarnicola v Court of Auditors
   (Case F-85/08)
   (2008/C 313/110)
   Language of the case: French
   Parties

      Applicant: Pietro Notarnicola (Luxembourg, Luxembourg) (represented by: A. Gross, lawyer)

      Defendant: Court of Auditors of the European Communities
   Subject-matter and description of the proceedings
   Annulment of the decision of the defendant informing the applicant of his dismissal and reinstatement of the applicant and, in the alternative, an order that the defendant pay a sum as compensation for the material and non-material loss suffered by the applicant.
   Form of order sought

               —

               Annul the decision of 16 July 2008 and, accordingly, annul the decision of 5 March 2008 informing the applicant of his dismissal with effect from 15 April 2008;

               —

               Reinstate the applicant as a member of the contractual staff pursuant to the contract of 23 August 2007, with retroactive payment of salary from 16 April 2008 until the date of judgment;

               —

               In the alternative, order the defendant to pay the sum of EUR 60 500 for material loss and EUR 5 000 for the non-material loss suffered by the applicant.


title: Case T-112/14: Action brought on 17 February 2014 — Molinos Río de la Plata v Council

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/55

         Action brought on 17 February 2014 — Molinos Río de la Plata v Council
   (Case T-112/14)
   2014/C 112/72
   Language of the case: English

      Parties

      Applicant: Molinos Río de la Plata SA (Buenos Aires, Argentine) (represented by: J.-F. Bellis and R. Luff, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013, imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), insofar as it concerns the applicant; and

               —

               Order the defendant to bear 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 that the Institutions have committed a manifest error in the appreciation of the facts by concluding that there was a distortion of the prices of soya beans and soybean oil justifying the application of the second paragraph of Article 2(5) of the Basic Anti-dumping Regulation (1).

               2.

               Second plea in law, alleging that the second paragraph of Article 2(5) of the Basic Antidumping Regulation, as construed by the Institutions in the present case, may not be applied to imports from a WTO member as it is inconsistent with the WTO Anti-dumping Agreement.

               3.

               Third plea in law, alleging that the injury assessment fails to take into consideration factors that break the causal link between the alleged injury and the allegedly dumped imports in violation of Article 3(7) of the Basic-Anti-dumping Regulation

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51)


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 14 August 1998 in Case T-43/98 R: Emesa Sugar (Free Zone) NV v Council of the European Union (Scheme of the association of the overseas countries and territories - Decisions 91/482/EEC and 97/803/EC - Proceedings for interim measures - Intervention - Urgency - None)

