title: Case T-538/12: Judgment of the General Court of 16 January 2014 — Optilingua v OHIM — Esposito (ALPHATRAD) (Community trade mark — Revocation proceedings — Community figurative mark — Genuine use of the mark — Extent of the use — Second subparagraph of Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/36

         Judgment of the General Court of 16 January 2014 — Optilingua v OHIM — Esposito (ALPHATRAD)
   (Case T-538/12) (1)

   (Community trade mark - Revocation proceedings - Community figurative mark - Genuine use of the mark - Extent of the use - Second subparagraph of Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009)
   2014/C 52/69
   Language of the case: French

      Parties

      Applicant: Optilingua Holding SA (Épalingues, Switzerland) (represented by: S. Rizzo, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Pétrequin and A. Folliard-Monguiral, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: Michele Esposito (Cava de' Tirreni, Italy)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 8 October 2012 (Case R 444/2011-1) relating to revocation proceedings between Mr Michele Esposito and Optilingua Holding SA.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Optilingua Holding SA to pay the costs.

      (1)  OJ C 38, 9.2.2013.


title: Case C-149/12 P: Appeal brought on 27 March 2012 by Xeda International SA, Pace International LLC against the judgment of the General Court (Fifth Chamber) delivered on 19 January 2012 in Case T-71/10: Xeda International SA, Pace International LLC v European Commission

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/13

         Appeal brought on 27 March 2012 by Xeda International SA, Pace International LLC against the judgment of the General Court (Fifth Chamber) delivered on 19 January 2012 in Case T-71/10: Xeda International SA, Pace International LLC v European Commission
   (Case C-149/12 P)
   2012/C 165/21
   Language of the case: English

      Parties

      Appellants: Xeda International SA, Pace International LLC (represented by: K. Van Maldegem, C. Mereu, avocats)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               —

               Set aside the Judgment of the General Court in case T-71/10; and

               —

               Annul the decision not to include diphenylamine (‘DPA’) in Annex I to Council Directive 91/414/EEC (1) and holding that Member States must withdraw authorizations for plant protection products containing DPA by 30 May 2010; or

               —

               Alternatively, refer the case back to the General Court to rule on the Appellant's Application for annulment; and

               —

               Order the Respondent to pay all the costs of these proceedings (including the costs before the General Court).

      Pleas in law and main arguments

   The Appellants submit that, in dismissing their application for annulment in respect of the decision of the Commission to not include DPA in Annex I to Council Directive 91/414/EEC and holding that Member States must withdraw authorizations for plant protection products containing DPA by 30 May 2010, the General Court breached Union law. In particular, the Appellants contend that the General court committed a number of errors in its interpretation of the facts and of the legal framework as applicable to the Appellants' situation. That resulted in it making a number of errors in law, in particular:

               —

               By holding that the issue regarding the possible formation of nitrosamines was not the principal motivation for the adoption of the Commission's decision, when the reasoning given by the General Court in the Judgment supported the opposite view.

               —

               By confusing two stages in the review process for DPA under Regulation 1490/2002 (2), as amended by Regulation 10/95/2007 (3), which led the General Court to decide wrongly that the Appellant's rights of defence had not been breached.

               —

               By finding, that the question relating to the possible formation of nitrosamines was raised in June 2008 rather than January 2008 as the documentary evidence clearly showed, the General Court's decision that the delay in the process by the European Food Safety Authority in no way denied the Appellants of their right to withdraw support for the inclusion of DPA in Annex I to Council Directive 91/414/EEC, was invalidated.

         For these reasons the Appellants claim that the judgment of the General Court in Case T-71/10 should be set aside and the decision of the Commission not to include DPA in Annex I to Council Directive 91/414/EEC and holding that Member States must withdraw authorizations for plant protection products containing DPA by 30 May 2010, should be annulled.

      (1)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market
   OJ L 230, p. 1

      (2)  Commission Regulation (EC) No 1490/2002 of 14 August 2002 laying down further detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC and amending Regulation (EC) No 451/2000
   OJ L 224, p. 23

      (3)  Commission Regulation (EC) No 1095/2007 of 20 September 2007 amending Regulation (EC) No 1490/2002 laying down further detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC and Regulation (EC) No 2229/2004 laying down further detailed rules for the implementation of the fourth stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC
   OJ L 246, p. 19


title: Case T-216/05: Action brought on 31 May 2005 by Mebrom NV against the Commission of the European Communities

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/44

         Action brought on 31 May 2005 by Mebrom NV against the Commission of the European Communities
   (Case T-216/05)
   (2005/C 182/81)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 31 May 2005 by Mebrom NV, established in Rieme-Ertvelde (Belgium), represented by C. Mereu and K. Van Maldegem, lawyers.
   The applicant claims that the Court should:

               —

               to annul Commission Decision A(05)4338 — D/6l76 of 11 April 2005;

               —

               to order the Commission to allocate a l2-month quota to the applicant pursuant to Article 7 of Regulation 2037/2000; and

               —

               to order the Commission to pay all costs and expenses in these proceedings.

         Pleas in law and main arguments
   The applicant imports Methyl Bromide (MBr) in the EU. Methyl Bromide is a controlled substance within the meaning of Regulation (EC) No 2037/2000 of the European Parliament and Council of 29 June 2000 on substances that deplete the ozone layer (1). With the present application, the applicant seeks the annulment of the Commission's decision rejecting the applicant's request for a quota for the importation of Methyl Bromide in the European Union for critical uses for 2005.
   In support of its application, the applicant submits that the Commission deprived the applicant of its right to an allocation of a 12-month import quota for the importation of Methyl Bromide in the EU in 2005. The applicant invokes that the Commission manifestly misapplied the applicable legal framework. According to the applicant, the Commission furthermore violated Article 7 of Regulation 2037/2000 which, according to the applicant, confers to it a specific right to obtain a 12-month Methyl Bromide quota for 2005. The applicant also claims that the Commission acted beyond its competence conferred by Article 7 of Regulation 2037/2000. Finally, the applicant invokes the infringement of the principle of legal certainty as the Commission failed to establish a predictable system of import quotas for those who are subject to it, and frustrated the applicant's legitimate expectations in obtaining an import quota on the basis of Article 7 of Regulation 2037/2000, the Commission's Notice to importers of July 2004 (2) and an e-mail message from the defendant of 10 December 2004, addressed to the applicant and confirming that its import quota for 2005 was in the process of being notified to him.

      (1)  OJ L 244, p. 1

      (2)  Notice to importers in the European Union in 2005 of controlled substances that deplete the ozone layer, regarding Regulation (EC) No 2037/2000 of the European Parliament and of the Council on substances that deplete the ozone layer (OJ 2004 C 187, p. 11)


title: Case T-260/08: Action brought on 3 July 2008 — Indo Internacional v OHIM — Visual (VISUAL MAP)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/54

         Action brought on 3 July 2008 — Indo Internacional v OHIM — Visual (VISUAL MAP)
   (Case T-260/08)
   (2008/C 223/96)
   Language in which the application was lodged: English
   Parties

      Applicant: Indo Internacional, SA (Sant Cugat del Vallės, Spain) (represented by: X. Fàbrega Sabaté and M. Curell Aguilà, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Visual SA (Saint Apollinaire, France)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 April 2008 in case R 700/2007-1; and

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘VISUAL MAP’ for services in class 44 — application No 393 2936

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

      Mark or sign cited: French trade mark registration No 043 303 854 of the word mark ‘VISUAL’ for services in class 44

      Decision of the Opposition Division: Rejection of the Community trade mark application in its entirety

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1) of Council Regulation No 40/94 as there is no likelihood of confusion between the conflicting trade marks.


title: Case C-253/06: Order of the President of the Court of 27 February 2007 — Commission of the European Communities v Federal Republic of Germany

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/28

         Order of the President of the Court of 27 February 2007 — Commission of the European Communities v Federal Republic of Germany
   (Case C-253/06) (1)

