title: Case C-222/13: Judgment of the Court (Third Chamber) of 9 October 2014 (request for a preliminary ruling from the Teleklagenævnet — Denmark) — TDC A/S v Erhvervsstyrelsen (Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Article 32 — Additional mandatory services — Compensation mechanism for the cost associated with providing those services — Meaning of ‘court or tribunal’ for the purposes of Article 267 TFEU — Lack of jurisdiction of the Court)

text:
               8.12.2014

               EN

               Official Journal of the European Union

               C 439/4

         Judgment of the Court (Third Chamber) of 9 October 2014 (request for a preliminary ruling from the Teleklagenævnet — Denmark) — TDC A/S v Erhvervsstyrelsen
   (Case C-222/13) (1)

   ((Reference for a preliminary ruling - Electronic communications networks and services - Directive 2002/22/EC - Article 32 - Additional mandatory services - Compensation mechanism for the cost associated with providing those services - Meaning of ‘court or tribunal’ for the purposes of Article 267 TFEU - Lack of jurisdiction of the Court))
   (2014/C 439/05)
   Language of the case: Danish

      Referring court

   Teleklagenævnet

      Parties to the main proceedings

      Applicant: TDC A/S

      Defendant: Erhvervsstyrelsen

      Operative part of the judgment

   The Court of Justice of the European Union has no jurisdiction to answer the questions referred by the Teleklagenævnet (Denmark) in its decision of 22 April 2013.

      (1)  OJ C 207, 20.7.2013.


title: Case C-285/08: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 30 June 2008 — Société Moteurs Leroy Somer v Société Dalkia France, Société Ace Europe

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/8

         Reference for a preliminary ruling from the Cour de cassation (France) lodged on 30 June 2008 — Société Moteurs Leroy Somer v Société Dalkia France, Société Ace Europe
   (Case C-285/08)
   (2008/C 236/12)
   Language of the case: French
   Referring court
   Cour de cassation
   Parties to the main proceedings

      Appellant: Société Moteurs Leroy Somer

      Respondents: Société Dalkia France, Société Ace Europe
   Question referred
   Do Articles 9 and 13 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (1) preclude the interpretation of domestic law or settled domestic case-law such that it enables the victim to seek compensation for damage to an item of property intended for professional use and employed for that use, where that victim simply proves damage, the defect in the product and the causal link between that defect and the damage?

      (1)  OJ 1985 L 210, p. 29.


title: JUDGMENT OF THE COURT (First Chamber) of 17 July 1997 in Case C-142/96 (reference for a preliminary ruling from the Bundesfinanzhof): Hauptzollamt München v. Wacker Werke GmbH & Co. KG (Outward processing relief - Total or partial relief from import duties - Determination of value of compensating products and temporary export goods - Reasonable means of determining value)

text:
c 295/8                 1 EN 1                 Official Journal of the European Communities                                      27 . 9 . 97
               JUDGMENT OF THE COURT                                                     JUDGMENT OF THE COURT
                           ( Sixth Chamber)                                                         ( First Chamber)
                            of 17 July 1997                                                         of 17 July 1997
       in Case C-52/96 : Commission of the European                       in Case C- 142/96 ( reference for a preliminary ruling from
            Communities v. Kingdom of Spain (')                           the Bundesfinanzhof): Hauptzollamt Munchen v. Wacker
                                                                                Werke GmbH 8c Co. KG (')
(Failure of a Member State to fulfil its obligations —
Article 5 of the EC Treaty and Article 11 (2) of Annex VIII               (Outward processing relief — Total or partial relief from
to the Staff Regulations of Officials of the European                     import duties — Determination of value of compensating
Communities — Failure to take the measures necessary to                   products and temporary export goods — Reasonable
enable pension entitlements of officials to be transferred to                               means of determining value)
                       the Community scheme)
                                                                                ( 97/C 295/ 13 )
                              ( 97/C 295/ 12 )
                                                                                (Language of the case: German)
                (Language of the case: Spanish)
                                                                             (Provisional translation; the definitive translation will be
  (Provisional translation; the definitive translation will be                      published in the European Court Reports)
          published in the European Court Reports)
                                                                          In Case C-142/96 : reference to the Court under Article 177
In Case C-52/96 : Commission of the European
                                                                          of the EC Treaty from the Bundesfinanzhof for a
Communities ( represented by Julian Currall and Francisco
                                                                          preliminary ruling in the proceedings pending before that
Enrique Gonzalez Diaz ) v. Kingdom of Spain ( represented                 court between Hauptzollamt Munchen and Wacker Werke
by Rosario Silva de Lapuerta, Abogado del Estado ) —
                                                                          GmbH & Co . KG on the interpretation of the second
application for a declaration that, by failing to adopt the
                                                                          subparagraph of Article 13 ( 2 ) of Council Regulation
national measures necessary to ensure that officials of the
                                                                          ( EEC ) No 2473/86 of 24 July 1986 on outward processing
institutions are able to transfer their retirement pension
                                                                          relief arrangements and the standard exchange system ( OJ
rights to the Community pension scheme, the Kingdom of
                                                                          L 212, 2 . 8 . 1986 , p. 1 ), the Court ( First Chamber),
Spain has failed to fulfil its obligations under Article 11 ( 2 )
                                                                          composed of: L. Sevon, President of the Chamber, D. A. O.
of Annex VIII to the Staff Regulations of Officials of the
                                                                          Edward ( Rapporteur) and R Jann, Judges; G. Tesauro,
European Communities and Article 5 of the EC Treaty,                      Advocate-General; R. Grass, Registrar, gave a judgment
the Court ( Sixth Chamber ), composed of: G. F. Mancini,
                                                                          on 17 July 1997, the operative part of which is as follows :
President of the Chamber, C. N. Kakouris, P. J. G.
Kapteyn, G. Hirsch ( Rapporteur ) and R. Schintgen,
Judges; P. Leger, Advocate-General; R. Grass, Registrar,
gave a judgment on 17 July 1997, the operative part of                    The second subparagraph of Article 13 (2) of Council
which is as follows :
                                                                          Regulation (EEC) No 24 73/86 of 24 July 1986 on
                                                                          outward processing relief arrangements and the standard
                                                                          exchange system is not to be interpreted as meaning that a
1 . declares that, by not adopting the national measures                  method of determining processing costs may be considered
     necessary to ensure that officials of the institutions are           reasonable only if the resulting value of the temporary
     able to transfer their retirement pension rights to the              export goods corresponds approximately to the purchase
     Community pension scheme, the Kingdom of Spain                       price paid by the person entitled to outward processing
     has failed to fulfil its obligations under Article 11 (2)            relief or to the manufacturing costs. Reference to the
     of Annex VIII to the Staff Regulations of Officials of               transaction value of the temporary export goods is a
     the European Communities and Article 5 of the EC                     reasonable means within the meaning of that provision.
     Treaty;                                                              Moreover, in determining the processing costs, reference
                                                                          may be made to the purchase price, inclusive of uplifts, of
                                                                           the temporary export goods even if this results in a higher
                                                                          rate of duty for the unprocessed goods than for the
2. orders the Kingdom of Spain to pay the costs.                           compensating products.
(') OJ C 95 , 30 . 3 . 1996 .                                              (') OJ C 180, 22 . 6 . 1996 .