text:
24.10.98             EN                 Official Journal of the European Communities                                  C 327/25
2. The parties are to bear their own costs.                                       ORDER OF THE PRESIDENT
                                                                             OF THE COURT OF FIRST INSTANCE
(1) OJ C 228, 26.7.1997.                                                                of 14 August 1998
                                                                        in Case T-44/98 R: Emesa Sugar (Free Zone) NV v
                                                                             Commission of the European Communities
                                                                   (Scheme of the association of the overseas countries and
                                                                   territories Ð Decisions 91/482/EEC and 97/803/EC Ð
                                                                   Regulation (EC) No 2553/97 Ð Proceedings for interim
               ORDER OF THE PRESIDENT                                      measures Ð Intervention Ð Urgency Ð None)
          OF THE COURT OF FIRST INSTANCE
                                                                                (98/C 327/47)
                     of 14 August 1998
    in Case T-43/98 R: Emesa Sugar (Free Zone) NV v
               Council of the European Union                                       (Language of the case: Dutch)
(Scheme of the association of the overseas countries and
territories Ð Decisions 91/482/EEC and 97/803/EC Ð
Proceedings for interim measures Ð Intervention Ð
                      Urgency Ð None)                              In Case T-44/98 R: Emesa Sugar (Free Zone) NV,
                                                                   established at Oranjestad (Aruba), represented by Gerard
                         (98/C 327/46)                             van der Wal, Advocate with a right of audience before the
                                                                   Hoge Raad der Nederlanden, with an address for service
                                                                   in Luxembourg at the Chambers of Aloyse May, 31
                                                                   Grand-Rue, v Commission of the European Communities
               (Language of the case: Dutch)
                                                                   (Agent: Thomas van Rijn), supported by the Council of
                                                                   the European Union (Agents: Jürgen Huber and Guus
                                                                   Houttuin), the Kingdom of Spain (Agents: Rosario Silva
In Case T-43/98 R: Emesa Sugar (Free Zone) NV,                     de Lapuerta and Monica Lopez-Monis Gallego) and the
established at Oranjestad (Aruba), represented by Gerard           French Republic (Agent: Claude Chavance) Ð application,
van der Wal, Advocate with a right of audience before the          first, for suspension of the operation of Decision VI/51329
Hoge Raad der Nederlanden, with an address for service             of the Commission of 23 December 1997 rejecting a
in Luxembourg at the Chambers of Aloyse May, 31                    request by the applicant for the issue of import licences in
Grand-Rue, v Council of the European Union (Agents:                respect of sugar products and, second, for interim
Jürgen Huber and Guus Houttuin), supported by the                  measures prohibiting the Commission from applying
Commission of the European Communities (Agent:                     Article 108b of Council Decision 91/482/EEC of 25 July
Thomas van Rijn), the Kingdom of Spain (Agents: Rosario            1991 on the association of the overseas countries and
Silva de Lapuerta and Monica Lopez-Monis Gallego) and              territories with the European Economic Community (OJ
the French Republic (Agent: Claude Chavance) Ð                     L 263, 19.9.1991, p. 1), as amended, and/or Commission
application for partial suspension of the operation of             Regulation (EC) No 2553/97 of 17 December 1997 on
Council Decision 97/803/EC of 24 November 1997                     rules for issuing import licences for certain products
amending at mid-term Decision 91/482/EEC on the                    covered by CN codes 1701, 1702, 1703 and 1704 and
association of the overseas countries and territories with         qualifying as ACP/OCT originating products Ð the
the European Economic Community (OJ L 329,                         President of the Court of First Instance made an order on
29.11.1997, p. 50) Ð the President of the Court of First           14 August 1998, the operative part of which is as follows:
Instance made an order on 14 August 1998, the operative
part of which is as follows:
                                                                   1. The Government of Aruba is granted leave to
                                                                        intervene in the present proceedings for interim
1. The Government of Aruba is granted leave to                          measures in support of the form of order sought by
    intervene in the present proceedings for interim relief             the applicant.
    in support of the form of order sought by the
    applicant.
                                                                   2. The application for interim measures is dismissed.
2. The application for interim relief is dismissed.
                                                                   3. The costs are reserved.
3. The costs are reserved.


title: Case C-34/05: Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven by decision of that court of 26 January 2005 in the case of Maatschap J. and G.P. and A.C. Schouten v Minister van Landbouw, Natuur en Voedselkwaliteit

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/7

         Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven by decision of that court of 26 January 2005 in the case of Maatschap J. and G.P. and A.C. Schouten v Minister van Landbouw, Natuur en Voedselkwaliteit
   (Case C-34/05)
   (2005/C 93/13)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by decision of the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands) of 26 January 2005, received at the Court Registry on 31 January 2005, for a preliminary ruling in the proceedings between Maatschap J. and G.P. and A.C. Schouten and Minister van Landbouw, Natuur en Voedselkwaliteit on the following questions:

               1.

               Must Article 12(2)(b) of Regulation (EC) No 1254/1999 (1) and Article 2(1)(c) of Regulation (EEC) No 3887/92 (2) be interpreted as meaning that a parcel of land declared as a forage area may not be regarded as ‘available’ if at any time in the relevant period that parcel of land has been under water?

               2.

               If the answer to Question 1 is affirmative, are the provisions referred to above binding with specific regard to the consequences flowing from such reply?

               3.

               If the answer to Question 1 is negative, what are the applicable criteria for determining whether a parcel of land declared as a forage area which was temporarily under water can be regarded as ‘available’ for the purposes of Article 12(2)(b) of Regulation (EC) No 1254/1999 and Article 2(1)(c) of Regulation (EEC) No 3887/92?

