title: Removal from the Register of Cases T-31/97 to T-36/97, T-45/97, T-78/97, T-79/97, T-82/97, T-88/97 to T-98/97, T-100/97 to T-105/97, T-114/97 to T-120/97, T-129/97, T-133/97, T-135/97 to T-138/97, T-150/97 to T-153/97, T-157/97, T-158/97, T-174/97, T-180/97, T-208/97 and T-209/97

text:
1.9.2001              EN                     Official Journal of the European Communities                                       C 245/31
The applicant claims that the Court should:                             Removal from the Register of Cases T-31/97 to T-36/97,
                                                                        T-45/97, T-78/97, T-79/97, T-82/97, T-88/97 to T-98/97,
—     annul the decision of the appointing authority of 3 August        T-100/97 to T-105/97, T-114/97 to T-120/97, T-129/97,
      2000 inasmuch as it does not acknowledge that the                 T-133/97, T-135/97 to T-138/97, T-150/97 to T-153/97,
      applicant’s administrative status is irregular and refuses        T-157/97, T-158/97, T-174/97, T-180/97, T-208/97 and
      to compensate him for material and non-material damage                                       T-209/97 (1)
      suffered by him
—     order the defendant to pay the costs.                                                      (2001/C 245/51)
                                                                                (Language of the case: French)
Pleas in law and main arguments
The applicant challenges the decision to bring to a close the           By order of 12 June 2001, the President of the Court of First
administrative inquiry concerning the duties carried out by the         Instance of the European Communities has ordered the
applicant, inasmuch as that decision rejects his request for a          removal from the Register of Cases T-31/97 to T-36/97,
finding that his administrative status is irregular and to be           T-45/97, T-78/97, T-79/97, T-82/97, T-88/97 to T-98/97,
compensated for material and non-material damage suffered               T-100/97 to T-105/97, T-114/97 to T-120/97, T-129/97,
by him. That inquiry shows that the arrangements had broken             T-133/97, T-135/97 to T-138/97, T-150/97 to T-153/97,
down both as to the allocation and the execution of tasks               T-157/97, T-158/97, T-174/97, T-180/97, T-208/97 and
entrusted to the applicant.                                             T-209/97, Francisco Fernandez Ruiz and Others v Commission
                                                                        of the European Communities.
In support of his application, the applicant alleges:
                                                                        (1) OJ C 131 of 26.4.97, C 142 of 10.5.97, C 166 of 31.5.97, C 181
—     breach of the obligation to provide reasons;                          of 14.6.97, C 199 of 28.6.97, C 212 of 12.7.97, C 228 of
                                                                            26.7.97, C 271 of 6.9.97 et C 7 of 10.1.98.
—     manifest error of assessment;
—     breach of the principle of sound administration;
—     breach of the rights of the defence.
                                                                               Removal from the Register of Case T-190/99 (1)
       Removal from the Register of Case T-258/93 (1)                                            (2001/C 245/52)
                        (2001/C 245/50)
                                                                                (Language of the case: Spanish)
                  (Language of the case: English)
                                                                        By order of 4 April 2001, the President of the Fifth Chamber
By order of 14 May 2001, the President of the Fourth Chamber            (Extended Composition) of the Court of First Instance of the
(Extended Composition) of the Court of First Instance of the            European Communities has ordered the removal from the
European Communities has ordered the removal from the                   Register of Case T-190/99, Sniace S.A. v Commission of the
Register of Case T-258/93, H&R Ecroyd Limited v Council                 European Communities.
of the European Union and Commission of the European
Communities.
                                                                        (1) OJ C 333 of 20.11.99.
(1) OJ C 165 of 2.7.92.


title: Case C-300/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 June 2012 — Finanzamt Düsseldorf-Mitte v Ibero Tours GmbH

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/17

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 June 2012 — Finanzamt Düsseldorf-Mitte v Ibero Tours GmbH
   (Case C-300/12)
   2012/C 287/31
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Finanzamt Düsseldorf-Mitte

      Defendant: Ibero Tours GmbH

      Questions referred

               1.

               According to the principles of the judgment of the Court of Justice of the European Union in Case C-317/94 Elida Gibbs [1996] ECR I-5339, does it also result in a reduction of the taxable amount within the context of a distribution chain if an intermediary (here: a travel agent) refunds to the customer (here: a travel client) in the transaction arranged by him (here: services of the tour operator provided to the travel client) part of the price for the transaction arranged?

               2.

               In the event that Question 1 is answered in the affirmative: must the principles of the judgment of the Court of Justice of the European Union in Case C-317/94 Elida Gibbs [1996] ECR I-5339 also be applied if the tour operator’s transaction which has been arranged by the intermediary falls within the special scheme under Article 26 of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (77/388/EEC (1)) but the intermediary services of the travel agent do not fall within that provision?

               3.