title: Reference for a preliminary ruling from the Tribunal Administratif de Clermont-Ferrand (2ème Chambre) by judgment of that court of 27 June 1995 in the case of Gérard Bresle v. Préfet de la Région Auvergne and Préfet du Puy-de-Dôme (Case C-257/95)

text:
No C 248/8               EN                   Official Journal of the European Communities                                    23 . 9 . 95
2 . If so, is a provision of national law compatible with the                 — Commission Directive 93/48/EEC of 23 June 1993
      Community legislation referred to above which, where                        setting out the schedule indicating the conditions to
      there is a reduction in the heads of livestock raised                       be met by fruit plant propagating material and fruit
      during the intermediate period between the end of the                       plants intended for fruit production, pursuant to
      reference period and the beginning of the period of the                     Council Directive 92/34/EEC ( 4 ),
      undertaking, not only excludes those animals from the
      aid but also provides that they must be excluded from                   — Commission Directive 93/49/EEC of 23 June 1993
      the calculation of the minimum 20 % reduction in                            setting out the schedule indicating the conditions to
      output between the reference period and the period of                       be met by ornamental plant propagating material
      the undertaking, which is a prerequisite for the grant of                   and ornamental plants pursuant to Council
      the aid ( with the result, in particular, that the aid is not               Directive 91 /682/EEC ( 5 ),
      payable even in respect of the actual reduction in
       livestock envisaged in the period of the undertaking,                  — Commission Directive 93/61 /EEC of 23 June 1993
      where that reduction is less than 20 % of the average                       setting out the schedules indicating the conditions
       number of livestock raised in the reference period )?                      to be met by vegetable propagating and planting
                                                                                material , other than seed pursuant to Council
f 1 ) OJ No L 93 , 30 . 3 . 1985 , p . 1 .                                        Directive 92/33/EEC ( 6 ),
( 2 ) OJ No L 106 , 27 . 4 . 1988 , p . 28 .
( 3 ) OJ No L 361 , 29 . 12 . 1988 , p . 13 .                                 and/or by failing to communicate them to the
                                                                              Commission, the French Republic has failed to fulfil its
                                                                              obligations under the penultimate articles of those
                                                                              Directives and under the EC Treaty;
                                                                         2 . order the French Republic to pay the costs .
Action brought on 27 July 1995 by the Commission of the
      European Communities against the French Republic                   The pleas in law and main arguments adduced in support are
                                                                         similar to those in Case C-252/95 ( 7 ); the deadlines for
                           ( Case C-256/95 )
                                                                         transposition into national law set by the Directives expired
                             ( 95/C 248/16 )                             on 1 January 1994 .
An action against the French Republic was brought before                 (>)  OJ No L 268 , 14 . 9 . 1992 , p . 35 .
the Court of Justice of the European Communities on                      (2 ) OJ No L 62 , 15 . 3 . 1993 , p. 38 .
27 July 1995 by the Commission of the European                           (3 ) OJ No L 62 , 15 . 3 . 1993 , p . 49 .
 Communities, represented by Gerard Rozet, acting as                     (4)  OJ No L 250 , 7. 10 . 1993 , p. 1 .
                                                                         (<)  OJ No L 250 , 7. 10 . 1993 , p. 9 .
Agent, with an address for service in Luxembourg at                      (*)  OJ No L 250 , 7 . 10 . 1993 , p. 19 .
the office of Mr Gomez de la Gruz, Wagner Centre,                        (7)  See p. 7 of this Official Journal .
 Kirchberg.
 The applicant claims that the Court should :
  1 . declare that, by failing to bring into force the laws,
        regulations and administrative provisions necessary to           Reference for a preliminary ruling from the Tribunal
       comply with                                                       Administratif de Clermont-Ferrand (2ème Chambre) by
                                                                         judgment of that court of 27 June 1 995 in the case of Gérard
       — Council Directive 92/45/EEC of 16 June 1992 on                  Bresle v. Préfet de la Région Auvergne and Préfet du
           public health and animal health problems relating to                                       Puy-de-Dôme
           the killing of wild game and the placing on the                                         ( Case C-257/95 )
           market of the wild-game meat ( ! ),
                                                                                ( 95/C 248/17 )
        — Council Directive 92/ 117/EEC of 17 December
            1992 concerning measures for protection against               Reference has been made to the Court of Justice of the
            specified zoonoses and specified zoonotic agents in          European Communities by a judgment of the Tribunal
            animals and products of animal origin in order to            Administratif Clermont-Ferrand              (2eme    Chambre)
            prevent outbreaks of food-borne infections and                ( Administrative Court of Clermont-Ferrand, Second
            intoxications (2 ),                                           Chamber) of 27 June 1995 , which was received at the Court
                                                                          Registry on 28 July 1995 , for a preliminary ruling in the case
        — Council Directive 92/ 118/EEC of 17 December                    of Gerard Bresle v. Prefet de la Region Auvergne ( Prefect of
            1992 laying down animal health and public health              the Auvergne Region) and Prefet du Puy-de-Dome (Prefect
            requirements governing trade in and imports into the          of Puy-de-Dome ) on the following question :
            Community of products not subject to the said
            requirements laid down in specific Community rules            Can the method of calculating the power-rating for
            referred to in Annex A ( I) to Directive 89/662/EEC           administrative purposes of vehicles under the Circular with
            and, as regards pathogens, to Directive                       retrospective statutory force of the Secretary of State for
            90/425/EEC ( 3 ),                                             Public Works, Transport and Tourism of 28 December
 ---pagebreak--- 23 . 9 . 95           EN                     Official Journal of the European Communities                                     No C 248/9
1956 be regarded as discriminatory within the meaning of                Justice, Queen's Bench Division, of 1 8 July 1 995 , which was
Article 95 of the EC Treaty in relation to vehicles for which           received at the Court Registry on 4 August 1995 , for a
type-approval was given after the Treaty entered into force             preliminary ruling in the case of the Commissioners of
and before 1 January 1978 ?                                             Customs and Excise against DFDS A/S, on the following
                                                                        questions :
                                                                        on the proper interpretation of Council Directive
                                                                        77/388/EC (') on the harmonization of the laws of the
     Action brought on 2 August 1995 by the European                    Member States relating to turnover tax ( the Sixth VAT
   Parliament against the Council of the European Union                 Directive ), and in particular Article 26 thereof, where a tour
                                                                        operator has its headquarters in Member State A but
                        ( Case C-259/95
                                                                        supplies services in the form of package tours to travellers
                           ( 95/C 248/ 18                               through the agency of a company in Member State B:
An action against the Council of the European Union was                 ( a ) in what ( if any ) circumstances is the supply of those
brought before the Court of Justice of the European                           . services by the tour operator taxable in Member
Communities on 2 August 1995 by the European                                    State B ?
Parliament, represented by Christian Pennera , Head of
Division in its Legal Service, and Peter Dyrberg, of the Legal          ( b ) in what ( if any ) circumstances can it be said that the
Service , acting as agents, with an address for service in                      tour operator 'has established [its] business' in Member
Luxembourg at the Secretariat of the European Parliament,                       State B or ' has a fixed establishment from which [it] has
Tower Building, Kirchberg.                                                      provided the services' in Member State B ?
The European Parliament claims that the Court should :                  (') Council Directive 77/388/EEC ( Sixth Council Directive ) of
                                                                              17 May 1977 on the harmonization of the laws of the Member
— annul Council Decision No 95/ 184/EC of 22 May                              States relating to turnover taxes — common system of value
     1995 (') amending Decision No 3092/94/EC                                 added tax : uniform basis of assessment ( OJ No L 145 , 13 . 6 .
     introducing a Community system of information on                         1977, p. 1 ).
     home and leisure accidents,
— order the defendant to pay the costs .
Pleas in law and main arguments adduced in support
Lack of legal basis :                                                   Action brought on 4 August 1995 by the Commission of the
                                                                        European Communities against the Federal Republic of
— the reference to Article 169 of the 1994 Act of Accession                                              Germany
     is inappropriate in this case because that provision does                                      ( Case C-262/95 )
     not permit legislative amendments to be made after the                                           ( 95/C 248/20 )
     entry into force of the Accession Treaty on 1 January
     1995 .
                                                                        An action against the Federal Republic of Germany was
— Article 169 of the Act of Accession cannot permit the                 brought before the Court of Justice of the European
     Council unilaterally to amend and modify an act jointly             Communities on 4 August 1995 by the Commission of the
     adopted by the Parliament and the Council in                       European Communities, represented by Gotz zur Hausen,
     accordance with Article 189b of the EC Treaty . To apply           Legal Adviser, with an address for service in Luxembourg at
     it in the manner in which the Council did in adopting the          the office of Mr Gomez de la Cruz, Wagner Centre C 254 ,
     contested Decision effectively undermines the                      Kirchberg.
     paramountcy of the EC Treaty and disregards the rule
     laid down in Article 9 of the Act of Accession .                   The applicant claims that the Court should :
 (') OJ No L 120, 31 . 5 . 1995 , p . 36 .                               ( 1 ) declare that, by failing to adopt within the prescribed
                                                                                time-limits all the measures necessary in order to
                                                                                comply with the following Directives, in particular
                                                                                Article 3 of each of them, the Ferderal Republic of
                                                                                Germany has failed to fulfil its obligations under the EC
 Reference for a preliminary ruling by the High Court of                         Treaty:
Justice, Queen's Bench Division, by order of that court of
 18 July 1995 , in the case of the Commissioners of Customs                      — Council Directive 82/176/EEC (*) of 22 March
                 and Excise against DFDS A/S                                         1982 on limit values and quality objectives for
                                                                                mercury discharges by the chlor-alkali electrolysis
                         ( Case C-260/95 )
                                                                                industry,
                            ( 95/C 248/ 19 )
                                                                                — Council Directive 83/513/EEC ( 2 ) of 26 September
 Reference has been made to the Court of Justice of the                              1983 on limit values and quality objectives for
 European Communities by an order of the High Court of                               cadmium discharges,