      (1)  Council Regulation (EC) No 1254/1999 of 17 May 1999 (OJ L 160, p. 21).

      (2)  Commission Regulation (EEC) No 3887/92 of 23 December 1992 (OJ L 391, p. 36).


title: Case C-248/10: Order of the President of the Court of 13 December 2010 — European Commission v Hellenic Republic

text:
               16.4.2011

               EN

               Official Journal of the European Union

               C 120/9

         Order of the President of the Court of 13 December 2010 — European Commission v Hellenic Republic
   (Case C-248/10) (1)

   2011/C 120/20
   Language of the case: Greek
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 209, 31.7.2010.


title: Case C-239/02: Reference for a preliminary ruling by the Rechtbank van Koophandel, Hasselt, by order of that Court of 28 June 2002 in the case of Douwe Egberts NV against 1. Westrom Pharma NV and 2. Souranis Christophe and in the case of NV Douwe Egberts against BVBA Fics-World

text:
C 202/12               EN                   Official Journal of the European Communities                                       24.8.2002
Reference for a preliminary ruling by the College van                  Reference for a preliminary ruling by the Bundesfinanz-
Beroep by order of 12 June 2002 in the case of J. Slob                 hof by order of that Court of 7 May 2002 in the case of
                     v Productschap Zuivel                             Hauptzollamt Hamburg-Hafen against Kazimieras Viluck-
                                                                                as
                         (Case C-236/02)
                                                                                (Case C-238/02)
                         (2002/C 202/15)
                                                                                (2002/C 202/17)
Reference has been made to the Court of Justice of the
European Communities by order of 12 June 2002 by the
College van Beroep, which was received at the Court Registry           Reference has been made to the Court of Justice of the
on 27 June 2002, for a preliminary ruling in the case of J. Slob       European Communities by order of the Bundesfinanzhof
v Productschap Zuivel on the following question:                       (Federal Finance Court) of 7 May 2002, received at the Court
                                                                       Registry on 28 June 2002, for a preliminary ruling in the case
Can it be inferred from Article 7(1)(f) of Regulation (EEC)            of Hauptzollamt Hamburg-Hafen against Kazimieras Viluckas
No 536/93 (1) that the producer is obliged to maintain                 on the following questions:
accounts recording among other things, the availability, pro-
duction, storage, use, processing and destruction of milk and/         1.   Is Article 4(19) of the Customs Code to be interpreted as
or milk products on his holding, such ‘stock accounts’ also                 meaning that the notification to the customs authorities
being required to contain declarations of the quantity per                  of the arrival at a particular place of goods introduced into
month and per product of the milk and/or milk products sold,                the Community customs territory must refer expressly
or does that provision only lay down an obligation to record                to goods which are hidden or concealed in secret
those data as to sales?                                                     compartments?
(1) OJ 1993 L 57, p. 12.
                                                                       2.   If Question 1 is answered affirmatively:
                                                                            Is Article 40 of the Customs Code to be interpreted as
                                                                            meaning that such notification must also be made by the
                                                                            driver of a lorry, or a co-driver also entitled to drive it,
                                                                            who was not aware and should not have been aware of
                                                                            the goods hidden or concealed in the lorry?
Reference for a preliminary ruling by the Bundesge-
richtshof by order of that Court of 2 May 2002 in the case             3.   If Question 2 is answered affirmatively:
of Freiburger Kommunalbauten GmbH Baugesellschaft &
  Co. KG against Ulrike Hofstetter and Ludger Hofstetter                    Is the identity of the person who actually gave the
                                                                            (incomplete) notification a material factor in determining
                         (Case C-237/02)                                    the customs debtor under the first indent of Article 202(3)
                                                                            of the Customs Code?
                         (2002/C 202/16)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshof
(Federal Court of Justice) of 2 May 2002, received at the Court
Registry on 27 June 2002, for a preliminary ruling in the case         Reference for a preliminary ruling by the Rechtbank van
of Freiburger Kommunalbauten GmbH Baugesellschaft & Co.                Koophandel, Hasselt, by order of that Court of 28 June
KG against Ulrike Hofstetter and Ludger Hofstetter on the              2002 in the case of Douwe Egberts NV against 1. Westrom
following question:                                                    Pharma NV and 2. Souranis Christophe and in the case of
                                                                              NV Douwe Egberts against BVBA Fics-World
Is a term, contained in a seller’s standard business conditions,
which provides that the purchaser of a building which is to be
                                                                                (Case C-239/02)
constructed is to pay the total price for that building,
irrespective of whether there has been any progress in the
construction, provided that the seller has previously provided                                  (2002/C 202/18)
him with a guarantee from a credit institution securing any
monetary claims the purchaser may have in respect of defective
performance or non-performance of the contract, to be                  Reference has been made to the Court of Justice of the
regarded as unfair within the meaning of Article 3(1) of               European Communities by order of the Rechtbank van
Council Directive 93/13/EEC (1) of 5 April 1993 on unfair              Koophandel (Commercial Court), Hasselt, of 28 June 2002,
terms in consumer contracts?                                           received at the Court Registry on 1st July 2002, for a