   (2007/C 96/55)

      Language of the case: German

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

      (1)  OJ C 273, 30.9.2006.


title: Case C-52/11 P: Appeal brought on 4 February 2011 by Fernando Marcelino Victoria Sánchez against the order delivered by the General Court (Fourth Chamber) on 17 November 2010 in Case T-61/10

text:
               2.4.2011

               EN

               Official Journal of the European Union

               C 103/17

         Appeal brought on 4 February 2011 by Fernando Marcelino Victoria Sánchez against the order delivered by the General Court (Fourth Chamber) on 17 November 2010 in Case T-61/10
   (Case C-52/11 P)
   2011/C 103/31
   Language of the case: Spanish

      Parties

      Appellant: Fernando Marcelino Victoria Sánchez (represented by: P. Suarez Plácido, lawyer)

      Other parties to the proceedings: European Parliament and European Commission

      Form of order sought

   The appellant claims that the Court of Justice should:

               —

               Annul the order of 17 November 2010 of the Fourth Chamber of the General Court and the decision relating to costs, and declare that the action for failure to act brought by Mr Victoria Sánchez is admissible and not manifestly unfounded;

               —

               Consequently, take a decision on the substance of the case, or in the alternative, after declaring the case admissible and founded, refer the case back to the General Court for judgment and order the respondent institutions to pay the costs.

      Grounds of appeal and main arguments

   The appellant raises the following grounds of appeal:

               1.

               Infringement of Article 44 of the Rules of Procedure of the General Court since the application initiating the proceedings contains the subject-matter of the proceedings, a summary of the grounds of appeal raised and, finally, the form of order sought by the action, which is set out very clearly in the application as follows: ‘A declaration that the failure of the European Parliament and of the Commission to respond to the application made by way of letters on 6 October 2009 is contrary to European Union law and an order for those institutions to remedy the situation’.

               2.

               Infringement of Articles 20(2)(d) of the Treaty on the Functioning of the European Union (TFEU) (formerly Article 17 EC), Article 24 TFEU (formerly Article 21 EC), Article 227 TFEU (formerly Article 194 EC), in conjunction with Article 58 of the Statue of the Court of Justice. That infringement relates to the petition which Mr Victoria Sánchez sent to the European Parliament in 2008 in which it drew that institution's attention to the risks incurred by Spanish citizens who dare to denounce the political corruption and tax fraud taking place in Spain. Together with the petition sent to the Parliament he submitted a contract signed by important Spanish personalities — including a named lawyer who works for the largest law firm in Spain and Portugal — which recounted how all of those persons were defrauding the State Treasury and Spanish citizens by means of fictitious undertakings opaque to the Spanish State. The petition was shelved without being granted any attention and no Spanish MEP responded to the subsequent requests for support made by the appellant — in the form of 10 emails — in which he requested the cooperation of his representatives to ensure his physical integrity in the light of the threats which he had received.

               3.

               Infringement, by the respondent institutions, of the fundamental rights laid down in Article 6 EU, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. The European Commission's failure to act in response to the letter sent on 6 October 2009 constitutes a serious infringement of Article 6 EU since that institution is required to ensure a democratic area of co-existence for all Europeans, equal access of European citizens to the European Union institutions and effective legal protection, unless tax fraud falls within the jurisdiction of the European Court of Human Rights and that court regards tax payers as indirectly harmed by it. In addition, the appellant draws attention to the legal uncertainty for Community law brought about by successive Spanish court decisions which ignore the observations made by the appellant's legal representatives regarding compliance with European law, in particular compliance with the judgment of the Court of Justice in Joined Cases C-570/07 and C-571/07 (1) on the freedom of establishment of pharmacies in Spain.

               4.

               An infringement of Articles 265 and 266 TFEU since what was sought in the proceedings before the General Court was a declaration that the failure on the part of the Parliament and the Commission to respond to the application made on 6 October 2009 is contrary to Community law and an order for those institutions to remedy that error, ex lege, pursuant to Article 266 TFEU. In order to remedy that error the body from which the annulled act emanated or which failed to take action contrary to the Treaties should be required to adopt the measures necessary to comply with the judgment of the Court of Justice of the European Union and, in this instance, remedy its failure to act by responding to the application made by way of a letter on 6 October 2009.

      (1)  Judgment of 1 June 2010, not yet published in the ECR.


title: Case C-329/07: Order of the President of the Court of 11 January 2008 — Commission of the European Communities v French Republic

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/24

         Order of the President of the Court of 11 January 2008 — Commission of the European Communities v French Republic
   (Case C-329/07) (1)

   (2008/C 79/44)

      Language of the case: French

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

      (1)  OJ C 211, 8.9.2007.


title: Case C-159/08 P: Appeal brought on 15 April 2008 by Isabella Scippacercola and Ioannis Terezakis against the judgment of the Court of First Instance (Fifth Chamber) delivered on 16 January 2008 in Case T-306/05: Isabella Scippacercola and Ioannis Terezakis v Commission of the European Communities

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/18

         Appeal brought on 15 April 2008 by Isabella Scippacercola and Ioannis Terezakis against the judgment of the Court of First Instance (Fifth Chamber) delivered on 16 January 2008 in Case T-306/05: Isabella Scippacercola and Ioannis Terezakis v Commission of the European Communities
   (Case C-159/08 P)
   (2008/C 171/31)
   Language of the case: English
   Parties

      Appellants: Isabella Scippacercola, Ioannis Terezakis (represented by: Mr B. Lombart, avocat)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought
   The appellants claim that the Court should:

               —

               Set aside the judgment of the Court of First Instance in Case T-306/05 Isabella Scippacercola and Ioannis Terezakis v Commission of the European Communities dismissing their application seeking to annul the Commission Decision dated 2 May 2005 taken pursuant to Article 7(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 (1) notified to the appellants on 6 February 2008 refusing to open an in-depth investigation concerning the excessive charges levied by the new Athens International Airport of Spata holding a dominant position with respect to the:

                           (a)

                           passenger security charge

                           (b)

                           passenger terminal facility charge

                           (c)

                           charges for car parking services

               —

               Order that the costs of, and occasioned by these proceedings, and the proceedings of the Court of First Instance, be borne by the Commission.

         Pleas in law and main arguments
   The appellants submit that the Court of First Instance failed to establish that the Commission, by declining to examine AIA's security, terminal facilities and car parking charges in relation to their costs and embarking on inconclusive comparisons of AIA's charges with those levied at other European airports not providing competing services for the purposes of Article 82 EC, infringed Community law as laid down in Case 27/76 United Brands v. Commission and that the Court of First Instance infringed Community law by failing to establish that the Commission, first, did not consider all relevant matters of fact which existed at the time the contested decision was adopted as required by case law C-119/97 Ufex and others v. Commission, and, second, based its contested decision on materially incorrect facts vitiated therefore by a manifest error of assessment and misuse of powers.
   It is argued that the Court of First Instance erred in law by not finding that the Commission made an error of assessment when it considered that the security checks did not constitute an economic activity and that the car parking services did not constitute a relevant market for the purposes of Article 82 EC.
   With regard to the alleged error of law concerning the application to passengers of a higher terminal facility charge for those on intra-Community and international flights than for those on domestic flights, and the application to passengers on scheduled flights of a terminal facility charge and a security charge which are not applied to those travelling on charter flights, the appellants maintain that the Court of First Instance failed to establish that the Commission declined to take care to ensure that the principle of non discrimination was not infringed by AIA's practices.
   Finally, it is submitted that the Court of First Instance failed to rule that the Commission departed from established rights and procedures, first, by disregarding the complainants' figures extracted from official sources showing an excessive pricing by AIA, second, by embarking on a comparison between Spata charges and those levied at other European airports which were irrelevant for the purposes of Article 82 EC and, third, by carrying out a request for information sent to AIA in which it failed, inter alia, to examine the construction cost of the airport and the incorporation expenses and set up costs of AIA.