title: Judgment of the Court of 20 September 2001 in Case C-383/99 P: Procter & Gamble Company v Office, for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Admissibility — Community trade mark — Regulation (EC) No 40/94 — Absolute ground for refusal to register — Distinctive character — Marks consisting exclusively of descriptive signs or indications — "BABY-DRY")

text:
5.1.2002                 EN                      Official Journal of the European Communities                                               C 3/9
3.   Articles 44(3) and 58(1) of the above Agreement with the                                JUDGMENT OF THE COURT
     Republic of Poland, read together, and Articles 45(3) and 59(1)
     of the above Agreement with the Czech Republic, read together,
     do not in principle preclude a system of prior control which                                 of 20 September 2001
     makes the issue by the competent immigration authorities of
     leave to enter and remain subject to the condition that the
     applicant must show that he genuinely intends to take up an
     activity as a self-employed person without at the same time            in Case C-383/99 P: Procter & Gamble Company v Office,
     entering into employment or having recourse to public funds,           for Harmonisation in the Internal Market (Trade Marks
     and that he possesses, from the outset, sufficient financial                                and Designs) (OHIM) (1)
     resources for carrying out the activity in question as a self-
     employed person and has reasonable chances of success.
                                                                            (Appeal — Admissibility — Community trade mark —
     Substantive requirements such as those set out in section 4.2.3        Regulation (EC) No 40/94 — Absolute ground for refusal
     of Chapter B 12 of the Netherlands Vreemdelingencirculaire             to register — Distinctive character — Marks consisting
     (Circular on Aliens), in particular the requirement that Polish        exclusively of descriptive signs or indications — ‘BABY-
     and Czech nationals wishing to become established in the host                                         DRY’)
     Member State must from the outset have sufficient financial
     resources to carry on the activity in question in a self-employed
     capacity, are designed precisely to enable the competent auth-                                    (2002/C 3/12)
     orities of that State to carry out such checks and are appropriate
     for ensuring that such an objective is attained.
                                                                                (Language of the case: French)
4.   Article 44(4)(a)(i) of the above Agreement with the Republic
     of Poland and Article 45(4)(a)(i) of the above Agreement with
     the Czech Republic must be construed to the effect that the
     ‘economic activities as self-employed persons’ referred to in those    (Provisional translation; the definitive translation will be published
     provisions have the same meaning and scope as the ‘activities                             in the European Court Reports)
     as self-employed persons’ referred to in Article 52 of the EC
     Treaty (now, after amendment, Article 43 EC).
     The activity of prostitution pursued in a self-employed capacity
     can be regarded as a service provided for remuneration and is          In Case C-383/99P: Procter and Gamble Company established
     therefore covered by both those expressions.                           in Cincinnatti (United States) represented by T. van Innis,
                                                                            avocat, appeal against the judgment of the Court of First
5.   Article 44 of the above Agreement with the Republic of Poland          Instance of the European Communities (Second Chamber) of
     and Article 45 of the above Agreement with the Czech Republic          8 July 1999 in Case T-163/98 Procter & Gamble v OHIM
     must be construed to the effect that prostitution is an economic       (‘BABY-DRY’) [1999] ECR II-2383, seeking to have that
     activity pursued by a self-employed person as referred to in those     judgment set aside in so far as the Court of First Instance ruled
     provisions, where it is established that it is being carried on by     that the First Board of Appeal of the Office for Harmonisation
     the person providing the service:                                      in the Internal Market (Trade Marks and Designs) had not
                                                                            infringed Article 7(1)(c) of Council Regulation (EC) No 40/94
                                                                            of 20 December 1993 on the Community trade mark (OJ
     —      outside any relationship of subordination concerning the        1994 L 11, p. 1) in adopting its decision of 31 July 1998 (Case
            choice of that activity, working conditions and conditions      R 35/1998-1), the other party to the proceedings being the
            of remuneration;                                                Office for Harmonisation in the Internal Market (Trade Marks
                                                                            and Designs) (Agents: O. Montalto and E. Joly) — the Court,
                                                                            composed of: G.C. Rodrı́guez Iglesias, President, C. Gulmann,
     —      under that person’s own responsibility; and                     M. Wathelet and V. Skouris (Presidents of Chambers),
                                                                            J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen,
     —      in return for remuneration paid to that person directly         F. Macken, N. Colneric and S. von Bahr, Judges, F.G. Jacobs,
            and in full.                                                    Advocate General; D. Louterman-Hubeau for the Registrar,
                                                                            gave a judgment on 20 September 2001, in which it:
     It is for the national court to determine in each case, in the light
     of the evidence adduced before it, whether those conditions are
     satisfied.                                                             1.    Annuls the judgment of the Court of First Instance of 8 July
                                                                                1999 in Case T-163/98 Procter & Gamble v OHIM (‘BABY-
                                                                                DRY’), in so far as it found that the First Board of Appeal of
                                                                                the Office for Harmonisation in the Internal Market (Trade
(1) OJ C 265 of 18.9.1999.                                                        Marks and Designs) did not infringe Article 7(1)(c) of Council
                                                                                Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                                Community trade mark in adopting its decision of 31 July
                                                                                1998 (Case R 35/1998-1);
 ---pagebreak--- C 3/10                 EN                      Official Journal of the European Communities                                            5.1.2002
2.    Annuls the decision of the First Board of Appeal of the Office      the European Economic Area of 2 May 1992 (OJ 1994 L 1,
      for Harmonisation in the Internal market (Trade Marks and           p. 3) — the Court, composed of: G.C. Rodrı́guez Iglesias,
      Designs) of 31 July 1998 (Case R 35/1998-1) in so far as it         President, P. Jann, N. Colneric and S. von Bahr (Presidents of
      refused the application for registration of ‘BABY-DRY’ as a         Chambers), C. Gulmann (Rapporteur), D.A.O. Edward, A. La
      trade mark on the basis of Article 7(1)(c) of Regulation            Pergola, J.-P. Puissochet, L. Sevón, V. Skouris and C.W.A. Tim-
      No 40/94;                                                           mermans, Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
                                                                          Administrator, for the Registrar, has given a judgment on
                                                                          20 November 2001, in which it has ruled:
3.    Orders the Office for Harmonisation in the Internal Market
      (Trade Marks and Designs) to pay the costs both at first
      instance and on appeal.
                                                                          1.   On a proper construction of Article 7(1) of First Council
                                                                               Directive 89/104/EEC of 21 December 1988 to approximate
(1) OJ C 6 of 8.1.2000.
                                                                               the laws of the Member States relating to trade marks, as
                                                                               amended by the Agreement on the European Economic Area of
                                                                               2 May 1992, the consent of a trade mark proprietor to the
                                                                               marketing within the European Economic Area of products
                                                                               bearing that mark which have previously been placed on the
                                                                               market outside the European Economic Area by that proprietor
                                                                               or with his consent may be implied, where it follows from facts
                                                                               and circumstances prior to, simultaneous with or subsequent to
                                                                               the placing of the goods on the market outside the European
                 JUDGMENT OF THE COURT
                                                                               Economic Area which, in the view of the national court,
                                                                               unequivocally demonstrate that the proprietor has renounced
                     of 20 November 2001                                       his right to oppose placing of the goods on the market within
                                                                               the European Economic Area.
in Joined Cases C-414/99 to C-416/99 [reference for a
preliminary ruling from the High Court of Justice of
England and Wales, Chancery Division (Patent Court)]:                     2.   Implied consent cannot be inferred:
Zino Davidoff SA and A & G Imports Ltd (C-414/99),
between Levi Strauss & Co., Levi Strauss (UK) Ltd and
Tesco Stores Ltd, Tesco plc (C-415/99), and between Levi                       —      from the fact that the proprietor of the trade mark has not
Strauss & Co., Levi Strauss (UK) Ltd v Costco Wholesale                               communicated to all subsequent purchasers of the goods
                             UK Ltd (1)                                               placed on the market outside the European Economic
                                                                                Area his opposition to marketing within the European
(Trade marks — Directive 89/104/EEC — Article 7(1) —                                  Economic Area;
Exhaustion of the rights conferred by a trade mark — Goods
placed on the market outside the EEA — Imported into the
EEA — Consent of the trade mark proprietor — Whether                           —      from the fact that the goods carry no warning of a
consent required to be express or implied — Law governing                             prohibition of their being placed on the market within the
  the contract Presumption of consent — Non-applicability)                            European Economic Area;
                           (2002/C 3/13)
                                                                               —      from the fact that the trade mark proprietor has transferred
                                                                                the ownership of the products bearing the trade mark
                   (Language of the case: English)                                    without imposing any contractual reservations and that,
                                                                                according to the law governing the contract, the property
                                                                                right transferred includes, in the absence of such reser-
                                                                                vations, an unlimited right of resale or, at the very least,
In Joined Cases C-414/99 to C-416/99 (reference to the Court                          a right to market the goods subsequently within the
under Article 234 EC) from the High Court of Justice of                               European Economic Area.
England and Wales, Chancery Division (Patent Court) (United
Kingdom of Great Britain and Northern Ireland) for a prelimi-
nary ruling in the proceedings pending before that court                  3.   With regard to exhaustion of the trade mark proprietor’s
between Zino Davidoff SA and A & G Imports Ltd (C-414/99),
                                                                               exclusive right, it is not relevant:
between Levi Strauss & Co., Levi Strauss (UK) Ltd and Tesco
Stores Ltd, Tesco plc (C-415/99), and between Levi Strauss &
Co., Levi Strauss (UK) Ltd v Costco Wholesale UK Ltd, formerly
Costco UK Ltd (C-410/99) — on the interpretation of Article 7                  —      that the importer of goods bearing the trade mark is not
of First Council Directive 89/104/EEC of 21 December 1988                             aware that the proprietor objects to their being placed on
to approximate the laws of the Member States relating to trade                        the market in the European Economic Area or sold there
marks (OJ 1989 L 40, p. 1), as amended by the Agreement on                            by traders other than authorised retailers, or