                                                                       preliminary ruling in the case of Douwe Egberts NV against
(1) OJ L 95 of 21.4.1993, p. 29.                                       1. Westrom Pharma NV and 2. Souranis Christophe and in the
                                                                       case of NV Douwe Egberts against BVBA Fics-World on the
                                                                       following questions:
 ---pagebreak--- 24.8.2002             EN                      Official Journal of the European Communities                                          C 202/13
A.1. Must Article 2 of Directive 1999/4/EC (1) relating to               B.2. Must Article 18(2) of Directive 2000/13/EC be interpreted
     coffee extracts and chicory extracts be interpreted as                    as meaning that ‘protection of public health’ must be
     meaning that exclusively the product names listed in the                  understood to include non-harmonised national pro-
     Annex to that directive may be used for the products                      visions on the labelling and presentation of foodstuffs
     referred to in that Annex and that other names may not                    and on advertising for them which prohibit certain
     be used alongside those products names (e.g. an invented                  statements such as ‘references to slimming’ and ‘references
     or trade name) or must Article 2 be interpreted as                        to medical recommendations, attestations, quotations or
     meaning that the product names listed in the Annex may                    statements of approval’?
     be used only for the products referred to in that annex
     but that, alongside those product names, other names
     may also be used for those products (e.g. an invented or
     trade name)?                                                        C.    Must Article 28 of the EC Treaty be interpreted as
                                                                               meaning that national provisions on the labelling and
                                                                               presentation of foodstuffs and on advertising for them
                                                                               which are not harmonised at European level and which
A.2. If the Court of Justice of the European Communities                       deviate from Directive 2000/13/EC inasmuch as they
     considers that Article 2 of Directive 1999/4/EC of the                    prohibit certain statements in the labelling and/or presen-
     European Parliament and of the Council of 22 February                     tation of foodstuffs and/or advertising for them, such
     1999 relating to coffee extracts and chicory extracts must                as ‘references to slimming’ and ‘references to medical
     be interpreted as meaning that exclusively the product                    recommendations, attestations, quotations or statements
     names listed in the Annex to that directive may be used                   of approval’, must be regarded as measures having
     for the products referred to in that Annex and that other                 equivalent effect and/or quantitative restrictions on
     names may not be used alongside those product names                       imports between Member States of the European Com-
     (e.g. an invented or trade name), does it not then follow                 munity, inasmuch as those national provisions:
     that this directive conflicts with Article 28 of the EC
     Treaty, which prohibits quantitative restrictions on
     imports and all measures having equivalent effect between
     Member States of the European Community, because the                      —     impose an additional burden upon the import of
     directive, so interpreted, excludes, as regards products                        foodstuffs in the bringing of those products into line
     falling within its definition of extracts of coffee:                            with the national legislation and in so doing hinder
                                                                                trade between Member States
     —     the use of names other than ‘coffee extract’, or                          and
           ‘instant coffee’, such as the name ‘coffee’;
                                                                               —     do not apply to all participants concerned in the
     —     in so doing, reserves use of the name ‘coffee’ for one                    market who pursue their activities in the national
           single form of ‘coffee’, namely the coffee bean;                          territory inasmuch as there are products of a wholly
                                                                                similar nature (e.g. cosmetic products) to which
                                                                                those provisions do not apply and to which no other
                                                                                equivalent provision applies, and that consequently
     —     and thereby artificially protects the coffee market                       those provisions may not be applied by the national
           from competing products consisting of forms of                            court?
           coffee other than coffee beans, such as inter alia
           coffee extracts and instant coffee?
                                                                         (1) Directive 1999/4/EC of the European Parliament and of the
B.1. Must Article 18(1) and Article 18(2) of Directive 2000/                 Council of 22 February 1999 relating to coffee extracts and
     13/EC (2) be interpreted as meaning that non-harmonised                 chicory extracts (OJ L 66 of 13.3.1999, p. 26).
     national provisions on the labelling and presentation of            (2) Directive 2000/13/EC of the European Parliament and of the
     foodstuffs and on advertising for them which prohibit                   Council of 20 March 2000 on the approximation of the laws of
     certain statements such as ‘references to slimming’ and                 the Member States relating to the labelling, presentation and
     ‘references to medical recommendations, attestations,                   advertising of foodstuffs (OJ L 109 of 6.5.2000, p. 29).
     quotations or statements of approval’ in the labelling and/
     or presentation of foodstuffs and/or advertising for them,
     even though such statements are not prohibited by the
     Directive, constitute infringements of the Directive in
     view of the fact that the eighth recital of the Directive
     states that the most appropriate labelling is the one which
     creates fewest obstacles to free trade and that therefore
     these national provisions cannot be applied?