      (1)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, p. 18).


title: Case T-204/13 P: Appeal brought on 8 April 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 28 January 2013 in Case F-95/12, Marcuccio v Commission

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/52

         Appeal brought on 8 April 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 28 January 2013 in Case F-95/12, Marcuccio v Commission
   (Case T-204/13 P)
   2013/C 156/96
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

      Other party to the proceedings: European Commision

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               Annul in its entirety and without exception the order under appeal;

               —

               Refer the case back to the Civil Service Tribunal.

      Pleas in law and main arguments

   The pleas in law and main arguments are the same as those set out in Case T-203/13 P Marcuccio v Commission.


title: Case C-679/16: Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 30 December 2016 — A

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/16

         Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 30 December 2016 — A
   (Case C-679/16)
   (2017/C 086/20)
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

      Appellant: A

      Other party: Espoon kaupungin sosiaali- ja terveyslautakunnan yksilöasioiden jaosto

      Questions referred

               1.

               Is a benefit such as personal assistance in accordance with the Disability Services Law a sickness benefit within the meaning of Article 3(1) of Regulation No 883/2004? (1)

               2.

               If the answer to Question 1 is in the negative, are the rights of Union citizens to move and reside freely in the territory of another Member State, laid down in Articles 20 and 21 TFEU, restricted in a situation in which the grant abroad of a benefit such as personal assistance in accordance with the Disability Services Law is not separately provided for and the conditions for grant of the benefit are interpreted in such a way that personal assistance is not granted in another Member State in which the person completes a three-year course of higher education studies leading to a degree?

                           —

                           Is it relevant, in assessing the matter, that a benefit such as personal assistance may be granted in Finland in a municipality other than the person’s home municipality, for example when the person is studying in another municipality in Finland?

                           —

                           Must relevance be attached, in assessing the matter with respect to EU law, to the rights derived from Article 19 of the United Nations Convention on the Rights of Disabled Persons?

               3.

               If the Court of Justice considers, in its answer to Question 2, that an interpretation of national law such as that in the present case constitutes a restriction of freedom of movement, is such a restriction none the less justifiable on compelling grounds of the public interest in connection with the obligation of the municipality to supervise the arranging of personal assistance, the municipality’s possibilities of choosing the most suitable way of arranging assistance, and the maintenance of the coherence and efficacy of the system of personal assistance in accordance with the Disability Services Law?

      (1)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1).


title: Case T-246/12: Action brought on 4 June 2012 — Cat Media Pty v OHIM — Avon Products (RETANEW)

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/25

         Action brought on 4 June 2012 — Cat Media Pty v OHIM — Avon Products (RETANEW)
   (Case T-246/12)
   2012/C 243/44
   Language in which the application was lodged: English

      Parties

      Applicant: Cat Media Pty Ltd (Warriewood, Australia) (represented by: I. De Freitas, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Avon Products, Inc. (New York, United States)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2012 in case R 740/2011-1;

               —

               Order the defendant and the other party to the proceedings before the Board of Appeal to pay the appellant’s costs in relation to these proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘RETANEW’, for goods in class 3 — Community trade mark application No W00884450

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

      Mark or sign cited in opposition: Community trade mark registration No 3531051 of the word mark ‘ANEW’ for goods in classes 3 and 5

      Decision of the Opposition Division: Rejected the opposition in its entirety

      Decision of the Board of Appeal: Annulled the contested decision and refused the application in its entirety

      Pleas in law:

               —

               Infringement of Article 8(1)(b) of Council Regulation No 207/2009.


title: Case T-462/13 R: Order of the President of the General Court of 16 October 2013 — Comunidad Autónoma del País Vasco and Itelazpi v Commission (Application for interim measures — State aid — Decision declaring aid to be incompatible with the internal market and ordering its recovery and the cancellation of any outstanding payments — Application for suspension of operation — Failure to show urgency)

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/15

         Order of the President of the General Court of 16 October 2013 — Comunidad Autónoma del País Vasco and Itelazpi v Commission
   (Case T-462/13 R)
   (Application for interim measures - State aid - Decision declaring aid to be incompatible with the internal market and ordering its recovery and the cancellation of any outstanding payments - Application for suspension of operation - Failure to show urgency)
   2013/C 359/29
   Language of the case: Spanish

      Parties

      Applicants: Comunidad Autónoma del País Vasco, and Itelazpi, SA (Zamudio, Spain) (represented by: J. Buendía Sierra, A. Lamadrid de Pablo, M. Muñoz de Juan and N. Ruiz García, lawyers)

      Defendant: European Commission (represented by: É. Gippini Fournier, B. Stromsky et P. Němečková, acting as Agents)

      Re:

   Application for suspension of operation of Articles 3 and 4 of Commission Decision C(2013) 3204 final of 19 June 2013 on State aid SA.28599 (C 23/2010) (ex NN 36/010, ex CP 163/2009) implemented by the Kingdom of Spain for the deployment of digital terrestrial television in remote and less-urbanised areas (other than Castilla-La Mancha).

      Operative part of the order

               1.

               The application for interim measures is dismissed;

               2.

               The costs are reserved.


title: Case T-491/07: Judgment of the General Court of 29 November 2012 — CB v Commission (Competition — Decision of an association of undertakings — Market for issuing payment cards in France — Decision finding an infringement of Article 81 EC — Tariff measures applicable to ‘new entrants’ — Membership fees and so-called ‘regulation of customer function’ and ‘sleeper member fee’ mechanisms — Relevant market — Object of the measures at issue — Restriction of competition by object — Article 81(3) EC — Manifest errors of assessment — Principle of sound administration — Proportionality — Legal certainty)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/39

         Judgment of the General Court of 29 November 2012 — CB v Commission
   (Case T-491/07) (1)

   (Competition - Decision of an association of undertakings - Market for issuing payment cards in France - Decision finding an infringement of Article 81 EC - Tariff measures applicable to ‘new entrants’ - Membership fees and so-called ‘regulation of customer function’ and ‘sleeper member fee’ mechanisms - Relevant market - Object of the measures at issue - Restriction of competition by object - Article 81(3) EC - Manifest errors of assessment - Principle of sound administration - Proportionality - Legal certainty)
   2013/C 26/73
   Language of the case: French

      Parties

      Applicant: Groupement des cartes bancaires ‘CB’ (Paris, France) (represented by: A. Georges, J. Ruiz Calzado, É. Barbier de la Serre, then J. Ruiz Calzado and F. Pradelles, lawyers)

      Defendant: European Commission (represented: initially by F. Arbault, O. Beynet and V. Bottka, then O. Beynet, V. Bottka and B. Mongin, acting as Agents)

      Interveners in support of the applicant: BNP Paribas (Paris, France) (represented by: O. de Juvigny and D. Berg, lawyers); BPCE, formerly Caisse nationale des caisses d’épargne et de prévoyance (CNCEP) (Paris) (represented by: B. Bär-Bouyssière and A. de Beaugrenier, lawyers); and Société Générale (Paris) (represented by: A. Barav and D. Reymond, lawyers).

      Re:

   Application for annulment of Commission Decision C(2007) 5060 final of 17 October 2007 relating to a proceeding under Article 81 EC (Case COMP/D1/38.606 — Groupement des Cartes Bancaires ‘CB’).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Groupement des cartes bancaires ‘CB’ to bear its own costs and to pay those incurred by the European Commission;

               3.

               Orders BPCE, BNP Paribas and Société Générale to bear their own costs.