               In the event that Question 2 is also answered in the affirmative: in the event of the exemption of the services arranged by the intermediary, is a Member State which has correctly transposed Article 11(C)(1) of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (77/388/EEC) authorised to refuse a reduction of the taxable amount only if in exercising the authority included in that provision it has provided for additional conditions on the refusal of the reduction?

      (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 L 145, 13.6.1977, p. 1).


title: Case T-576/13: Action brought on 30 October 2013 — Verus v OHIM — Joie International (MIRUS)

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/25

         Action brought on 30 October 2013 — Verus v OHIM — Joie International (MIRUS)
   (Case T-576/13)
   2014/C 24/45
   Language in which the application was lodged: German

      Parties

      Applicant: Verus Eood (Sofia, Bulgaria) (represented by: C. Röhl, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Joie International Co. Ltd (Hong Kong, China)

      Form of order sought

   The applicant claims that the General Court should:

               —

               vary the decision of the Fifth Board of Appeal of 23 August 2013 in Case R 715/2012-5 so that the opposition is entirely upheld and the application for Community trade mark 9599416 is rejected;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Joie International Co. Ltd

      Community trade mark concerned: word mark ‘MIRUS’ for goods in Class 12 — application for Community trade mark No 9 599 416

      Proprietor of the mark or sign cited in the opposition proceedings: the applicant

      Mark or sign cited in opposition: German word mark ‘MIRUS’ for goods in Classes 12, 25 and 28

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: annulment of the contested decision and rejection of the opposition

      Pleas in law: infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009.


title: Judgment of the Court of 22 October 2002 in Case C-241/01 (Reference for a preliminary ruling from the Conseil d'État): National Farmers' Union v Secrétariat général du gouvernement (Agriculture — Combating bovine spongiform encephalopathy — Decisions 98/692/EC and 1999/514/EC ending the ban on beef and veal from the United Kingdom — Whether a Member State to which those decisions are addressed may challenge the legality thereof after the time-limit for bringing proceedings has expired or invoke Article 30 EC to justify its refusal to end the ban)

text:
C 305/6                   EN                      Official Journal of the European Communities                                           7.12.2002
—     it is for the operator to prove that the conditions necessary for a    under the date-based export scheme may commence by virtue
      case of force majeure to exist have been satisfied and for the         of Article 6(5) of Council Decision 98/256/EC (OJ 1999 L 195,
      national court to verify the facts alleged and to determine            p. 42) and on the interpretation of Community law, in
      whether, having regard to the circumstances, the operators took        particular Article 30 EC, the Court, composed of: G.C. Rodrí-
      every care that could have been expected of them to observe the        guez Iglesias, President, J.-P. Puissochet, M. Wathelet and
      time-limits for making the declaration provided for by the             R. Schintgen (Presidents of Chambers), C. Gulmann,
      Community legislation;                                                 D.A.O. Edward, P. Jann, V. Skouris, F. Macken, N. Colneric,
                                                                             S. von Bahr, J.N. Cunha Rodrigues and A. Rosas (Rapporteur),
—     the sudden death of the sole director of a family holding in the       Judges; J. Mischo, Advocate General; L. Hewlett, Principal
      form of community of property (‘comunidad de bienes’), who             Administrator, for the Registrar, has given a judgment on
      was connected to the members of that community by close                22 October 2002, in which it has ruled:
      family ties, may, in principle, be regarded as a case of force
      majeure.
( 1) OJ C 227 of 11.8.2001.
                                                                             1.    A Member State which is an addressee of Commission Decision
                                                                                98/692/EC of 25 November 1998 amending Decision 98/
                                                                                256/EC as regards certain emergency measures to protect
                                                                                against bovine spongiform encephalopathy and of Commission
                                                                                Decision 1999/514/EC of 23 July 1999 setting the date on
                                                                                which dispatch from the United Kingdom of bovine products
                                                                                under the date-based export scheme may commence by virtue of
                                                                                Article 6(5) of Council Decision 98/256/EC and which has
                   JUDGMENT OF THE COURT                                           not challenged the legality of those decisions within the time-
                                                                                limit laid down by the fifth paragraph of Article 230 EC does
                                                                                not have standing subsequently before a national court to invoke
                         of 22 October 2002                                        their unlawfulness in order to dispute the merits of an action
                                                                                brought against it.
in Case C-241/01 (Reference for a preliminary ruling from
the Conseil d’État): National Farmers’ Union v Secrétariat
                    général du gouvernement (1)
                                                                             2.    Since Council Directive 89/662/EEC of 11 December 1989
                                                                                concerning veterinary checks in intra-Community trade with a
(Agriculture — Combating bovine spongiform encephalopa-                            view to the completion of the internal market and Decision 98/
thy — Decisions 98/692/EC and 1999/514/EC ending the                               256, as amended by Decision 98/692, lay down the rules
ban on beef and veal from the United Kingdom — Whether                             necessary for the protection of public health upon the resumption
a Member State to which those decisions are addressed may                          of exports of beef and veal from the United Kingdom to the
challenge the legality thereof after the time-limit for bringing                   other Member States, lay down a Community procedure to
proceedings has expired or invoke Article 30 EC to justify its                     monitor compliance with that decision and a procedure for
                        refusal to end the ban)                                    amending it in the light of new scientific information and
                                                                                provide the appropriate legal framework for the adoption of
                                                                                interim protective measures by a Member State of destination
                            (2002/C 305/08)
                                                                                for the purpose of protecting public health, a Member State is
                                                                                not entitled to invoke Article 30 EC in order to prevent the
                      (Language of the case: French)                               resumption of imports to its territory of beef and veal from the
                                                                                United Kingdom which were carried out in accordance with
                                                                                Decisions 98/256, as amended by Decision 98/692, and
(Provisional translation; the definitive translation will be published             1999/514.
                     in the European Court Reports)
In Case C-241/01: Reference to the Court under Article 234
EC by the Conseil d’État (France) for a preliminary ruling in                (1 ) OJ C 245 of 1.9.2001.
the proceedings pending before that court between National
Farmers’ Union and Secrétariat général du gouvernement, on
the validity of Commission Decision 98/692/EC of 25 Novem-
ber 1998 amending Decision 98/256/EC as regards certain
emergency measures to protect against bovine spongiform
encephalopathy (OJ 1998 L 328, p. 28) and of Commission
Decision 1999/514/EC of 23 July 1999 setting the date on
which dispatch from the United Kingdom of bovine products