title: Judgment of the Court of 30 March 2012 in Joined Cases E-17/10 and E-6/11 — Principality of Liechtenstein and VTM Fundmanagement AG v EFTA Surveillance Authority (Action for annulment of a decision of the EFTA Surveillance Authority — State aid — Special tax rules applicable to investment companies — Selectivity — Existing aid and new aid — Recovery — Legitimate expectations — Legal certainty — Obligation to state reasons)

text:
               11.10.2012

               EN

               Official Journal of the European Union

               C 307/23

         JUDGMENT OF THE COURT
   of 30 March 2012
   in Joined Cases E-17/10 and E-6/11
   Principality of Liechtenstein and VTM Fundmanagement AG v EFTA Surveillance Authority
   (Action for annulment of a decision of the EFTA Surveillance Authority — State aid — Special tax rules applicable to investment companies — Selectivity — Existing aid and new aid — Recovery — Legitimate expectations — Legal certainty — Obligation to state reasons)
   2012/C 307/09
   In Joined Cases E-17/10 and E-6/11 Principality of Liechtenstein and VTM Fundmanagement AG v EFTA Surveillance Authority — APPLICATION for the annulment of Decision No 416/10/COL of 3 November 2010 on the taxation of investment undertakings under the Liechtenstein Tax Act, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 30 March 2012, the operative part of which is as follows:
   The Court hereby:

               1.

               Dismisses the applications.

               2.

               Orders the applicants to pay the costs of the proceedings.