      (1)  OJ C 64, 8.3.2008.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber, extended composition) of 14 July 1995 in Case T-166/94: Koyo Seiko Co. Ltd v. Council of the European Union (Anti-dumping - Injury)

text:
 14 . 10 . 95           EN                 Official Journal of the European Communities                                  No C 268/21
                                                     COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                              of Arendt & Medernach, 8—10 rue Mathias Hardt v .
                          of 13 July 1995                             Council of the European Union ( Agents : Ramon Torrent,
m Case T-557/93 : Lars Bo Rasmussen v. Commission of the              Jorge Monteiro, Hans-Jiirgen Rabe and Georg Berrisch ),
                                                                      supported by Commission of the European Communities
                    European Communities ( 1 )
                                                                      (Agents : Eric White and Claus-Michael Happe ) and
(Officials — Reports procedure — Staffreport — Delay in               Federation of European Bearing Manufacturers '
    drawing up — Promotion — Procedural irregularity)                 Associations, established in Frankfurt-on-Main ( Germany ),
                           ( 95/C 268/44 )                            represented by Dietrich Ehle and Volker Schiller,
                                                                      Rechtsanwàlte, Cologne, with an address for service in
                                                                      Luxembourg at the Chambers of Marc Lucius, 6 rue Michel
                  (Language of the case: Frencb)                      Welter — application for the annulment of Council
                                                                      Regulation ( EEC ) No 55/93 of 8 January 1993 imposing a
In Case T-557/93 : Lars Bo Rasmussen, an official of the              definitive anti-dumping duty on imports into the
Commission of the European Communities , residing at                  Community of outer rings of tapered roller bearing
Dalheim ( Luxembourg ), represented by Jean-Noël Louis, of            originating in Japan ( OJ No L 9 , 1993 , p . 7 ) — the Court of
the Brussels Bar, with an address for service in Luxembourg           First Instance ( Fourth Chamber, extended composition ),
at the office of Fiduciaire Myson Sari, 1 rue Glesener v .            composed of: K. Lenaerts, President, R. Schintgen, R.
Commission of the European Communities ( Agent: Ana                   Garcia-Valdecasas, C. W. Bellamy and P. Lindh, Judges; H.
Maria Alves Vieira ) — application for the annulment, first,         Jung, Registrar, has given a judgment on 14 July 1995 , in
of the decision of the Commission not to promote the                  which it :
applicant to grade A 4 in the 1992 promotion procedure
and, second, of the decision, published in 'Administrative            1 , dismisses the application;
Notices' No 770 of 4 February 1993 , to promote certain
officials to grade A4 — the Court of First Instance (Third            2 , orders the applicant to pay its own costs and the costs of
Chamber ), composed of: J. Biancarelli, President, and C. P.                the Council and Febma;
Briët and C. W. Bellamy, Judges; H. Jung, Registrar, has
given a judgment on 13 July 1995 , in which it:                       3 , orders the Commission to bear its own costs.
1 , annuls the decision of the Commission not to promote
                                                                      f 1 ) OJ No C 160, 12 . 6 . 1993 .
      the applicant to grade A 4 in the 1992 promotion
     procedure;
2 , dismisses the remainder of the action;
3 , orders the Commission to pay the costs.
                                                                       JUDGMENT OF THE COURT OF FIRST INSTANCE
(') OJ No C 1 , 4 . 1 . 1994 .                                                  ( Fourth Chamber, extended composition )
                                                                                of 14 July 1995
                                                                      in Case T-275/94: Groupement des Cartes Bancaires 'CB ' v.
                                                                              Commission of the European Communities ( ] )
                                                                      (Competition — Fine — Default interest — Application of
                                                                                payments)
JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                ( 95/C 268/46 )
           ( Fourth Chamber, extended composition )
                         of 14 July 1995                                              (Language of the case: French)
in Case T-166/94 : Koyo Seiko Co. Ltd v. Council of the
                        European Union ( ] )
                                                                      In Case T-275/94 : Groupement des Cartes Bancaires ' CB',
                     (Anti-dumping — Injury)                          having its registered office in Paris ( France ), represented by
                           ( 95/C 268/45                              Alain Georges and Hugues Calvet, of the Paris Bar, with an
                                                                      address for service in Luxembourg at the Chambers of
                                                                      Aloyse May, 31 Grand-Rue, against Commission of the
                 (Language of the case: English)                      European Communities ( Agents : Enrico Traversa and
                                                                      Géraud de Bergues ) — application for annulment of the
In Case T-166/94 : Koyo Seiko Co . Ltd, established in Osaka          Commission's letters of 7 June and 15 July 1994 in which
(Japan ), represented by Jacques Buhart, of the Paris Bar, and        the Commission required, for the period 30 June 1992 to the
Charles Kaplan, Barrister, of the Bar of England and Wales,           date of actual settlement, payment of default interest on the
with an address for service in Luxembourg at the Chambers             amount of the fine imposed on the applicant by Commission


title: Case F-5/06: Action brought on  18 January 2006  — Patak Dennstedt v Commission

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/34

         Action brought on 18 January 2006 — Patak Dennstedt v Commission
   (Case F-5/06)
   (2006/C 74/67)
   Language of the case: French
   Parties

      Applicant: Dunja Patak Dennstedt (London, United Kingdom) (represented by: S. Rodrigues, Y. Minatchy, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               Annul the decision of the Appointing Authority of 4 October 2005 dismissing the applicant's objection taken together with the decision to reject the application previously submitted by the applicant;

               —

               Order the Commission to pay the applicant the sum of EUR 35 000 as compensation for the loss suffered;

               —

               In the alternative, order the withdrawal of the disputed document from the inquiry report of 18 September 2001;

               —

               In any event, order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, a Commission official receiving invalidity allowance, brought an action before the Court of First Instance for the annulment of certain decisions taken by the defendant. During those proceedings, she gained knowledge of a number of documents relating to internal Commission proceedings which concerned her and submitted an application, firstly, to obtain the withdrawal from the file of documents in which an official appeared to draw personal conclusions about the applicant's occupational illness and, secondly, to check whether the conduct of certain officials during a disciplinary procedure had complied with the requirements under the Staff Regulations.
   The application having been rejected, the applicant entered an objection, which was also dismissed by the appointing authority.
   In her action, the applicant first submits that the decision dismissing her objection is in breach of the defendant's obligations towards its officials. In her view, that decision infringes a number of general legal principles, such as the principle of good administration and the duty to have regard for the interests of officials.
   The applicant subsequently adds that the Commission officials who spread and even included in an inquiry report false information about her occupational illness were guilty of serious misconduct. That misconduct leads to liability on the part of the defendant, who should therefore pay compensation for the material and non-material damage suffered by the applicant.


title: JUDGMENT OF THE COURT of 14 January 1997 in Joined Cases C-192/95 to C-218/95 (reference for a preliminary ruling from the Tribunal d'Instance de Paris): Société Comateb and Others v. Directeur Général des Douanes et Droits Indirects (Dock dues - Recovery of sums not due - Obligation to pass on the charge - Overseas departments)