title: Case T-251/14: Action brought on 22 April 2014 — Promarc Technics v OHIM — PIS (Part of doors)

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/36

         Action brought on 22 April 2014 — Promarc Technics v OHIM — PIS (Part of doors)
   (Case T-251/14)
   2014/C 212/47
   Language of the case: Polish

      Parties

      Applicant: Promarc Technics s.c. Tomasz Pokrywa, Rafał Natorski (Zabierzów, Poland) (represented by: J. Radłowski, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Petrycki i Sorys sp.j. (PIS) (Jasło, Poland)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 January 2014 in Case R 1464/2012-3;

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Registered Community design in respect of which a declaration of invalidity has been sought: Design No 1608365-0001

      Proprietor of the Community design: The applicant

      Applicant for the declaration of invalidity of the Community design: The other party to the proceedings before the Board of Appeal

      Grounds of the application for a declaration of invalidity: It was alleged that the registered Community design lacks novelty and individual character

      Decision of the Invalidity Division: Design declared invalid

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Articles 4 to 9 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.


               29.10.2005

               EN

               Official Journal of the European Union

               C 271/18

         Removal from the register of Case C-360/01 (1)

   (2005/C 271/33)

      Language of the case: Italian

   By order of 4 April 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-360/01: Italian Republic v Commission and Council of the European Communities.

      (1)  OJ C 331 of 24.11.2001.


title: Case F-51/08: Action brought on 21 May 2008 — Stols v Council

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/34

         Action brought on 21 May 2008 — Stols v Council
   (Case F-51/08)
   (2008/C 183/68)
   Language of the case: French
   Parties

      Applicant: Wilhelmus Louis Maria Stols (Halsteren, Netherlands) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

      Defendant: Council of the European Union
   Subject-matter and description of the proceedings
   Annulment of the decision of the appointing authority not to include the applicant's name on the list of officials promoted to grade AST 11 for the 2007 promotion exercise.
   Form of order sought

               —

               Annul the decision of the appointing authority not to include the applicant in the list of officials promoted to grade AST 11 for the 2007 promotion exercise, as evidenced by Staff Note No 136/07 of 16 July 2007;

               —

               Annul, in so far as it is necessary, the decision of the appointing authority to reject the applicant's complaint;

               —

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


title: Case T-282/06: Action brought on 9 October 2006 – Sun Chemical Group and others v Commission

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/42

         Action brought on 9 October 2006– Sun Chemical Group and others v Commission
   (Case T-282/06)
   (2006/C 281/75)
   Language of the case: English
   Parties

      Applicants: Sun Chemical Group BV (Weesp, The Netherlands), Siegwerk Druckfarben AG (Siegburg, Germany), Flint Group Germany GmbH (Stuttgart, Germany) (represented by: N. Dodoo, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annulment of Commission Decision COMP/M.4071 — Apollo/Akzo Nobel IAR of 29 May 2006;

               —

               order the Commission to bear the costs.