               9.3.2017

               EN

               Official Journal of the European Union

               C 73/21

         Action brought on 7 December 2016 by DB Schenker against the EFTA Surveillance Authority
   (Case E-7/12 COSTS)
   (2017/C 73/11)
   An action against the EFTA Surveillance Authority was brought before the EFTA Court on 7 December 2016 by Schenker North AB, Schenker Privpak AB and Schenker Privpak AS (collectively ‘DB Schenker’), represented by Jon Midthjell of Advokatfirmaet Midthjell AS, Grev Wedels plass 5, NO-0151 Oslo, Norway.
   The applicant asks that the Court make the following order:

               1.

               The total amount of the remaining costs to be paid by the EFTA Surveillance Authority to Schenker North AB, Schenker Privpak AB, and Schenker Privpak AS, is fixed at EUR 125 657.

               2.

               That amount shall bear interest for late payment from the date on which the present order is served on the parties until the date of actual payment. The rate of interest to be applied shall be calculated on the basis of the rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points.

         Legal and factual background and pleas in law adduced in support:

               —

               The applicants, collectively referred to as ‘DB Schenker’, run business operations by land, sea and rail in Norway, Sweden and Denmark. DB Schenker was the applicant in Case E-7/12 against the EFTA Surveillance Authority before the EFTA Court.

               —

               Article 70(1) of the Rules of Procedure of the EFTA Court states.

                  ‘If there is a dispute concerning the costs to be recovered, the Court shall, on application by the party concerned and after hearing the opposite party, make an order.’

               —

               In the judgment of Case E-7/12, the EFTA Court ordered the EFTA Surveillance Authority to pay the costs concerning the failure to act, and half of those of the applicants concerning the action for non-contractual liability.


title: Case C-104/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 29 February 2012 — Finanzamt Köln-Nord v Wolfram Becker

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/5

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 29 February 2012 — Finanzamt Köln-Nord v Wolfram Becker
   (Case C-104/12)
   2012/C 138/08
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Appellant on a point of law: Finanzamt Köln-Nord

      Respondent to the appeal on a point of law: Wolfram Becker

      Questions referred

               1.

               Is the direct and immediate link, which is regarded by the case-law of the Court of Justice of the European Union as being determinant for interpreting the term ‘for the purposes of his taxable transactions’ within the meaning of Article 17(2)(a) of Directive 77/388/EEC, (1) to be determined:

                           —

                           according to the objective content of the supply acquired by the taxable person (in the present case: the activity of a criminal defence lawyer with a view to preventing the conviction of a natural person); or

                           —

                           according to the fact which gave rise to the supply acquired (in the present case: the economic activity of the taxable person during which a criminal act was purportedly committed by a natural person)?

               2.

               If the fact which gave rise to the supply is determinant: Is a taxable person who commissions a supply together with an employee entitled to deduct input tax in full or only in part under Article 17(2)(a) of Directive 77/388/EEC and, where a supply is acquired by several recipients, what requirements exist as to the issuing of the invoice pursuant to the fifth indent of Article 22(3)(b) of Directive 77/388/EEC?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case C-575/12: Request for a preliminary ruling from the Administratīvā apgabaltiesa (Latvia) lodged on 7 December 2012 — AS ‘Air Baltic Corporation’ v Valsts robežsardze

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/16

         Request for a preliminary ruling from the Administratīvā apgabaltiesa (Latvia) lodged on 7 December 2012 — AS ‘Air Baltic Corporation’ v Valsts robežsardze
   (Case C-575/12)
   2013/C 38/24
   Language of the case: Latvian

      Referring court

   Administratīvā apgabaltiesa

      Parties to the main proceedings

      Appellant: AS ‘Air Baltic Corporation’

      Respondent: Valsts robežsardze

      Questions referred

               1.

               Must Article 5 of Regulation (EC) No 562/2006 (1) of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) be interpreted as meaning that existence of a valid visa contained in a valid travel document is a mandatory pre-condition for the entry of a third-country national?

               2.

               Under Regulation (EC) No 810/2009 (2) of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), does cancellation of a travel document to which a visa sticker is affixed mean that the visa issued is also invalidated?

               3.

               Are national rules which require, as a mandatory pre-condition for the entry of third-country nationals, the existence of a valid visa contained in a valid travel document compatible with Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code)?

      (1)  OJ 2006 L 105, p. 1.

      (2)  OJ 2009 L 243, p. 1.


title: Case C-246/08: Action brought on 3 June 2008 — Commission of the European Communities v Republic of Finland

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/29

         Action brought on 3 June 2008 — Commission of the European Communities v Republic of Finland
   (Case C-246/08)
   (2008/C 209/43)
   Language of the case: Finnish
   Parties

      Applicant: Commission of the European Communities (represented by P. Aalto and D. Triantafyllou, acting as Agents)

      Defendant: Republic of Finland
   Form of order sought

               —

               declare that, by failing to charge value added tax on legal advice services provided in return for part payment in accordance with the legal aid provisions by State legal aid offices (by public legal advisers acting as their employees), while the corresponding services provided by private advisers are subject to value added tax, the Republic of Finland has failed to fulfil its obligations under Articles 2(1) and 4(1), (2) and (5) of the Sixth VAT Directive 77/388/EEC (1);

               —

               order the Republic of Finland to pay the costs.