text:
8 . 3 . 97            EN                    Official Journal of the European Communities                                    No C 74/3
1 . dismisses the application;                                              where it is established that the charge has been
                                                                            borne in its entirety by another person and that
                                                                            reimbursement of the trader would constitute unjust
2 . orders the Kingdom of Spain to pay the costs.                           enrichment. It is for the national courts to determine,
                                                                            in the light of the facts in each case, whether those
(') OJ No C 208 , 12 . 8 . 1995 .                                           conditions have been satisfied. If the burden of the
                                                                            charge has been passed on only in part, it is for
                                                                            the national authorities to reimburse the trader the
                                                                            amount not passed on.
                                                                       2 . The fact that there is a legal obligation to incorporate
                JUDGMENT OF THE COURT                                       the charge in the cost price does not mean that there is
                        of 14 January 1997                                  a presumption that the entire charge has been passed
                                                                            on, even where failure to comply with that obligation
in Joined Cases C- 192/95 to C-2 18/95 (reference for a                     carries a penalty.
preliminary ruling from the Tribunal d'Instance de Paris ):
Societe Comateb and Others v. Directeur General des
                 Douanes et Droits Indirects (')                       3 . Where, although the charge has been passed on to the
                                                                            purchaser, domestic law permits the trader to claim
(Dock dues — Recovery of sums not due — Obligation to                       that the illegal levying of the charge has caused him
          pass on the charge — Overseas departments)                        damage which excludes, in whole or in part, any
                            ( 97/C 74/04 )                                  unjust enrichment, it is for the national court to give
                                                                            such effect to the claim as may be appropriate.
                 (Language of the case: French)                        (') OJ No C 208 , 12 . 8 . 1995 .
    (Provisional translation; the definitive translation will be
           published in the European Court Reports)
In Joined Cases C-192/95 to C-218/95 : reference to the
                                                                                JUDGMENT OF THE COURT
Court under Article 177 of the EC Treaty by the Tribunal
d'Instance de Paris, for a preliminary ruling in the                                             ( Sixth Chamber)
proceedings pending before that court between Société                                         of 16 January 1997
 Comateb ( C-192/95 ), Société Panigua ( C-193/95 ), Société
 Édouard et Fils ( C-194/95 ), Société de Distribution de              in Case C-134/95 (reference for a preliminary ruling from
Vins et Liqueurs ( C- 1 95/95 ), Établissements André Haan             the Pretura Circondariale, Biella): Unità Socio-Sanitaria
 ( C-l 96/95 ), Société Diffusion Générale de Quincaillerie            Locale n. 47 di Biella (USSL) v. Istituto Nazionale per
 ( C-197/95 ), Société Diffusion Générale ( C-198/95 ), Société         l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) (')
 Cama Renault ( C-199/95 ), SCP Ovide et Dorville ( C-200/              (Workers — Labour procurement service — Statutory
 95 ), Société Ducros Guadeloupe ( C-201 /95 ), Société                                              monopoly)
 Comptoir Commercial Caraïbes ( C-202/95 ), Société Giafa
 ( C-203/95 ), Société LVS ( C-204/95 ), Société Catherine et                                        97/C 74/05 )
Jean-Claude Tabar Nouval ( C-205/95 ), Société l'Heure et
 l'Or ( C-206/95 ), Société Général Bazar Bricolage ( C-207/                            (Language of the case: Italian)
 95 ), Société Grain d'Or ( C-208/95 ), Société Cash Service
 ( C-209/95 ), Établissements Efira ( C-210/95 ), Société Fa
 randole ( C-211/95 ), Société Carat ( C-212/95 ), Société Rio            (Provisional translation; the definitive translation will be
  ( C-213/95 ), Société Guadaloupéenne de Distribution Mod                       published in the European Court Reports)
 erne ( SGDM ) ( C-214/95 ), Martinique Automobiles SA
  (C-215/95 ), Socovi Sari ( C-216/95 ), Établissements Ga             In Case C- 134/95 : reference to the Court under Article 177
  briel Vangour et Cie Sari ( C-217/95 ), Simat Guadeloupe
                                                                        of the EC Treaty from the Pretura Circondariale (District
  Sari ( C-218/95 ) and Directeur Général des Douanes et
  Droits Indirects — on the interpretation of Community                 Magistrate's Court), Biella ( Italy ), for a preliminary ruling
  law concerning repayment of sums not due, the Court                   in the proceedings pending before that court between
                                                                        Unità Socio-Sanitaria Locale n. 47 di Biella ( USSL ) and
 composed of: G. C. Rodriguez Iglesias, President, G. F.
  Mancini, J. C. Moitinho de Almeida and J. L. Murray,                  Istituto Nazionale per l'Assicurazione contro gli Infortuni
  Presidents of Chamber, P. J. G. Kapteyn, D. A. O. Edward              sul Lavoro ( INAIL ) — on the interpretation of Articles 48 ,
  ( Rapporteur), J. -P. Puissochet, P. Jann and H. Ragnemalm,           49, 54 and 90 of the EC Treaty — the Court ( Sixth
  Judges, Advocate-General : G. Tesauro, Registrar: H. von              Chamber ), composed of: J. L. Murray, President of the
  Holstein, Deputy Registrar, has given a judgment on                   Fourth Chamber, acting for the President of the Sixth
   14 January 1997 in which it rules :                                  Chamber, C. N. Kakouris, P. J. G. Kapteyn ( Rapporteur ),
                                                                        G. Hirsch and H. Ragnemalm, Judges; M. B. Elmer,
                                                                        Advocate-General; L. Hewlett, Administrator, for the
   1 . A Member State may resist repayment to the trader of             Registrar, has given a judgment on 16 January 1997, in
       a charge levied in breach of Community law only                  which it has ruled :


title: Case C-331/08: Action brought on 18 July 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/9

         Action brought on 18 July 2008 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-331/08)
   (2008/C 272/13)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: U. Wölker and G. Rozet, acting as Agents)

      Defendant: Grand Duchy of Luxembourg
   Form of order sought

               —

               Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), or in any event by failing to notify those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 19 of that directive;

               —

               order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposition of Directive 2004/35/EC expired on 30 April 2007. At the date on which the present action was brought, the defendant had not yet adopted the measures necessary for transposition.

      (1)  OJ L 143, p. 56.


title: Judgment of the Court of First Instance of 20 July 2004 in Case T-311/02: Vitaly Lissotschenko and Joachim Hentze v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Application to register the word mark LIMO — Absolute grounds for refusal — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/15

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 20 July 2004
   in Case T-311/02: Vitaly Lissotschenko and Joachim Hentze v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Application to register the word mark LIMO - Absolute grounds for refusal - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)
   (2004/C 251/25)
   Language of the case: German
   In Case T-311/02: Vitaly Lissotschenko, residing in Dortmund (Germany), Joachim Hentze, residing in Werl (Germany), represented by B. Hein, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. Weberndörfer and G. Schneider) — action brought against the decision of the Second Board of Appeal of OHIM of 31 July 2002 (Case R 363/2000-2) concerning registration of the word mark LIMO as a Community trade mark — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, P. Mengozzi and M.E. Martins Ribeiro, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 20 July 2004, in which it:

               1.

               Dismisses the action;

               2.

               Orders the applicants to pay the costs.

      (1)  OJ C 305 of 7.12.2002.


title: Case T-16/11: Action brought on 14 January 2011 — Netherlands v Commission

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/27

         Action brought on 14 January 2011 — Netherlands v Commission
   (Case T-16/11)
   2011/C 72/44
   Language of the case: Dutch

      Parties

      Applicant: Kingdom of the Netherlands (represented by: C. Wissels, M. de Ree and M. Noort, acting as Agents)