         Pleas in law and main arguments
   The application at stake is made pursuant to Article 230 EC for the annulment of Commission Decision COMP/M.4071— Apollo/Akzo Nobel IAR of 29 May 2006, declaring a notified concentration compatible with the common market.
   The applicants claim that the Commission cleared the concentration unconditionally, without affording it the careful, detailed and consistent review that it warranted, considering the serious competition concerns it allegedly raised. According to the applicants, a review of the decision, an assessment of the applicants' respective responses to the Commission's market investigation, and an examination of the salient features of the industry demonstrate that the Commission failed to consider or, where it purports to do so, ignored evidence that was vital for a complete and accurate assessment of the notified concentration.
   Moreover, the applicants submit that the Commission has not merely ignored its own guidelines on the assessment of horizontal mergers (1), but also the complaints expressed and the evidence supplied by them. In fact, the Commission apparently relied in several respects, solely on information provided by the merging parties without verifying its accuracy, resulting in a decision tainted with errors of law, fact and appreciation.
   Considering the circumstances outlined above, the Commission should have provided, as the applicants maintain, motivated reasoning for clearing the notified operation. Having failed to do so entails a violation of its duty to state reasons and thus of Article 253 EC.

      (1)  OJ 2004 C 31, p. 5-18


title: Judgment of the Court (Sixth Chamber) 21 March 2002 in Case C-130/99: Kingdom of Spain v Commission of the European Communities (EAGGF — Clearance of accounts — Financial years 1995 and 1996)

text:
18.5.2002               EN                      Official Journal of the European Communities                                             C 118/3
2.    Orders the Hellenic Republic to pay the costs.                       2.    Annuls Commission Decision 1999/187/EC of 3 February
                                                                                1999 on the clearance of the accounts presented by the Member
                                                                                States in respect of the expenditure for 1995 of the Guarantee
(1) OJ C 20 of 23.1.1999.                                                        Section of the European Agricultural Guidance and Guarantee
                                                                                Fund in so far as it excludes from Community financing
                                                                                ESP 1 355 544 657, representing the interest payable in the
                                                                                context of the additional levy on milk and milk-related products;
                                                                           3.    Dismisses the remainder of the application;
                                                                           4.    Orders the Kingdom of Spain to pay the costs.
                 JUDGMENT OF THE COURT
                                                                           (1) OJ C 204 of 17.7.1999.
                         (Sixth Chamber)
                           21 March 2002
in Case C-130/99: Kingdom of Spain v Commission of the
                   European Communities (1)
                                                                                JUDGMENT OF THE COURT
(EAGGF — Clearance of accounts — Financial years
                          1995 and 1996)                                                              (Fifth Chamber)
                          (2002/C 118/04)                                                              14 March 2002
                   (Language of the case: Spanish)                         in Case C-132/99: Kingdom of the Netherlands v Com-
                                                                                mission of the European Communities (1)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                          (EAGGF — Clearance of accounts — 1995 financial year
                                                                                — Aid to hemp production)
                                                                                (2002/C 118/05)
In Case C-130/99, Kingdom of Spain (Agent: M. López-Monı́s
Gallego) v Commission of the European Communities (Agent:
J. Guerra Fernández): Application for partial annulment of                                     (Language of the case: Dutch)
Commission Decision 1999/186/EC of 3 February 1999
excluding from Community financing certain expenditure
                                                                           (Provisional translation; the definitive translation will be published
incurred by the Member States under the Guarantee Section of
                                                                                in the European Court Reports)
the European Agricultural Guidance and Guarantee Fund
(EAGGF) (OJ 1999 L 61, p. 34) and Commission Decision
1999/187/EC of 3 February 1999 on the clearance of the
accounts presented by the Member States in respect of the
expenditure for 1995 of the Guarantee Section of the European              In Case C-132/99, Kingdom of the Netherlands (Agents: M. A.
Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 1999                  Fierstra and J. van Bakel), supported by Kingdom of Spain
L 61, p. 37), in so far as it concerns the Kingdom of Spain, the           (Agent: M. López-Monı́s Gallego) v Commission of the Euro-
Court (Sixth Chamber), composed of: F. Macken (Rapporteur),                pean Communities (Agents: T. van Rijn and C. van der
President of the Chamber, C. Gulmann, R. Schintgen, V. Skou-               Hauwaert): Application for partial annulment of Commission
ris and J.N. Cunha Rodrigues, Judges; F.G. Jacobs, Advocate                Decision 1999/187/EC of 3 February 1999 on the clearance
General; R. Grass, Registrar, has given a judgment on 21 March             of the accounts presented by the Member States in respect of
2002, in which it:                                                         the expenditure for 1995 of the Guarantee Section of the
                                                                           European Agricultural Guidance and Guarantee Fund (OJ 1999
                                                                           L 61, p. 37), in so far as it requires a correction of 50 % of the
1.    Annuls Commission Decision 1999/186/EC of 3 February                 expenditure declared by the Kingdom of the Netherlands in
      1999 excluding from Community financing certain expenditure          respect of hemp production aid, namely a correction of
      incurred by the Member States under the Guarantee Section of         NLG 117 277, the Court (Fifth Chamber), composed of: P. Jann
      the European Agricultural Guidance and Guarantee Fund                (Rapporteur), President of the Chamber, D.A.O. Edward,
      (EAGGF) in so far as it excludes from Community financing            A. La Pergola, M. Wathelet and C.W.A. Timmermans, Judges;
      the expenditure incurred by the Kingdom of Spain before              D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar,
      12 March 1996 in respect of production aid for olive oil;            has given a judgment on 14 March 2002, in which it:


title: Case T-47/12: Judgment of the General Court of 27 March 2014  — Intesa Sanpaolo v OHIM — equinet Bank (EQUITER) (Community trade mark — Opposition proceedings — Application for the Community figurative mark EQUITER — Earlier Community word mark EQUINET — Relative ground for refusal — Genuine use of the earlier mark — Article 42(2) of Regulation (EC) No 207/2009 — Obligation to state reasons)

text:
               19.5.2014

               EN

               Official Journal of the European Union

               C 151/17

         Judgment of the General Court of 27 March 2014 — Intesa Sanpaolo v OHIM — equinet Bank (EQUITER)
   (Case T-47/12) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark EQUITER - Earlier Community word mark EQUINET - Relative ground for refusal - Genuine use of the earlier mark - Article 42(2) of Regulation (EC) No 207/2009 - Obligation to state reasons))
   2014/C 151/22
   Language of the case: English

      Parties

      Applicant: Intesa Sanpaolo SpA (Turin (Italy)) (represented by: P. Pozzi, G. Ghisletti and F. Braga, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: equinet Bank AG (Frankfurt am Main (Germany))

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 6 October 2011 (Case R 2101/2010-1), relating to opposition proceedings between equinet Bank AG and Intesa Sanpaolo SpA.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 October 2011 (Case R 2101/2010-1);

               2.

               Orders OHIM to bear its own costs and to pay those incurred by Intesa Sanpaolo SpA.

      (1)  OJ C 109, 14.4.12.


title: Case C-43/03: Action brought on 3 February 2003 by the Commission of the European Communities against the Italian Republic