         Pleas in law and main arguments
   In Finland a recipient of legal aid may choose a public legal adviser or a private adviser to represent him in legal proceedings. In that situation the services provided by a public legal adviser in return for part payment are not subject to value added tax, whereas value added tax is charged on the services provided by a private adviser in return for part payment. The Commission considers that this is a case of different value added tax treatment of the same services, with effects on the Community's own resources.
   The Commission argues that the services provided by State legal aid offices in legal proceedings do not fall within the scope of the first subparagraph of Article 4(5) of the Sixth VAT Directive. Those services are clearly free from value added tax where they are provided without charge. If, on the other hand, the recipient of legal aid pays a fee for the service, services provided by a State legal aid office cannot be regarded as free from value added tax.
   The second subparagraph of Article 4(5) of the VAT Directive provides that bodies governed by public law are to be regarded as taxable persons in respect of the activities in which they engage as public authorities if treating them differently would lead to significant distortions of competition. Even if the State legal aid offices were regarded as acting as public authorities in this respect, the Commission considers that excluding them from liability to tax in the above cases would lead to significant distortions of competition. For that reason they should be regarded as taxable persons with respect to value added tax.

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case T-158/00: Action brought on 13 June 2000 by the Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD) against the Commission of the European Communities

text:
C 247/32                EN                      Official Journal of the European Communities                                      26.8.2000
The applicant claims that the Court should:                                European Communities on 13 June 2000 by the Arbeitsge-
                                                                           meinschaft der öffentlich-rechtlichen Rundfunkanstalten der
—     declare that the European Parliament has adopted a                   Bundesrepublik Deutschland (ARD), of Cologne (Federal
      decision contrary to Articles 4 and 5, the second para-              Republic of Germany), consisting of Bayerische Rundfunk,
      graph of Article 7, Articles 9 and 45 and Annex I to the             Hessischer Rundfunk, Mitteldeutscher Rundfunk, Nord-
      Staff Regulations of Officials;                                      deutscher Rundfunk, Ostdeutscher Rundfunk Brandenburg,
                                                                           Radio Bremen, Saarländischer Rundfunk, Sender Freies Berlin,
—     annul the decisions adopted on 26 November 1999                      Südwestrundfunk and Westdeutscher Rundfunk, represented
      by the Director-General for Personnel concerning the                 by Peter Mailänder and Andreas Bartosch, of Haver & Mailänd-
      promotion of certain officials to grades B2 and B1,                  er, Stuttgart (Federal Republic of Germany).
      inasmuch as those decisions were made without the
      announcement or publication of notices of vacancy
                                                                           The applicants claim that the Court should:
      relating to posts corresponding to the standard post of
      principal administrative assistant, and on the basis of an           —     annul the Commission’s decision of 21 March 2000 in
      incorrect examination of the comparative merits of the                     case COMP/JV.37, by which, pursuant to Article 6(1)(b)
      officials concerned;                                                       of Council Regulation (EEC) No 4064/89 on the control
—     annul the decision of 10 March 2000 by which the                           of concentrations between undertakings (‘the Merger
                                                                                Regulation’), it declared the proposed concentration of
      Secretary-General rejected the applicant’s complaint of
      29 February 2000;                                                          BSkyB and KirchPayTV to be compatible with the com-
                                                                                mon market;
—     order the defendant to pay the costs.
                                                                           —     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                           Pleas in law and principal arguments
The applicant was not included amongst the officials promoted
by decision of the Director-General for Personnel dated                    By the contested decision, the Commission decided to raise no
26 November 1999, allegedly on account of the method used                  objections to a proposed concentration in the course of which
in applying the promotion system recently introduced in the                the British Sky Broadcasting Group plc (‘BSkyB’) intends to
Parliament.                                                                acquire 24 % of the shares in KirchPayTV GmbH & Co. KGaA
                                                                           (‘KirchPayTV’).
She seeks annulment of the decision concerning the number
of points awarded to her for promotion purposes, together                  The applicant contests that decision and advances, in essence,
with annulment of the decisions promoting other officials,                 the following pleas:
which were adopted on the basis of an incorrect examination
of their comparative merits.                                               —     The Commission correctly observes in the contested
                                                                                decision that KirchPayTV would not be able, without the
The applicant asserts that the promotion system in force in                      additional financial resources of BSkyB, to make the
the Parliament is unlawful, and pleads in that connection:                       investment needed in terms of content and technical
                                                                                infrastructure in order to maintain its present market
—     the illegality, in the light of Articles 4 and 5 and Annex I               position. It commits an error of law, however, in
      to the Staff Regulations, of the separation of grades from                 stating that there exists no potential competition between
      functions;                                                                 KirchPayTV and BSkyB in the German market by refer-
                                                                                ence to the current competitive strength of KirchPayTV
—     infringement of Article 45 of the Staff Regulations.                       which might impede the entry into the market of
                                                                                another operator. In so stating, the Commission has
                                                                                misunderstood the criterion to be applied in accordance
                                                                                with Article 2(3) of the Merger Regulation. It has failed to
                                                                                have sufficient regard to the possibility, postulated by the
                                                                                Commission itself, of future changes in the situation as
                                                                                regards dominance of the market.
Action brought on 13 June 2000 by the Arbeitsgemein-
schaft der öffentlich-rechtlichen Rundfunkanstalten der                    —     Although the Commission may accept commitments
Bundesrepublik Deutschland (ARD) against the Com-                                inter alia in the context of the initial examination of
            mission of the European Communities                                  concentrations under Article 6(2) of the Merger Regu-
                                                                                lation, such commitments must be restricted to clearly
                          (Case T-158/00)                                        defined and easily resolvable competition problems.
                                                                                In the present case, the Commission disregarded that
                          (2000/C 247/57)                                        requirement.
                                                                           —     The commitments accepted by the Commission do not
                   (Language of the case: German)                                meet the requirements relating to the application of
                                                                                European merger controls in the light of the structure of
An action against the Commission of the European Communi-                        the market. The commitments result in an on-going
ties was brought before the Court of First Instance of the                       monitoring of conduct, as prescribed in the context of
 ---pagebreak--- 26.8.2000               EN                      Official Journal of the European Communities                                      C 247/33
      the control of abuses of cartel law pursuant to Article 82           The applicant claims that the Court should:
      EC. However, such monitoring of conduct has no
      additional value whatever, in terms of the promotion of              —     annul the implicit decision of the Commission rejecting
      competition, as a counter- balance to the tolerated                        the complaint lodged by the applicant under Article 90(2)
      dominance of the market. More wide-reaching commit-                        of the Staff Regulations against the list of officials
      ments, as demanded by the applicant in the course of the                   promoted to grade A 4, published in ‘Administrative
      procedure, have not been given by the parties to the                       Notices’ No 1080 of 13 August 1999, inasmuch as his
      proposed concentration.                                                    name did not appear on that list;
—     In addition, the Commission acted incorrectly from a                 —     consequently, rule that the 1999 procedure for pro-
      procedural point of view. Although significant reser-                      motion to grade A 4 is annulled as regards the applicant;
      vations were expressed in the decision as regards the
      compatibility of the proposed concentration with the                 —     order the defendant to pay compensation of 5 000 euros
      common market, the Commission granted its approval,                        for non-material damage;
      on the basis of wide-ranging and partly unverifiable
      commitments offered by the parties seeking that                      —     order the defendant to pay all the costs.
      approval, as early on as the initial examination stage. Had
      it acted correctly, however, proceedings should have been
      initiated in accordance with Article 6(1)(c) of the Merger           Pleas in law and main arguments
      Regulation.
                                                                           In support of his action, the applicant pleads:
—     Lastly, the Commission unlawfully failed to comply
      with the procedural rule laid down in Article 18(1) of               —     the total absence of any statement of reasons for the
      Commission Regulation (EC) No 447/98 (1), in that, even                    contested decision and infringement of Article 25(2) of
      after the expiry of the three-week time-limit prescribed in                the Staff Regulations of officials;
      that provision, it constantly had regard to further, altered
      commitments offered by the parties to the proposed
                                                                           —     infringement of Article 45(1) of the Staff Regulations and
      concentration. This infringed the procedural rights of the
                                                                                manifest error of assessment.
      applicant in particular, since the applicant was required
      to adopt a position within time-limits which became
      ever shorter, and ultimately had scarcely any further
      opportunity to express its views.
(1) Commission Regulation (EC) No 447/98 of 1 March 1998 on the
    notifications, time limits and hearings provided for in Council
    Regulation (EEC) No 4064/89 on the control of concentrations           Action brought on 16 June 2000 by Rosemarie Carotti
    between undertakings (OJ 1998 L 61, p. 1).                             against the Court of Auditors of the European Communi-
                                                                                ties
                                                                                (Case T-163/00)
                                                                                (2000/C 247/59)
                                                                                (Language of the case: French)
Action brought on 14 June 2000 by Vassilios Tsarnavas
  against the Commission of the European Communities
                                                                           An action against the Court of Auditors of the European
                                                                           Communities was brought before the Court of First Instance
                          (Case T-161/00)                                  of the European Communities on 16 June 2000 by Rosemarie
                                                                           Carotti, residing in Luxembourg, represented by Gaston Vogel
                                                                           and Ferdinand Burg, of the Luxembourg Bar.
                          (2000/C 247/58)
                                                                           The applicant claims that the Court should:
                     (Language of the case: French)
                                                                           —     annul the decision of 15 May 2000;
An action against the Commission of the European Communi-                  —     order the Court of Auditors to pay the costs;
ties was brought before the Court of First Instance of the
European Communities on 14 June 2000 by Vassilios Tsarna-                  —     order the Court of Auditors to pay to Ms Carotti the sum
vas, residing in Brussels, represented by Nicolas Lhoëst, of the                 of LFR 50 000, constituting the expenses which she has
Brussels Bar.                                                                    had to incur in order to succeed with her case.