      Defendant: European Commission

      Form of order sought

               —

               Annul Article 1 of Commission Decision 2010/668/EU of 4 November 2010 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) in so far as Article 1 of that decision concerns the Netherlands and relates to the financial correction in the (total) amount of EUR 28 947 149,31 applied in respect of the expenditure declared for the years 2003 to 2008 in the context of the quota system in relation to the production of potato starch;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   By Decision 2010/668/EU the Commission applied a flat rate correction of 10 % to the amounts declared by the Netherlands authorities which were paid in the years 2003 to 2008 under the European aid scheme in respect of potato starch. According to the Commission, the Netherlands authorities paid the aid to the starch manufacturer and the potato producer before the latter was paid the full amount of the minimum price for the potatoes supplied.
   The Netherlands Government takes the view that the minimum price was paid in full before the aid for the starch manufacturer and the potato producer was granted. The minimum price was paid, on the one hand, by setting off part of the minimum price against an outstanding (private-law) claim by the manufacturer against the producer and, on the other hand, by a transfer of the balance of the minimum price to a (bank) account nominated by the producer.
   The applicant relies on five pleas in law in support of its action.
   1.   First plea: infringement of Article 7(4) of Regulation No 1258/99 (1) and of Article 31 of Regulation No 1290/2005, (2) in conjunction with Article 5 of Regulation No 1868/94, (3) Article 11 of Regulation No 97/95, (4) Article 10 of Regulation No 2236/2003, (5) Article 26 of Regulation No 2237/2003 (6) and Article 20 of Regulation No 1973/2004, (7) in that expenditure was excluded from financing even though the conditions for the grant of the premium and the direct aid were met, because the minimum price was paid by means of set-off and transfer.
   2.   Second plea: infringement of Article 7(4) of Regulation No 1258/99 and of Article 31 of Regulation No 1290/2005, in conjunction with Article 5 of Regulation No 1868/94, Article 11 of Regulation No 97/95, Article 10 of Regulation No 2236/2003, Article 26 of Regulation No 2237/2003 and Article 20 of Regulation No 1973/2004, in that expenditure was excluded from financing even though the minimum price was available to the producers before the premium and direct aid were granted.
   3.   Third plea: infringement of Article 7(4) of Regulation No 1258/99, Article 8 of Regulation No 1663/95, (8) Article 31 of Regulation No 1290/2005, Article 11 of Regulation No 885/2006 (9) and also of the rights of the defence in that expenditure was excluded from financing even though the inter partes procedure prescribed under those provisions was not followed in respect of all the findings on which that exclusion was based.
   4.   Fourth plea: infringement of Article 7(4) of Regulation No 1258/99 and of Article 31 of Regulation No 1290/2005, in conjunction with Article 11 of Regulation No 97/95, Article 10 of Regulation No 2236/2003, Article 26 of Regulation No 2237/2003 and Article 20 of Regulation No 1973/2004 in that expenditure was excluded from financing even though payment of the minimum price could be monitored by the recipient States through the paying agency.
   5.   Fifth plea: infringement of Article 7(4) of Regulation No 1258/99, Article 31(2) of Regulation No 1290/2005 and the principle of proportionality in that a flat rate correction of 10 % was applied even though the only shortcoming is an erroneous starting point for the application and monitoring of the condition regarding payment of the minimum price.

      (1)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103).

      (2)  Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).

      (3)  Council Regulation (EC) No 1868/94 of 27 July 1994 establishing a quota system in relation to the production of potato starch (OJ 1994 L 197, p. 4).

      (4)  Commission Regulation (EC) No 97/95 of 17 January 1995 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards the minimum price and compensatory payment to be paid to potato producers and of Council Regulation (EC) No 1868/94 establishing a quota system in relation to the production of potato starch (OJ 1995 L 16, p. 3).

      (5)  Commission Regulation (EC) No 2236/2003 of 23 December 2003 laying down detailed rules for the application of Council Regulation (EC) No 1868/94 establishing a quota system in relation to the production of potato starch (OJ 2003 L 339, p. 45).

      (6)  Commission Regulation (EC) No 2237/2003 of 23 December 2003 laying down detailed rules for the application of certain support schemes provided for in Title IV of Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2003 L 339, p. 52).

      (7)  Commission Regulation (EC) No 1973/2004 of 29 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1782/2003 as regards the support schemes provided for in Titles IV and IVa of that Regulation and the use of land set aside for the production of raw materials (OJ 2004 L 345, p. 1).

      (8)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6).

      (9)  Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD (OJ 2006 L 171, p. 90).


title: Case T-218/10: Judgment of the General Court of 30 May 2013 — DHL International v OHIM — Service Point Solutions (SERVICEPOINT) (Community trade mark — Opposition proceedings — Application for Community figurative mark SERVICEPOINT — Earlier Community marks ServicePoint and earlier national marks — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) and Article 76(1) and (2) of Regulation (EC) No 207/2009)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/63

         Judgment of the General Court of 30 May 2013 — DHL International v OHIM — Service Point Solutions (SERVICEPOINT)
   (Case T-218/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark SERVICEPOINT - Earlier Community marks ServicePoint and earlier national marks - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) and Article 76(1) and (2) of Regulation (EC) No 207/2009)
   2013/C 225/140
   Language of the case: German

      Parties

      Applicant: DHL International (Bonn, Germany) (represented: initially by K.-U. Jonas and J. Bogatz, then M. Viefhues, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Service Point Solutions, SA (Barcelona, Spain) (represented: initially by E. Zamora Martinez, then C. Osterrieth, T. Schmitz and A. Doepner, and finally I. Valdelomar Serrano, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 25 February 2012 (Case R 62/2009-2) relating to opposition proceedings between Service Point Solutions, SA and SHL Operations BV.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders DHL International GmbH to pay the costs.

      (1)  OJ C 195, 17.7.2010.


title: Case C-223/13: Action brought on 25 April 2013 — Kingdom of the Netherlands v European Commission

text:
               29.6.2013

               EN

               Official Journal of the European Union

               C 189/10

         Action brought on 25 April 2013 — Kingdom of the Netherlands v European Commission
   (Case C-223/13)
   2013/C 189/20
   Language of the case: Dutch

      Parties

      Applicant: Kingdom of the Netherlands (represented by: M.K. Bulterman, J. Langer, acting as Agents)

      Defendant: European Commission

      Form of order sought

               —

               Annul Commission Regulation (EU) No 93/2013 of 1 February 2013 laying down detailed rules for the implementation of Council Regulation (EC) No 2494/95 concerning harmonised indices of consumer prices, as regards establishing owner-occupied housing price indices (OJ 2013 L 33, p. 14) in so far as Article 4(1) of Regulation No 93/2013 cannot be separated from the other provisions of that regulation;

               —

               in the alternative, annul Article 4(1) of Regulation No 93/2013;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

               First plea:
               Infringement of Article 5(3) of Regulation No 2494/95 (1) and/or of the case-law of the Court of Justice as, under Article 4(1) of Regulation No 93/2013, Eurostat is designated the entity that is to establish a legally binding manual, and not the Commission as an EU institution.

               Second plea:
               Infringement of Article 338(1) TFEU by the use in Article 4(1) of Regulation No 93/2013, for the purposes of the compilation of statistical information, of a handbook instead of one of the legal instruments listed in Article 288 TFEU.

               Third plea:
               Infringement of Articles 5(3) and 14(3) of Regulation No 2494/95, read in conjunction with Article 5a of Decision 1999/468, (2) in that a different procedure is laid down in Article 4(1) of Regulation No 93/2013 than the regulatory procedure with scrutiny required under Regulation No 2494/95.

               Fourth plea:
               Infringement of Articles 290 TFEU and 291 TFEU, read in conjunction with Regulation No 182/2011, (3) in that the procedure laid down with regard to the establishment and updating of a handbook is not the procedure under Article 290 TFEU or one of the procedures provided for in Regulation No 182/2011.

      (1)  OJ 1995 L 257, p. 1.

      (2)  Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23).

      (3)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).


title: Case F-63/08: Action brought on 18 July 2008 — Christoph and Others v Commission

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/25

         Action brought on 18 July 2008 — Christoph and Others v Commission
   (Case F-63/08)
   (2008/C 247/51)
   Language of the case: French
   Parties

      Applicant: Eugen Christoph (Liggiano, Italy) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal, lawyers)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   Annulment of the decisions fixing the applicants' conditions of employment inasmuch as the length of their contract or of the renewal thereof is limited to a fixed term.
   Form of order sought

               —

               Annul the Commission decisions fixing the applicants' conditions of employment as members of the temporary staff within the meaning of the Conditions of Employment of Other Servants of the European Communities and, more specifically, inasmuch as they limited the length of their contract;

               —

               Order the Commission of the European Communities to pay the costs.