text:
C 70/16                EN                       Official Journal of the European Union                                           22.3.2003
The appellant claims that the Court should:                             —     Misinterpretation of Article 11 of Directive 65/65/EEC
                                                                              on the approximation of provisions laid down by law,
—     set aside the judgment of the Court of First Instance of                regulation or administrative action relating to medicinal
      the European Communities of 26 November 2002 in                         products (2): By requiring the existence of new ‘scientific
      Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00,                      data or information’ for the suspension or withdrawal of
      T-132/00, T-137/00 and T-141/00;                                        a marketing authorisation, the Court of First Instance
                                                                              relies on a criteria which does not appear in Article 11. By
—     order the defendants to pay the costs.                                  restricting the concept of ‘scientific data or information’
                                                                              to only data concerning medicinal products properly
                                                                              speaking, the Court of First Instance ignores that one of
                                                                              the elements to be taken account of when suspending or
Pleas and main arguments                                                      withdrawing a marketing authorisation is ‘therapeutic
                                                                              efficacy’. The Court of First Instance further ignores that
                                                                              the definition of what is to be understood by ‘therapeutic
—     Misinterpretation of Articles 15a(1) and 12 of Second
                                                                              efficacy’ hinges on an assessment carried out by scientific
      Council Directive 75/319/EEC of 20 May 1975 on
      the approximation of provisions laid down by Law,                       experts, on the basis of a scientific report, so that medical
                                                                              and scientific data concerning the substance cannot be
      Regulation or Administrative Action relating to pro-
      prietary medicinal products (1): The Court of First Instance            artificially separated from the assessment of its efficacy
                                                                              or effects which, by the inextricable nature of the links
      was wrong to refrain from examining the wording of
                                                                              between them, constitute as such scientific data which
      Article 15a(1) of Directive 75/319/EEC. If that article was
      intended to be restricted solely to the procedure for                   cannot be overlooked in the context of Article 11 of
                                                                              Directive 65/65/EEC.
      mutual recognition provided for in Article 10(2), the
      Community legislature would have indicated as much by
      means of specific wording. The effect of the reading of           —     (In the alternative) Breach of the precautionary principle.
      the Court of First Instance is to reduce Chapter III, which
      is none the less composed of Articles 8 to 15c, to a single       —     Breach of the principle of burden of proof: It is not for
      provision of that chapter. The interpretation of the                    the Commission but for the holders of the marketing
      wording of Article 15a(1) as referring to the whole of                  authorisations to show that the medicinal products in
      Chapter III of Directive 75/319 is confirmed by the                     question have the therapeutic efficacy required by the
      purpose of that provision as well as by the division of                 new scientific criteria.
      powers between the Member States and the Community.
      Article 15a (the ‘follow-up’ procedure) and Articles 10,          —     Disregard for the limits of judicial review: The Court of
      11 and 12 of Directive 75/319 share a common purpose,                   First Instance substitutes its assessment of the guidelines
      and it is reasonable to interpret Article 15a as applying               laid down by the Committee for Proprietary Medicinal
      to all the procedures referred to in Chapter III. The                   Products and the national guidelines referred to in the
      misinterpretation, by the Court of First Instance, of the               opinion of that committee of 31 August 1999 for that of
      distribution of powers in connection with Article 15a(1)                the scientists who drew up and assessed the guidelines in
      is the result of a failure to understand the division of                question.
      powers which characterises the whole of the other
      provisions in Chapter III of Directive 75/319. That               —     Distortion of the facts.
      chapter does not lay down an ‘exclusive competence of
      the Commission’ as against an ‘exclusive competence of            (1 ) OJ 1975 L 147, p. 13.
      the Member States’ as the Court of First Instance wrongly         (2 ) OJ, English Special Edition 1965-1966, p. 20.
      claims. Chapter III introduces procedures which are
      intended to attain the common objective, namely that of
      protecting public health and the completion of the
      internal market in medicinal products, by means of the
      instruments in Articles 10, 11 and 12 and of the ‘follow-
      up’ procedure in Article 15a. Each of those provisions
      forms part of the logical framework of shared and
      complementary competences, namely the Member States               Action brought on 3 February 2003 by the Commission
      retain responsibility for marketing authorisation of med-         of the European Communities against the Italian Republic
      icinal products for human use and the Community,
      represented by the Commission, intervenes whenever the                                        (Case C-43/03)
      various circumstances mentioned in the abovementioned
      articles require it. It is the Member States which then                                      (2003/C 70/26)
      implement the decisions adopted by the Commission in
      that context.
—     (In the alternative) Misinterpretation of Article 15a of          An action against the Italian Republic was brought before the
      Council Directive 75/319/EEC: That article does indeed            Court of Justice of the European Communities on 3 February
      apply to national marketing authorisations harmonised             2003 by the Commission of the European Communities,
      by the Member States following the consultation pro-              represented by Luca Visaggio, acting as Agent, with an address
      cedure under Article 12.                                          for service in Luxembourg.
 ---pagebreak--- 22.3.2003               EN                       Official Journal of the European Union                                          C 70/17
The Commission claims that the Court should:                                   b.    a subsequent decision taken on a date unknown to
                                                                                the United Kingdom in December 2002 or January
—     declare that by failing to adopt the laws, regulations                         2003 to decommit those sums;
      and administrative provisions necessary to comply with
      Directive 2000/77/EC of the European Parliament and of                   c.    any steps taken pursuant to such decisions including
      the Council of 14 December 2000 fixing the principles                          the act of decommitting those sums;
      governing the organisation of official inspections in the
      field of animal nutrition or, in any event, by failing to
      inform the Commission thereof the Italian Republic has                   d.    a Commission decision contained in the letter dated
                                                                                22 November 2002 to issue a recovery order for the
      failed to fulfil its obligations under Article 2(1) of that
      directive and under the EC Treaty.                                             sum of 9 272 767 Euros of ERDF money already
                                                                                paid to the United Kingdom in respect of expendi-
                                                                                ture incurred on MST 2; and
—     order the Italian Republic to pay the costs of the
      proceedings.
                                                                               e.    any steps taken pursuant to such decision.
                                                                         (2) Pursuant to Article 231 EC make a declaration that each
Pleas in law and main arguments                                                of the said measures is void.
                                                                         (3) Pursuant to Article 241 EC make a declaration that in the
Article 249 EC, under which a directive is binding on a                        event that the Commission’s interpretation of
Member State, as to the result to be achieved, entails that the                Article 52(5) of Regulation 1260/99 (1) and/or Article 10
Member States must respect the period for implementation                       of Annex to the Commission Decision C(92)1358/8 is
prescribed by the directive. That period ended on 29 December                  correct, the said measures are inapplicable against the
2001 without the Italian Republic having adopted the necess-                   United Kingdom.
ary provisions to comply with the directive which is the
subject of the Commission’s claims.
                                                                         (4) Make an order that the Commission pay the United
                                                                               Kingdom the costs of and occasioned by this Application
                                                                               and these proceedings.
                                                                         Pleas in law and main arguments
Action brought on 7 February 2003 by the United
Kingdom of Great Britain and Northern Ireland against
                          the Commission
                                                                         1)   T he De c om m it m e n t of 1 1 63 2 6 0 0 E u r os
                           (Case C-46/03)                                     of E R DF A ssi s ta nce
                           (2003/C 70/27)                                The Applicant submits that, in concluding that the United
                                                                         Kingdom had not complied with Article 52(5) of Regulation
                                                                         1260/1999, and in its conclusions as to the effect of any such
                                                                         non-compliance, the Commission erred in law and/or erred in
An action against the Commission was brought before the                  interpretation and/or made a manifest error in assessment.
Court of Justice of the European Communities on 7 February
2003 by the United Kingdom of Great Britain and Northern
Ireland, represented by P. Ormond, acting as agent, assisted by          The Applicant maintains that the sanction imposed by
D. Lloyd Jones QC and S. Lee, Barristers, with an address for            Article 52(5) of the Regulation applies only where an appli-
                                                                         cation for final payment has not been received by 31 March
service in Luxembourg.
                                                                         2001 and that the Regulation requires no more than that an
                                                                         application for final payment has been received by the
The Applicant claims that the Court should:                              stipulated date. The Regulation does not require the submission
                                                                         of an application in any particular form.
(1) Pursuant to Articles 230 and 231 EC make an order
      annulling the following measures:                                  In particular, the Regulation does not require that an appli-
                                                                         cation for final payment must be made in the standard form
      a.    a Commission decision contained in a letter dated            ERDF Certification of Expenditure which is usually employed
            22 November 2002 to decommit the sum of                      for this purpose. The Commission therefore erred in law in
            11 632 600 Euros in respect of expenditure incurred          concluding that failure to make an application for final
            on the Manchester/Salford/Trafford 2 operational             payment in that form led to the imposition of the sanction
            programme, or MST 2;                                         imposed by Article 52(5).