title: Case C-502/10: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 20 October 2010 — Staatssecretaris van Justitie v M. Singh

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/35

         Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 20 October 2010 — Staatssecretaris van Justitie v M. Singh
   (Case C-502/10)
   ()
   2010/C 346/61
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Appellant: Staatssecretaris van Justitie

      Other party: M. Singh

      Question referred

   Is the concept of formally limited residence permit within the meaning of Article 3(2)(e) of Council Directive 2003/109/EC (1) of 25 November 2003 concerning the status of third-country nationals who are long-term residents to be interpreted as including a fixed-period residence permit which, under Netherlands law, does not offer any prospect of a residence permit of indefinite duration, even if, under Netherlands law, the period of validity of the fixed-period residence permit can in principle be extended indefinitely and also if a particular group of people, such as spiritual leaders and religious teachers, are thereby excluded from the application of the Directive?

      (1)  OJ 2004 L 16, p. 44.


title: Case C-139/15 P: Judgment of the Court (Tenth Chamber) of 21 September 2016 — European Commission v Kingdom of Spain (Appeal — Cohesion Fund — Reduction of financial assistance — Procedure of adoption of the decision by the European Commission — Existence of a time limit — Non-compliance with the time limit laid down — Consequences)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/16

         Judgment of the Court (Tenth Chamber) of 21 September 2016 — European Commission v Kingdom of Spain
   (Case C-139/15 P) (1)

   ((Appeal - Cohesion Fund - Reduction of financial assistance - Procedure of adoption of the decision by the European Commission - Existence of a time limit - Non-compliance with the time limit laid down - Consequences))
   (2016/C 419/20)
   Language of the case: Spanish

      Parties

      Appellant: European Commission (represented by: S. Pardo Quintillán and D. Recchia, acting as Agents)

      Other party to the proceedings: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

      Intervener in support of the defendant: Kingdom of the Netherlands (represented by: B. Koopman and M. Bulterman, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Commission to pay the costs;

               3.

               Orders the Kingdom of the Netherlands to bear its own costs.

      (1)  OJ C 155, 11.5.2015.


title: Case C-154/08: Action brought on 15 April 2008 — Commission of the European Communities v Kingdom of Spain

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/17

         Action brought on 15 April 2008 — Commission of the European Communities v Kingdom of Spain
   (Case C-154/08)
   (2008/C 171/29)
   Language of the case: Spanish
   Parties

      Applicant(s): Commission of the European Communities (represented by: M. Afonso and F. Jimeno Fernández, acting as Agent(s))

      Defendant(s): Kingdom of Spain
   Form of order sought

               —

               declare that by considering that the services supplied to an Autonomous Community by land registrars acting as settlement agents in charge of a settlement office of a mortgage district are not subject to VAT, the Kingdom of Spain has failed to fulfil its obligations under Article 2 and Article 4(1) and (2) of the Sixth VAT Directive (1).

               —

               order Kingdom of Spain to pay the costs.

         Pleas in law and main arguments

               1.

               Land registrars are professionals appointed by the Spanish State and charged by it with the management of the land registers. They work on their own account, are free to organise their work, select their own staff and collect the payments which constitute their income themselves. Several Autonomous Communities have entrusted various tasks to them in relation to the settlement of certain taxes. For such services the land registrars receive a certain percentage of the taxes collected.

               2.

               The Spanish administration has traditionally taken the view that, for the purposes of VAT, when they carry out such tasks for the Autonomous Communities, the land registrars must be considered to be contractors or professionals supplying services subject to VAT. The arguments relied on in that regard by the Spanish administration were essentially based on the judgments of the Court of Justice in Case C-235/85 Commission v Netherlands
                   (2) and Case C-202/90 Ayuntamiento de Sevilla
                   (3).

               3.

               In its judgment of 12 July 2003, the Tribunal Supremo (Supreme Court) of Spain held that land registrars, as regards the specific activities entrusted to them by the Autonomous Communities, consisting in the settlement and collection of certain taxes, are simply public officials and form part of the public administration. Since that judgment, delivered in an appeal on a point of law, the Spanish administration has taken the view that such services are not subject to VAT.

               4.

               However, the Commission considers that the services supplied to the Autonomous Communities by land registrars must be subject to VAT in accordance with the general rule contained in Article 2 of the Sixth Directive. That position is derived from the fact that registrars/settlement agents act as professionals who organise autonomously and independently the human and material resources needed to supply the service, as required by Article 4(1) of that Directive, and, that being so, do not have the characteristics of subordination and dependence which are a prerequisitite if the services in question are to be considered to have been supplied by an official to the administration to which he belongs and, therefore, not subject to VAT. A registrar/settlement agent is neither an administrative body of the Autonomous Community, nor an intrinsic element, incorporated into that body or internal to it, but an independent and distinct party with which the Autonomous Community has concluded a contract for the supply of services for consideration.

               5.

               Similarly, the Commission considers that in the present case the requirements of the case-law are fulfilled for the Kingdom of Spain to be declared liable for a failure to fulfil obligations through an interpretation of Community law which is not consistent with its spirit or purpose or with the case-law of the Court of Justice. First, the Tribunal Supremo has the status of a higher judicial body in all orders, subject to the provisions as regards constitutional guarantees. Second, the ruling has significance and implications which are, in principle, contrary to the interpretation handed down by the Court of Justice, and which entail an absolute turnaround in the case-law of the lower courts and the practice of the Spanish administration to date, given its binding character. Third, there are damaging effects in the VAT sector which may affect the Community's own resources. Consequently, the Spanish administration may not seek protection from the judgment of the Tribunal Supremo to justify its failure to fulfil its obligations under Community law.

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

      (2)  [1987] ECR 1471.