title: Case C-439/00: Action brought on 28 November 2000 by the Commission of the European Communities against the French Republic

text:
C 28/22                EN                     Official Journal of the European Communities                                     27.1.2001
Reference for a preliminary ruling by the Hoge Raad der                  3.    For the purposes of the application of criminal law, may
Nederlanden by judgment of that court of 21 November                           ‘leaves’ or ‘ceases to be covered’ also be taken to refer
   2000 in the criminal proceedings against G. Cuomo                           to the mere placing and transport of goods under a
                                                                               Community customs procedure where a third country, as
                                                                               referred to in the directive, is entered as the destination
                                                                               of that transport operation in the accompanying docu-
                         (Case C-434/00)                                       ments but the intention of placing the goods on the
                                                                               market in another Member State was present at the start
                                                                               of the transport operation?
                          (2001/C 28/42)
                                                                         (1) Council Directive 92/12/EEC of 25 February 1992 on the general
                                                                             arrangements for products subject to excise duty and on the
Reference has been made to the Court of Justice of the                       holding, movement and monitoring of such products (OJ 1992
European Communities by judgment of the Hoge Raad                            L 76, p. 1).
der Nederlanden (Supreme Court of the Netherlands) of                    (2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
21 November 2000, received at the Court Registry on                          harmonization of the laws of the Member States relating to
27 November 2000, for a preliminary ruling in the criminal                   turnover taxes — Common system of value added tax: uniform
proceedings against G. Cuomo on the following questions:                     basis of assessment (OJ 1977 L 145, p. 1).
1.   What is to be understood by ‘leaves’ or ‘ceases to be
     covered by’ (onttrekken) the external transit procedure
     within the meaning of the third subparagraph of Article
     5(1) of the Directive on products subject to excise duty (1)
     and of Article 7(3) of the Sixth Directive (2), where such
     leaving or cessation is irregular — that is to say, it occurs
     otherwise than by declaring the goods for release for free
     circulation:
                                                                         Action brought on 28 November 2000 by the Com-
                                                                         mission of the European Communities against the French
                                                                                Republic
     (a)   is it the first action in relation to the goods
           which contravenes a provision connected with that
           procedure, and is the presence of an intention to                                       (Case C-439/00)
           place the goods — partly by that action — on the
           Community market in breach of that provision
           relevant; or                                                                             (2001/C 28/43)
     (b) does it occur (only) when the goods — in this case              An action against the French Republic was brought before the
           after breaking the seal — are unloaded from the               Court of Justice on 28 November 2000 by the Commission of
           vehicle without satisfying the requirement to pro-            the European Communities, represented by Michel Nolin, of
           duce the goods together with the relevant document            its Legal Service, acting as Agent, with an address for service
           at the office of destination in accordance with Article       in Luxembourg at the office of Carlos Gómez de la Cruz,
           22(1) of Regulation (EEC) No 2726/90 (OJ 1990                 Wagner Centre, Kirchberg.
           L 262, p. 1), and is the presence of an intention to
           place the goods — partly by that action — on the
           Community market in breach of Community law                   The Commission of the European Communities claims that
           relevant; or                                                  the Court should:
     (c)   must ‘leaves’ or ‘ceases to be covered by’ be taken to        —     declare that, by failing to adopt all the laws, regulations
           refer to all the actions (taken together) resulting in              and administrative measures necessary in order to comply
           the goods being placed unlawfully on the Com-                       with Directive 98/4/EC of the European Parliament and
           munity market?                                                      of the Council of 16 February 1998 amending Directive
                                                                               93/38/EEC coordinating the procurement procedures of
                                                                               entities operating in the water, energy, transport and
                                                                               telecommunications sectors (1), or at all events by failing
2.   If the answer to the first question is as indicated in (c),               to communicate the same to the Commission, the French
     where does the ‘leaving’ or ‘cessation of coverage’ occur:                Republic has failed to comply with its obligations under
     where the first unlawful action is performed or where a                   that directive;
     subsequent action is performed, in particular where the
     goods — in this case after breaking the seal — are
     unloaded from the vehicle?                                          —     order the French Republic to pay the costs.
 ---pagebreak--- 27.1.2001               EN                  Official Journal of the European Communities                                       C 28/23
Pleas in law and main arguments                                        Reference for a preliminary ruling by the Tribunal
                                                                       Superior de Justicia de Castilla-La Mancha, Sala de lo
                                                                       Social, by order of that court of 27 October 2000 in the
The pleas in law and main arguments are similar to those
                                                                       case of Ángel Rodrı́guez Caballero against Fondo de
advanced in Case C-407/00 (2); the transposition period expired
                                                                                Garantı́a Salarial (FOGASA)
on 16 February 1999.
                                                                                (Case C-442/00)
(1) OJ L 101 of 1.4.1998, p. 1.
(2) See p. 13 of this Official Journal.
                                                                                (2001/C 28/45)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Tribunal Superior de
                                                                       Justicia, Sala de lo Social (High Court of Justice, Social
                                                                       Chamber), Castilla-La Mancha, Spain, of 27 October 2000,
                                                                       received at the Court Registry on 30 November 2000, for a
Action brought on 29 November 2000 by the Com-                         preliminary ruling in the case of Ángel Rodrı́guez Caballero
mission of the European Communities against the United                 against Fondo de Garantı́a Salarial (Wages Guarantee Fund,
      Kingdom of Great Britain and Northern Ireland                    FOGASA) on the following questions:
                                                                       (a)   Should a concept of the kind at issue in the present
                           (Case C-441/00)                                   proceedings, namely remuneration which is payable by
                                                                             the employer to the employee as a result of the dismissal
                            (2001/C 28/44)                                   being unfair, be regarded as falling within those
                                                                             ‘employees’ claims arising from contracts of employment
                                                                             or employment relationships’ referred to in Article 1(1)
An action against the United Kingdom of Great Britain and                    of Council Directive 80/987/EEC (1) of 20 October 1980
Northern Ireland was brought before the Court of Justice of                  on the approximation of the laws of the Member States
the European Communities on 29 November 2000 by the                          relating to the protection of employees in the event of
Commission of the European Communities, represented by                       the insolvency of their employer?
Marie Wolfcarius, Legal Adviser, acting as agent, with an
address for service in Luxembourg at the office of Carlos              (b) In the affirmative, is there an obligation under Article
Gómez de la Cruz, Centre Wagner.                                            1(1) of Directive 80/987 to determine employees’ claims
                                                                             by way of either a judicial decision or an administrative
The Applicant claims that the Court should:                                  decision, and should such claims include all those
                                                                             employee claims upheld in the course of any other
—     declare that by failing to adopt the laws, regulations                 procedure recognised at law and judicially reviewable,
      or administrative provisions necessary to comply with                  such as conciliation, a compulsory procedure conducted
      Council Directive 96/48/EC (1) of 23 July 1996 on the                  before a court, which must encourage the parties to
      interoperability of the trans-European high-speed rail                 negotiate before commencing any legal proceedings and
      system, the United Kingdom has failed to fulfil its                    approve the terms of any agreement, and may prevent an
      obligations under that Directive.                                      agreement being concluded if it considers that the terms
                                                                             of the agreement would seriously prejudice one of the
                                                                             parties or amount to a circumvention of the law or an
—     order the United Kingdom to pay the costs.
                                                                             abuse of process?
                                                                       (c)   In the event that post-dismissal remuneration agreed
Pleas in law and main arguments                                              upon in a court-supervised conciliation and approved by
                                                                             the court does fall within the scope of ‘employees’ claims’,
Article 249 EC (ex Article 189 of the EC Treaty), under which                may the national court responsible for giving judgment
a directive shall be binding as to the result to be achieved,                in the proceedings refrain from applying a provision of
upon each Member State, carries by implication an obligation                 national law which excludes the employee’s claim for
on the Member States to observe the period for compliance                    such remuneration from the scope of matters for which
laid down in the directive. That period expired on 8 April 1999              the national state guarantee institution, the Fondo de
without the United Kingdom having enacted the provisions                     Garantia Salarial, is responsible and apply Article 1(1) of
necessary to comply with the directive referred to in the                    the directive directly on the ground that it considers the
conclusions of the Commission.                                               provision to be clear, precise and unconditional?
(1) OJ L 235, 17.9.1996, p. 6.                                         (1) OJ L 283, 28.10.1980, p. 23.