title: Case T-383/06: Action brought on 19 December 2006 — Icuna.com v Parliament

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/31

         Action brought on 19 December 2006 — Icuna.com v Parliament
   (Case T-383/06)
   (2007/C 20/48)
   Language of the case: French
   Parties

      Applicant: Icuna.com SCRL (Braîne-le-Château, Belgium) (represented by: J. Windey and P. de Bandt, lawyers)

      Defendant: European Parliament
   Form of order sought

               —

               annul the decision of the European Parliament of 1 December 2006, accepting the tender of the firm MOSTRA and rejecting the applicant's tender within the framework of the call for tenders EP/DGINFO/WEBTV/2006/2003;

               —

               declare that the Community is non-contractually liable and order the European Parliament to pay the applicant the sum of EUR 58 700 as compensation for the costs incurred in the framework of the call for tenders, as well as an amount for non-pecuniary damage by way of damage to reputation, and appoint an expert to assess that damage.

               —

               in any event, order the European Parliament to pay the costs of the present proceedings.

         Pleas in law and main arguments
   The applicant challenges the decision of the European Parliament rejecting the applicant's tender relating to the call for tenders EP/DGINFO/WEBTV/2006/0003, lot 2: programme contents, with a view to the creation of a European Parliament web television channel. (1)

   In support of its action, the applicant pleads, first, a manifest irregularity in the procedure leading to the adoption of the contested decision, due to the lack of competence of the author of the measure, the infringement of Article 101 of the Financial Regulation (2) and the infringement of Article 149 of Regulation No 2342/2002. (3)

   Secondly, the applicant claims that (a) the Parliament adopted a decision contrary to that initially issued on 7 August 2006 awarding it the contract, without giving reasons for this change, and (b) the selection criteria followed in the contested decision are not those which were applied in the context of the first decision of the Parliament, and are not defined as such in the call for tenders. The selection criteria contained therein, the principles of equal treatment and transparency and the duty to state reasons have therefore been contravened.

      (1)  Contract notice: ‘European Parliament web television channel’ (OJ 2006 S 87-091412)

      (2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)

      (3)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1)


title: Case T-311/02: Action brought on 10 October 2002 by Vitaly Lissotschenko and Joachim Hentze against the Office for Harmonisation in the Internal Market (Trade, Marks and Designs)