      (3)  [1991] ECR I-4247.


title: Case C-629/11 P: Judgment of the Court (Seventh Chamber) of 4 October 2012 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission (Appeal — Public contract awarded by the Commission — Rejection of the tender — Obligation to state the reasons on which the decision is based — Regulation (EC, Euratom) No 1605/2002 — Article 100(2) — Time-limit for replying to a request for information — Regulation (EC, Euratom) No 2342/2002 — Article 149(2))

text:
               24.11.2012

               EN

               Official Journal of the European Union

               C 366/16

         Judgment of the Court (Seventh Chamber) of 4 October 2012 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission
   (Case C-629/11 P) (1)

   (Appeal - Public contract awarded by the Commission - Rejection of the tender - Obligation to state the reasons on which the decision is based - Regulation (EC, Euratom) No 1605/2002 - Article 100(2) - Time-limit for replying to a request for information - Regulation (EC, Euratom) No 2342/2002 - Article 149(2))
   2012/C 366/27
   Language of the case: English

      Parties

      Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis (represented by: N. Korogiannakis, dikigoros)

      Other party to the proceedings: European Commission (represented by: D. Calciu and S. Delaude, Agents, and P. Wytinck, advocaat)

      Re:

   Appeal against the judgment of the General Court (Second Chamber) of 20 September 2011 in Case T-298/09 Evropaïki Dynamiki v Commission dismissing an application first, for annulment of the Commission decision of 12 May 2009 rejecting the tender submitted by the applicant in response to call for tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) (OJ 2008/S 158-212752) and of the decision to award the contract to another tenderer and, second, for damages — Article 93(1)(f) of the Financial Regulation — Period of validity of tenders — Non-contractual liability

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

      (1)  OJ C 49, 18.2.2012.


title: Case T-284/11: Action brought on 7 June 2011 — Metropolis Inmobiliarias y Restauraciones v OHIM — MIP Metro (METROINVEST)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/35

         Action brought on 7 June 2011 — Metropolis Inmobiliarias y Restauraciones v OHIM — MIP Metro (METROINVEST)
   (Case T-284/11)
   2011/C 232/61
   Language in which the application was lodged: English

      Parties

      Applicant: Metropolis Inmobiliarias y Restauraciones, SL (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

      Other party to the proceedings before the Board of Appeal: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany)

      Form of order sought

               —

               Modify the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 March 2011 in case R 954/2010-1, and grant the Community trade mark application for the word mark ‘METROINVEST’;

               —

               Subordinately, and only in the case the former claim would be rejected, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 March 2011 in case R 954/2010-1;

               —

               Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘METROINVEST’, for services in class 36 — Community trade mark application No 7112113

      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: German trade mark registration No 30348717, of the figurative mark ‘METRO’, in blue and yellow, for a range of goods and services in classes 1 to 45; Community trade mark application No 779116, of the figurative mark ‘METRO’, in yellow, for a range of goods and services in classes 1 to 42

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 6 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, related to the right to fair trial and the prohibition of any discrimination and to Community law general principle of equal treatment. Infringement by the Board of Appeal of Article 8(1)(b) of Council Regulation No 207/2009, because of the lack of confusion risk between both conflicting trademarks.


title: Case C-463/10 P: Appeal brought on 27 September 2010 by Deutsche Post AG against the order of the General Court (First Chamber) of 14 July 2010 in Case T-570/08 Deutsche Post AG v European Commission

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/17

         Appeal brought on 27 September 2010 by Deutsche Post AG against the order of the General Court (First Chamber) of 14 July 2010 in Case T-570/08 Deutsche Post AG v European Commission
   (Case C-463/10 P)
   ()
   2010/C 328/32
   Language of the case: German

      Parties

      Appellant: Deutsche Post AG (represented by: J. Sedemund and T. Lübbig, Rechtsanwälte)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside in its entirety the order of the General Court (First Chamber) of 14 July 2010 in Case T-570/08;

               —

               reject the plea of inadmissibility raised by the Commission before the General Court;

               —

               annul the decision of the European Commission of 30 October 2008 concerning the ‘information injunction’ pursuant to Article 10(3) of Regulation (EC) No 659/1999 in the proceedings ‘State aid C 36/2007 — Germany; State aid to Deutsche Post AG’;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   This appeal has been brought against the order of the General Court dismissing as inadmissible the appellant’s action against the Commission’s information injunction of 30 October 2008 addressed to the Federal Republic of Germany in proceedings concerning State aid to the appellant.
   The main issue in the present appeal is whether, and under what conditions, an information injunction of the Commission pursuant to Article 10(3) of Regulation (EC) No 659/1999 may be challenged. In the appellant’s view, an action against a decision requesting information to be supplied that is available only to the appellant is admissible if it casts doubt on compliance with the procedural requirements of Article 10(3) of Regulation No 659/1999 and on the necessity of the information required.
   By contrast, the General Court denied that such an action is admissible, in essence, on the basis that an information injunction has no legal consequences. It is merely an interim measure which is only preparatory to a final decision.
   The appellant puts forward five grounds of appeal.

               1.

               The General Court is said to have failed in the order under appeal to recognise that, as legally binding acts of the European Union, information injunctions are subject to review by the Courts of the Union. The Member State is under a binding obligation, under Article 10(3) of Regulation No 659/1999 in conjunction with the fourth paragraph of Article 288 TFEU, and in accordance with the principle of sincere cooperation under Article 4(3) TEU, to supply the information required. Since the Member State is obliged to implement the decision, the duty to provide information is passed directly to the appellant who (alone) is in possession of the information requested.

               2.

               Furthermore, the General Court failed to recognise that it would be incompatible with the guarantee of judicial protection under European Union law if a Member State and a directly affected undertaking were obliged to supply whatever information the Commission might request under Article 10(3) of Regulation No 659/1999, without any consideration being given as to whether the procedural requirements of Article 10(3) had been complied with and as to whether the information was in any way related to the purpose of the State aid control procedure.

               3.

               The General Court misinterpreted Article 10(3) and the third sentence of Article 13(1) of Regulation No 659/1999 in that it failed to recognise that the information decision has direct legal consequences for the legal position of the Member State and the undertaking concerned not least because the third sentence of Article 13(1) of Regulation No 659/1999 enables the Commission to take a decision concerning possible State aid on the basis of the information available if a Member State fails to comply with an information injunction. The consequent relaxation of the Commission’s burden of proof has the effect of considerably worsening the procedural position of the undertaking concerned, which is effectively forced to supply the information sought in order to protect its rights.

               4.

               The General Court also erred in law in so far as it denied that the information decision had any legal consequences, maintaining that it is merely an interim measure preparatory to the final decision. The General Court thereby failed to recognise that that does not preclude the liability of the measure to be set aside if the purported interim measure — such as the decision under Article 10(3) of Regulation No 659/1999 — itself has damaging legal consequences.

               5.

               Finally, the General Court failed to recognise that Commission infringements with respect to the adoption of the information decision cannot be adequately considered in the context of an action against the final decision, particularly as it is not possible at that stage to appeal the incompleteness of the factual basis of the case. At the same time, provisional compliance with an unlawful information injunction could, however, as in the present case, entail considerable time and expenditure for the undertaking concerned.


title: Case C-449/15: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 20 August 2015 — Regione autonoma della Sardegna v Comune di Portoscuso

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/16

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 20 August 2015 — Regione autonoma della Sardegna v Comune di Portoscuso
   (Case C-449/15)
   (2015/C 381/19)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Regione autonoma della Sardegna

      Defendant: Comune di Portoscuso

      Question referred

   Do the principles of freedom of establishment, non-discrimination and safeguarding competition, respectively laid down in Articles 49, 56 and 106 TFEU, and the precept of reasonableness implicit therein, preclude national legislation under which the validity of concessions of economically significant publicly-owned maritime, lakeside and waterway assets is to be repeatedly extended through a succession of legislative acts, the duration of that validity being statutorily increased for at least 11 years, with the effect that the same concessionaire retains the exclusive right to exploit the asset economically, even though the period of validity under the concession awarded to that concessionaire has meanwhile expired, whereby interested economic operators are deprived of any opportunity of obtaining a concession for the asset on the basis of a public tendering procedure?


title: Case T-466/10: Action brought on 27 September 2010 — Hannigan v Commission

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/47

         Action brought on 27 September 2010 — Hannigan v Commission
   (Case T-466/10)
   ()
   2010/C 328/75
   Language of the case: English

      Parties

      Applicant: Eugene Hannigan (Killybegs, Ireland) (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

      Defendant: European Commission

      Form of order sought

               —

               Annul Commission Decision notified under document C(2010) 4754 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Niamh Eoghan, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision notified under document C(2010) 4754 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Niamh Eoghan, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.
   In support of his application, the applicant submits the following pleas in law:

               Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructering the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

               Secondly, the applicant sumits that the Commission breached an esential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursunat to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements.

               Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of ‘fishing effort’ provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001.

               In addition, it is submitted that the impugned decision contains a number of manifest errors in its assessment of the applicant’s application for safety tonnage. In particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the use of replacement capacity from a number of smaller vessels for the Niamh Eoghan, meant there was no increase in the total capacity of the polyvalent segment of the Irish fleet when that vessel was registered is unfounded.

               Finally, the applicant alleges that the Commission breached its right to good administration. It is submitted that Commission’s refusal to assess the merits of his application constitutes a breach of its obligations under article 41 of the Charter of Fundamental Rights of the European Union, and in particular, of his right to have his application, under Article 4(2) of Council Decision No 97/413/EC, assessed ‘firly and within a reasonable time’.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 1 October 1997 in Case T-230/97 R: Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. v. Commission of the European Communities (Common organization of the markets - Bananas - Reduction coefficient - Suspension of operation - Interim measures - Admissibility of an application for interim measures - Serious and irreparable harm)

text:
6 . 12 . 97             EN                   Official Journal of the European Communities                                    C 370/7
                 ORDER OF THE PRESIDENT                                                 ORDER OF THE PRESIDENT
            OF THE COURT OF FIRST INSTANCE                                          OF THE COURT OF FIRST INSTANCE
                         of 2 October 1997                                                     of 1 October 1997
                                                                        in Case T-230/97 R: Comafrica SpA and Dole Fresh Fruit
in Case T-2 13/97 R: Committee of the Cotton and Allied
                                                                        Europe Ltd & Co. v. Commission of the European
Textile Industries of the European Union ( Eurocoton ) and                                          Communities
            Others v. Council of the European Union
                                                                        (Common organization of the markets — Bananas —
(Application for interim measures — Anti-dumping —                      Reduction coefficient — Suspension of operation —
Non-adoption of definitive measures — Suspension of                     Interim measures — Admissibility of an application for
                  operation — Interim measures)                               interim measures — Serious and irreparable harm)
                            ( 97/C 370/ 16 )                                                       ( 97/C 370/ 17 )
                                                                                (Language of the case: English)
                  (Language of the case: English)
                                                                        In Case T-230/97 R: Comafrica SpA, established in Genoa
                                                                        ( Italy ), Dole Fresh Fruit Europe Ltd & Co., established in
                                                                        Hamburg ( Germany ), represented by Bernard O'Connor,
In Case T-2 13/97 R : Committee of the Cotton and Allied                Solicitor, and Bonifacio Garcia Porras, of the Salamanca
Textile Industries of the European Union ( Eurocoton ), an              Bar, with an address for service in Luxembourg at the
association based in Brussels, Ettlin Gesellschaft fur                  Chambers of Arsène Kronshagen, 22 Avenue Marie
Spinnerei und Weberei AG, established at Ettlingen                      Adélaïde v. Commission of the European Communities
( Germany ), Textil Hof Weberei GmbH & Co . KG,                         ( Agents: Xavier Lewis and James Macdonald Flett),
established at Hof ( Germany ), H. Hecking Söhne GmbH                   supported by French Republic ( Agent: Marc Perrin de
& Co., established at Stadtlohn ( Germany ), Spinnweberei               Brichambaut ) — application under Articles 185 and 186
Uhingen GmbH, established at Uhingen ( Germany ), FA                    of the EC Treaty for ( i ) an order suspending the operation
Kümpers GmbH & Co ., established at Rheine ( Germany ),                 of Commission Regulation ( EC ) No 1155/97 of 25 June
Tenthorey SA, established at Éloyes ( France ), HPG-GAT                  1997 fixing the reduction coefficients for the
Tissages,        established       at    Cornimont       ( France ),    determination of the quantity of bananas to be allocated
Etablissements des Fils de Victor Perrin SARL, established              to each operator in categories A and B from the tariff
at Thiéfosse ( France ), Filatures & Tissages de Saulxures              quota for 1997 ( OJ L 168 , 26 . 6 . 1997, p. 67) in so far as
sur-Moselotte, established at Saulxures-sur-Moselotte                   that regulation affects the applicants, or, alternatively,
 (France ), Tissage Mouline Thillot, established at Le Thillot          suspending its operation erga omnes and ( ii ) an order
 ( France ), Tessival SpA, established at Azzano S. Paolo               requiring the setting of a specific reduction coefficient for
 (Italy), Filature Niggeler & Küpfer SpA, established at                the applicants, such that they are issued with the correct
Capriolo ( Italy ), Standardtela SpA, established at Milan               number of import licences for bananas in the remaining
 ( Italy ), represented by Clive Stanbrook QC, and Alan                  months of 1997, in accordance with their rights under
Dashwood, Barrister of the Inner Temple, with an address                 Community law, and ( iii ) any additional orders which the
 for service in Luxembourg at the Chambers of Arsène                     Court considers necessary for the purposes of granting
Kronshagen, 12 Boulevard de la Foire, v. Council of the                  interim relief to the applicants — the President of the
European Union ( Agents : Marta Arpio Santacruz, Antonio                 Court of First Instance made an order on 1 October 1997,
Tanca , Hans-Jürgen Rabe and Georg M. Berrisch ) —                       the operative part of which is as follows:
 application for interim measures in connection with the
 Council's decision to reject the proposal submitted to it by
the Commission [ COM ( 97 ) 160 final , of 21 April 1997]                1 . grants the French Republic leave to intervene in
 for the adoption of a regulation imposing a definitive anti                 support of the form of order sought by the
 dumping duty on imports of unbleached ( grey) cotton                         Commission;
 fabrics originating in the People 's Republic of China,
 Egypt, India, Indonesia, Pakistan and Turkey — the
 President of the Court of First Instance made an order on               2 . grants the applicants ' request for confidential
                                                                              treatment of certain information submitted to the
 2 October 1997, the operative part of which is as follows:                   Court;
                                                                         3 . orders non-confidential copies of the file documents to
  1 . dismisses the application for interim measures;                         be sent to the French Government;
                                                                         4 . dismisses the application for interim measures -,
 2.    reserves the costs .
                                                                         5.   reserves the costs .


title: Case F-150/12: Action brought on 13 December 2012 — ZZ v Parliament

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/36

         Action brought on 13 December 2012 — ZZ v Parliament
   (Case F-150/12)
   2013/C 147/70
   Language of the case: German

      Parties

      Applicant: ZZ (represented by: G. Maximini, lawyer)

      Defendant: European Parliament

      Subject-matter and description of the proceedings

   Application for annulment of the defendant’s decision refusing payment to the applicant of part of the resettlement allowance and reimbursement of certain travel expenses.

      Form of order sought

               —

               Annul the defendant’s decision of 29 March 2012 in so far as the applicant was thereby refused payment of the second half of the resettlement allowance under Article 6 of Annex VII to the Staff Regulations and full reimbursement of travel expenses under Article 7 of Annex VII;

               —

               order the defendant to pay to the applicant the second half of the resettlement allowance in the amount of a further month’s basic salary, together with full travel expenses to his place of origin, on account of the termination of the applicant’s service, in respect of the applicant, his wife and his severely disabled son who lives with the applicant;

               —

               order the defendant to pay the costs of the proceedings and all necessary expenses incurred by the applicant.


title: Case C-180/05: Judgment of the Court (Sixth Chamber) of  27 April 2006  — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 92/100/EEC — Rights related to copyright in the field of intellectual property — Public lending right — Failure to transpose within the period prescribed)

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/20

         Judgment of the Court (Sixth Chamber) of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-180/05) (1)

   (Failure of a Member State to fulfil its obligations - Directive 92/100/EEC - Rights related to copyright in the field of intellectual property - Public lending right - Failure to transpose within the period prescribed)
   (2006/C 143/35)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: W. Wils, Agent)

      Defendant: Grand Duchy of Luxembourg (represented by: M. S. Schreiner, Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Infringements of Articles 1 and 5 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 1)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to apply the provisions on public lending right provided for in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 1 and 5 of that directive;

               2.

               Orders the Grand Duchy of Luxembourg to pay the costs.

      (1)  OJ C 171 of 9.7.2005