title: Case T-263/07: Judgment of the Court of First Instance of 23 September 2009 — Estonia v Commission (Environment — Directive 2003/87/EC — Emissions trading system for greenhouse gases — National plan allocating emissions allowances for Estonia for the period from 2008 to 2012 — Respective powers of the Member States and the Commission — Equal treatment — Article 9(1) and (3) and Article 11(2) of Directive 2003/87)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/59

         Judgment of the Court of First Instance of 23 September 2009 — Estonia v Commission
   (Case T-263/07) (1)

   (Environment - Directive 2003/87/EC - Emissions trading system for greenhouse gases - National plan allocating emissions allowances for Estonia for the period from 2008 to 2012 - Respective powers of the Member States and the Commission - Equal treatment - Article 9(1) and (3) and Article 11(2) of Directive 2003/87)
   2009/C 267/102
   Language of the case: Estonian

      Parties

      Applicant: Republic of Estonia (represented by: L. Uibo, acting as Agent)

      Defendant: Commission of the European Communities (represented by: U. Wölker and T. Tamme, lawyers)

      Interveners in support of the applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, acting as Agent); and the Slovak Republic (represented initially by J. Čorba, and subsequently by B. Ricziová, acting as Agents)

      Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by: Z. Bryanston-Cross, subsequently by L. Seeboruth, and finally by S. Ossowski, acting as Agents, assisted by J. Maurici, barrister)

      Re:

   Application for the annulment of the Commission Decision of 4 May 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Estonia for the period from 2008 to 2012, in accordance with European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

      Operative part of the judgment

   The Court:

               1.

               Annuls the Commission Decision of 4 May 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Estonia for the period from 2008 to 2012, pursuant to European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC.

               2.

               Orders the Commission to bear its own costs and to pay those incurred by the Republic of Estonia.

               3.

               Orders the Republic of Lithuania, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

      (1)  OJ C 223, 22.9.2007 (Correcting entry OJ C 247, 20.10.2007).


title: Action brought on 24 June 1997 by Crown Europe GmbH against the Commission of the European Communities (Case T-187/97)

text:
C 318/18             I EN                   Official Journal of the European Communities                                 18 . 10 . 97
Action brought on 24 June 1997 by Crown Europe                         Action brought on 24 June 1997 by Profex Electronic
GmbH against            the    Commission   of the European            Verwaltungsgesellschaft mbH against the Commission of
                             Communities                                                the European Communities
                           (Case T-l 87/97)                                                   ( Case T-190/97)
                            ( 97/C 318/35 )                                                     ( 97/C 318/36 )
                (Language of the case: German)                                        (Language of the case: German)
An action against the Commission of the European
Communities was brought before the Court of First                      An action against the Commission of the European
Instance of the European Communities on 24 June 1997                   Communities was brought before the Court of First
by Crown Europe GmbH, whose registered office is at                    Instance of the European Communities on 24 June 1997
Gelsenkirchen,          represented      by   Dietrich      Ehle,      by Profex Electronic Verwaltungsgesellschaft mbH, whose
Rechtsanwalt, Cologne, with an address for service in                  registered office is at Tiefenbach, represented by Gregor
Luxembourg at the Chambers of Marc Lucius, 6 rue                       Sobotta, Rechtsanwalt, Muhlheim an der Ruhr.
Michel Welter, Luxembourg.
                                                                       The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                       — annul       Commission       Decision  REM     20/96      of
—i annul       Commission         Decision  REM       19/96    of
                                                                            19 February 1997, holding the remission of import
     19 February 1997, refusing the remission of a payment                 duties in a certain case on the application of Germany
     of DM 238 352,97,                                                     to be unjustified,
— order the Commission to pay the costs .
                                                                       — order the Commission to take a decision allowing the
                                                                           application for remission of the duties,
Pleas, in law and main arguments adduced in support:
                                                                       — order the Commission to pay the costs,
For the factual background and the legal arguments of the
applicant, which imported television sets from Turkey
between January 1991 and January 1994, and which                       — declare the judgment provisionally enforceable, if
challenges a Commission Decision of 19 February 1997                       necessary on provision of security.
addressed to Germany to the effect that the remission of
import duties in the applicant's case would be unjustified,
reference is made to the explanatory statements in Case                Pleas in law and main arguments adduced in support:
T-l 86/97 0 ).
In addition to the legal arguments in that case, the                   For the factual background and the legal arguments of
applicant alleges an infringement in this case of the                  the applicant, which imported colour television sets
Commission's decision-making procedure, in that, first,                from Turkey between February and September 1992, and
the Commission did not have the applicant's full                       challenges a Commission Decision addressed to Germany
                                                                       to the effect that the remission of import duties in its case
application before it at the time it made its decision, and,
secondly, it is not clear whether the Commission also took             would be unjustified, reference is made to the explanatory
                                                                       statements in Cases T-186/97 and T-187/97 (');
its decision on the basis of Article 5 ( 2 ) of Regulation
( EEC ) No 1697/79 .
                                                                       In addition to the legal arguments in those cases, the
The applicant further argues that the Commission                       applicant maintains that it is not apparent on what
nevertheless supported its Decision both on the basis of               legal basis the Commission's officials carried out their
that provision and on the basis of Article 13 of Regulation            investigations in Turkey. If any facts were obtained at all
( EEC) No 1430/79 . With regard to Article 5 (2 ) of                   by means of those investigations, they were obtained in an
Regulation ( EEC ) No 1697/79, the Commission wrongly                  unlawful manner and, in accordance with the general
determined that the Turkish exporter of the colour                     principle of the rule of law, should not therefore have
television sets had misled or even deceived the Turkish                been used.
customs authorities, and that a provision for the payment
of proportionate duty was discernibly applicable to the
parties concerned.                                                     The applicant submits, moreover, that the television sets
                                                                       were probably produced in the context of inward
                                                                       processing, where the most usual procedure would be
(*) See previous case .
                                                                       for the local customs authorities not to levy any
                                                                       compensatory charges at all . Even if the television sets
                                                                       were not produced in that context, the charges should


title: Case T-232/07: Action brought on 5 July 2007 — Spain v Commission

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/44

         Action brought on 5 July 2007 — Spain v Commission
   (Case T-232/07)
   (2007/C 199/84)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: N. Díez Abad)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the notice of Open Competition EPSO/AD/95/07 published by the European Personnel Selection Office (EPSO) in the Official Journal
                  (OJ C 103 A) on 8 May 2007;

               —

               order the Commission to publish all notices of competitions for posts in the European civil service in the Official Journal in all languages;

               —

               order the present case to be joined with Case T-156/07;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are practically identical to those relied on in Case T-156/07 Kingdom of Spain v Commission
       (1).

      (1)  OJ C 140, 23.6.2007, p. 1.


title: Case T-451/09: Judgment of the General Court of 15 December 2010 — Wind v OHIM-Sanyang Industry (Wind) (Community trade mark — Opposition proceedings — Application for Community figurative mark Wind — Earlier national figurative mark Wind — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Lack of similarity of the goods and of the services)

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/15

         Judgment of the General Court of 15 December 2010 — Wind v OHIM-Sanyang Industry (Wind)
   (Case T-451/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark Wind - Earlier national figurative mark Wind - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009 - Lack of similarity of the goods and of the services)
   2011/C 38/27
   Language of the case: English

      Parties

      Applicant: Harry Wind (Selfkant, Germany) (represented by: J. Sroka, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Sanyang Industry Co., Ltd (Hsinchu, Taïwan)

      Re:

   ACTION against the decision of the Fourth Board of Appeal of OHIM of 3 September 2009 (Case R 1470/2008-4), relating to opposition proceedings between Harry Wind and Sanyang Industry Co., Ltd

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Harry Wind to pay the costs.

      (1)  OJ C 24, 30.1.2010.