25.11.2000            EN                  Official Journal of the European Communities                                   C 335/41
       Removal from the register of Case C-265/98 (1)                       Removal from the register of Case C-268/98 (1)
                       (2000/C 335/72)                                                      (2000/C 335/75)
By order of 12 July 2000 the President of the Court of Justice       By order of 12 July 2000 the President of the Court of Justice
of the European Communities has ordered the removal from             of the European Communities has ordered the removal from
the register of Case C-265/98 (reference for a preliminary           the register of Case C-268/98 (reference for a preliminary
ruling from the Juzgado de Primera Instancia No 35 de                ruling from the Juzgado de Primera Instancia No 35 de
Barcelona): Salvat Editores SA v José Compañ Calbuig.               Barcelona): Planeta Océano Grupo Editorial SA v Marı́a Casas
                                                                     Minguélez.
(1) OJ C 278 of 5.9.1998.
                                                                     (1) OJ C 278 of 5.9.1998.
       Removal from the register of Case C-266/98 (1)
                       (2000/C 335/73)                                      Removal from the register of Case C-269/98 (1)
By order of 12 July 2000 the President of the Court of Justice                              (2000/C 335/76)
of the European Communities has ordered the removal from
the register of Case C-266/98 (reference for a preliminary           By order of 12 July 2000 the President of the Court of Justice
ruling from the Juzgado de Primera Instancia No 35 de                of the European Communities has ordered the removal from
Barcelona): Salvat Editores SA v Gianfranco Caminati.                the register of Case C-269/98 (reference for a preliminary
                                                                     ruling from the Juzgado de Primera Instancia No 35 de
(1) OJ C 278 of 5.9.1998.                                            Barcelona): Planeta Crédito SA v Antonio Villar Castelao.
                                                                     (1) OJ C 278 of 5.9.1998.
       Removal from the register of Case C-267/98 (1)
                       (2000/C 335/74)
                                                                            Removal from the register of Case C-270/98 (1)
By order of 12 July 2000 the President of the Court of Justice
of the European Communities has ordered the removal from                                    (2000/C 335/77)
the register of Case C-267/98 (reference for a preliminary
ruling from the Juzgado de Primera Instancia No 35 de                By order of 12 July 2000 the President of the Court of Justice
Barcelona): Planeta Océano Grupo Editorial SA v Rafael Bogas         of the European Communities has ordered the removal from
Cardeñosa.                                                          the register of Case C-270/98 (reference for a preliminary
                                                                     ruling from the Juzgado de Primera Instancia No 35 de
(1) OJ C 278 of 5.9.1998.                                            Barcelona): Salvat Artel SA v Pilar López Aznar.
                                                                     (1) OJ C 278 of 5.9.1998.


title: Case C-294/14: Judgment of the Court (Fourth Chamber) of 7 April 2016 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — ADM Hamburg AG v Hauptzollamt Hamburg-Stadt (Reference for a preliminary ruling — Customs Union and Common Customs Tariff — Community Customs Code — Tariff Preferences — Regulation (EEC) No 2454/93 — Article 74(1) — Products originating from a beneficiary country — Transport — Consignments composed of a mixture of crude palm kernel oil originating in several countries benefiting from the same preferential treatment)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/7

      Judgment of the Court (Fourth Chamber) of 7 April 2016 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — ADM Hamburg AG v Hauptzollamt Hamburg-Stadt
      (Case C-294/14) (1)

      ((Reference for a preliminary ruling - Customs Union and Common Customs Tariff - Community Customs Code - Tariff Preferences - Regulation (EEC) No 2454/93 - Article 74(1) - Products originating from a beneficiary country - Transport - Consignments composed of a mixture of crude palm kernel oil originating in several countries benefiting from the same preferential treatment))
      (2016/C 211/07)
      Language of the case: German

         Referring court

      Finanzgericht Hamburg

         Parties to the main proceedings

         Applicant: ADM Hamburg AG

         Defendant: Hauptzollamt Hamburg-Stadt

         Operative part of the judgment

      Article 74(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 1063/2010 of 18 November 2010, must be interpreted as meaning that in a situation, such as that at issue in the main proceedings, where valid certificates of origin have been presented, the preferential origin, within the meaning of the generalised system of preferences established by Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007, of consignments of crude palm kernel oil may be recognised even where those products have been mixed in the tank of a vessel at the time of their transport to the European Union in circumstances where it is possible to rule out that other products, in particular products not benefiting from any preferential treatment, have been added to that tank.

         (1)  OJ C 315, 15.9.2014.


title: Case C-372/14: Order of the President of the Court of 30 March 2015 (request for a preliminary ruling from the Krajský súd v Prešove — Slovakia) — Provident Financial s. r. o. v Zdeněk Sobotka, in the presence of: Združenie na ochranu občana spotrebiteľa HOOS

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/21

         Order of the President of the Court of 30 March 2015 (request for a preliminary ruling from the Krajský súd v Prešove — Slovakia) — Provident Financial s. r. o. v Zdeněk Sobotka, in the presence of: Združenie na ochranu občana spotrebiteľa HOOS
   (Case C-372/14) (1)

   (2015/C 213/37)
   Language of the case: Slovak
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 380, 27.10.2014.


title: Case T-16/04: Action brought on 15 January 2004 by Arcelor S.A. against the European Parliament and the Council of the European Union

text:
C 71/36                EN                         Official Journal of the European Union                                        20.3.2004
Pleas in law and main arguments                                           —     The scientific rigour of comparability exercises is clear
                                                                                from the CPMP’s 2001 Note for Guidance and from the
                                                                                CPMP’s review of OMNITROP.
The context of the contested Decision was an application for              —     The use of comparability studies is therefore fully consist-
marketing authorisation made to the European Agency for the                     ent with the objective of safeguarding public health, and
Evaluation of Medicinal Products in 2001, in accordance with                    certainly does not represent any relaxation of health
scientific advice from the Committee for Proprietary Medicinal                  protection standards.
Products (CPMP), which issued a favourable Opinion in June
2003. However, the Commission decided not to proceed with
                                                                          —     The CPMP consistently opposed the use of the essential
a decision on the authorisation of the medicinal product in
                                                                                similarity route.
question, OMNITROP, under Article 10(1)(a)(ii) and Annex I
of the Directive 2001/83 of the European Parliament and
Council of 6 November 2001, on the Community Code
relating to medicinal products for human use (1), on the basis            (1) OJ L 311 of 28.11.2001, p. 67.
that the performance of ‘comparability studies’ implied that              (2) Case C-440/93 [1995] ECR I-2851.
the legal conditions for the application of the procedure were
not met. Hence, the dispute between the applicant and the
Commission relates to the interpretation of Article 10(1)(a)(ii)
and Annex I of this Directive, which govern ‘bibliographical
applications’ based on the well-established medicinal use of
the product concerned.
The applicant considers in this respect that the defendant’s              Action brought on 15 January 2004 by Arcelor S.A.
position conflicts with the clear wording of the applicable               against the European Parliament and the Council of the
legislation. It would also conflict with the scientific view of the                               European Union
body established to provide the Community with expertise in
these matters, the CPMP.
                                                                                (Case T-16/04)
Accordingly, the applicant submits, as a single plea, the                                          (2004/C 71/64)
infringement of Article 10(1)(a)(ii) and Annex I, mainly
indent d) of Sections I of its Parts 3 and 4, for the following
grounds:                                                                                (Language of the case: English)
—     Annex I to Directive 2001/83 expressly requires the
      CPMP to make a judgment on whether two products are
      similar, and this necessarily requires the applicant to             An action against the European Parliament and the Council of
      support its explanations with comparability studies.                the European Union was brought before the Court of First
                                                                          Instance of the European Communities on 15 January 2004
                                                                          by Arcelor S.A., Luxembourg, represented by Dr W. Deselaers,
—     The rules established by the Scotia judgment (2), as                Dr Bernd Meyring and Dr B. Schmitt-Rady, lawyers.
      invoked, in the Commission’s Decision, have previously
      been reversed by the Commission’s own legislation.
                                                                          The applicant claims that the Court should:
—     The Commission has publicly rejected the ‘extremely
      rigid’ approach of the Scotia judgment and called for a             —     Declare Articles 4, 12(3) and 6(2e), 9, 16(2), (3) and (4),
      ‘flexible’ approach to Article 10(1)(a)(ii) of the Directive              in conjunction with Article 2, Annex I and Annex III,
      2001/83.                                                                  No. 1, of Directive 2003/87/EC of the European Parlia-
                                                                                ment and of the Council of 13 October 2003 establishing
                                                                                a scheme for greenhouse gas emission allowance trading
—     The principles governing comparability exercises have                     within the Community and amending Council Directive
      been established by the Communty’s centre of expertise                    96/61 EC void to the extent that these provisions apply
      on biotechnology-derived products (the EMEA) and the                      to installations for the production of pig iron or steel
      exercise will always be carried out under the EMEA’s                      (primary or secondary fusion) including continuous cast-
      supervision.                                                              ing, with a capacity exceeding 2,5 tonnes per hour;
 ---pagebreak--- 20.3.2004               EN                         Official Journal of the European Union                                           C 71/37
—      Declare that the Defendants are bound to make good the              Action brought on 13 January 2004 by Le Front National
       damage that the Applicant has suffered, and may yet                 and seven others against Council of the European Union
       suffer, as a result of the adoption of Articles 4, 12(3) and                           and European Parliament
       6(2e), 9, 16 (2), (3) and (4), in conjunction with Article 2,
       Annex I and Annex Ill, No. 1, of Directive 2003/87/EC;
                                                                                (Case T-17/04)
—      Order the Defendants to bear the costs.
                                                                                (2004/C 71/65)
Pleas in law and main arguments                                                               (Language of the case: French)
The applicant is a steel producing company with installations
for the production of pig iron and steel in France, Spain,
Germany and Belgium. Directive 2003/87/EC of the European
                                                                           An action was brought before the Court of First Instance of
Parliament and of the Council of 13 October 2003 (1) establish-
                                                                           the European Communities on 13 January 2004 against the
es a scheme for greenhouse gas emission allowance trading
                                                                           Council of the Union and the European Parliament by Le
within the Community. This Directive institutes a licensing
                                                                           Front National, established in St-Cloud, France, Marie- France
system for certain activities leading to the emission of green-
                                                                           Stirbois, residing in Villeneuve-Loubey, France, Bruno
house gas, among them the production of pig iron or steel,
                                                                           Gollnisch, residing in Limonest, France, Carl Lang, residing in
and makes provision for emission allowances to be allocated
                                                                           Boulogne-Billancourt, France, Jean-Claude Martinez, residing
to relevant installations. Emissions of greenhouse gases by an
                                                                           in Montpellier, France, Philip Claeys, residing in Overijse,
installation in excess of its allowance for the relevant trading
                                                                           Belgium, Koen Dillen, residing in Antwerp, Belgium, and Mario
period is subject to monetary penalties.
                                                                           Borghezio, residing in Turin, Italy, represented by a Maître
                                                                           Wallerand de St-Just, lawyer.
In support of its application the applicant submits that
the contested provisions infringe its fundamental rights to
property and the pursuit of an economic activity, by requiring             The applicants claim that the Court of First Instance should:
it to operate its plants under economic conditions that are
unsustainable. The applicant further claims that there is very
little technological potential for steel producers to reduce their         —     Annul Regulation (EC) No 2004/2003 of the European
greenhouse gas emissions beyond the 18 % reduction already                       Parliament and of the Council of 4 November 2003 on
achieved since 1990 and that, therefore it is an infringement                    the regulations governing political parties at European
of the principle of proportionality to subject such installations                level and the rules regarding their funding;
to the Directive in question. The applicant also invokes a
breach of the principle of equality, alleging that other sectors           —     Order the European Parliament and the council to pay
in direct competition with the applicant and with comparable                     the costs and lawyers’ fees amounting to EUR 10 000.
or even higher emissions of greenhouse gases, such as
producers of non-ferrous metals and chemicals, are not subject
to the Directive. In the same context the applicant further
alleges that steel producers find themselves in a unique lock-in
situation preventing them from passing on to their clients any
monetary fines imposed for excessive emissions. The applicant              Pleas in law and main arguments
also submits that the contested provisions infringe the freedom
of establishment within the European Union by affecting its
right to transfer production freely from a less efficient plant in
one Member State to a more efficient plant in another Member               In support of their application, the applicants rely on the same
State. Finally, the applicant also invokes a breach of the                 pleas as those put forward by the applicant in Case T-13/04 (1).
principle of legal certainty, claiming that the Directive imposes          They also claim that the contested regulation infringes French
obligations whose financial implications are unforeseeable.                Law No 95-65 of 19 January 1995 on the financing of political
                                                                           parties. The latter law prohibits financing by legal persons,
                                                                           whereas the contested regulation contains no such prohibition
                                                                           and could result in evasion of the French prohibition.
(1) Directive 2003/87/EC of the European Parliament and of the
     Council of 13 October 2003 establishing a scheme for greenhouse
     gas emission allowance trading within the Community and
     amending Council Directive 96/61/EC. OJ L 275 of 25.10.2003,
                                                                           (1) Case T-13/04 Bonde and Others v Parliament and Council.
     p. 32-46.