text:
C 305/28               EN                       Official Journal of the European Communities                                      7.12.2002
The applicant further takes issue with the supplementary fixing            applications was 18 March 2002. The Commission notified
of interest. The applicant invokes deferment of payment and                that vacancy notice to its staff on 14 March 2002. The
protection of legitimate expectations and raises the objection             deadline for the submission of applications, indicated in that
of misuse of powers. The Commission, it claims, did not make               publication, was 2 April 2002.
it clear during the period required by it for taking a decision
that it would be seeking increased interest for that period.
Instead, the Commission intimated that it would forego                     The applicant submitted his application after the deadline set
enforcement measures during its own decision-making period.                down in the Council’s vacancy notice expired, but before
The applicant regards the Commission’s decision as being at                the expiry of the deadline set down in the Commission’s
variance with this.                                                        publication. The applicant’s application was rejected by the
                                                                           Council as inadmissible.
( 1) The applicant has brought an action against that decision (Case
     T-239/01 SGL Carbon v Commission, OJ 2002 C 3, p. 34).                In support of his action, the applicant alleges breach of the
                                                                           principle of sound administration. According to the applicant,
                                                                           there cannot be contradictory decisions within a single admin-
                                                                           istrative authority and a single legal person, such as constituted
                                                                           by the European Communities. The applicant claims moreover
                                                                           that a more recent or more specific act, such as the Com-
                                                                           mission’s publication, prevails. In the applicant’s view, the
                                                                           principle of sound administration entails the application of the
Action brought on 30 September 2002 by Athanassios                         interpretation which is most plausible for the official.
     Theodorakis against Council of the European Union
                                                                           The applicant further alleges infringement of Article 29(1) of
                         (Case T-310/02)                                   the Staff Regulations and of Article 1(3) of Annex III to the
                                                                           Staff Regulations inasmuch as the same deadline did not apply
                                                                           to all the potential candidates, irrespective of which institution
                         (2002/C 305/59)
                                                                           they belonged to.
                    (Language of the case: French)
                                                                           Moreover, the result of applying the deadline in the Council’s
                                                                           vacancy notice was that officials of the Commission and the
                                                                           other institutions were discriminated against by comparison
An action against the Council of the European Union was                    with those of the Council inasmuch as officials at the Council
                                                                           had more time. Finally, the applicant alleges misuse of powers.
brought before the Court of First Instance of the European
Communities on 30 September 2002 by Athanassios Theodo-
rakis, residing in Uccle (Belgium), represented by Spyros
A. Pappas, lawyer.
The applicant claims that the Court should:
—      annul the decision of 10 July 2002 of the appointing                Action brought on 10 October 2002 by Vitaly Lissot-
       authority replying to his complaint of 24.05.2002;                  schenko and Joachim Hentze against the Office for
                                                                           Harmonisation in the Internal Market (Trade, Marks and
                                                                                Designs)
—      annul the decision of the appointing authority of the
       Council concerning the appointment of the RELEX
       Director General of the Council and recommence the                                          (Case T-311/02)
       selection procedure as initially requested by the applicant;
                                                                                (2002/C 305/60)
—      order the Council of the European Union to pay the costs.
                                                                                (Language of the case: German)
Pleas in law and main arguments
                                                                           An action against the Office for Harmonisation in the Internal
The applicant is an official in the Commission. He submitted               Market (Trade, Marks and Designs) was brought before the
an application for the post of Director General at the Council.            Court of First Instance of the European Communities on
That post was published on 25 February 2002 in Vacancy                     10 October 2002 by Vitaly Lissotschenko, of Dortmund
Notice 412/02. The same day the Council sent that vacancy                  (Germany), and Joachim Hentze, of Werl (Germany), represent-
notice to the other institutions. The deadline for submitting              ed by B. Hein, Rechtsanwalt.
 ---pagebreak--- 7.12.2002              EN                     Official Journal of the European Communities                                        C 305/29
The applicants claim that the Court should:                              Action brought on 10 October 2002 by Lucio Gussetti
                                                                             against Commission of the European Communities
—     annul the decision adopted on 31 July 2002 by the
      Second Board of Appeal of the Office for Harmonisation                                       (Case T-312/02)
      in the Internal Market (Trade, Marks and Designs),
      concerning appeal No R 0363/2000-2, in so far as it
      rejects the application for registration of the mark ‘Limo’                                  (2002/C 305/61)
      for goods in Class 9, being ‘Lasers for non-medical
      purposes, in particular diode lasers, lasers for measuring
      technology, lasers for the treatment of materials, lasers                              (Language of the case: Italian)
      for the printing industry, lasers for material testing
      and quality control, lasers for data processing or data
      transmission; optical and/or electronic apparatus and
      instruments, in particular imaging systems, microoptical
      systems, control electronics, optical systems with inte-           An action against the Commission of the European Communi-
      grated electronics and/or light sources; lenses; optical           ties was brought before the Court of First Instance of the
      lenses, supplementary lenses, prisms, corrective lenses;           European Communities on 10 October 2002 by Lucio Gus-
      diffraction apparatus (microscopy)’ and in Class 10, being         setti, represented by Massimo Merola, avvocato.
      ‘Lasers for medical purposes’;
—     order the defendant to pay the applicant’s costs.                  The applicant claims that the Court should:
                                                                         —      annul the decision of the Directorate General Adminis-
                                                                                tration of the Commission, notified by letter ADMIN B.3
                                                                                D(02) 8305 of 15 February 2002 by which, pursuant to
                                                                                Article 67(2) of the Staff Regulations, the Administration,
Pleas in law and main arguments                                                 with effect from 1 June 2001, retroactively deducted
                                                                                EUR 273.48 from his monthly salary;
The Community trade            the word mark ‘LIMO’ — appli-             —      order the Commission to pay the costs.
mark applied for:              cation No 1290022
Goods or services:             Goods in Classes 9, 10 and 11
                               (including inter alia lasers for non-     Pleas in law and main arguments
                               medical purposes, lasers for medi-
                               cal purposes and lighting appar-
                               atus and installations)
                                                                         The applicant in the present case is an official working for the
                                                                         defendant. Pursuant to Article 67(2) of the Staff Regulations,
Decision         contested     refusal of registration by the            EUR 68,48, corresponding to family allowances paid by the
before the Board of            examiner                                  Belgian ‘allocations familiales pour travailleurs salariés’ scheme
Appeal:                                                                  to his late wife in respect of their dependant child, was being
                                                                         deducted from his monthly Community salary.
Decision of the Board of       rejection of the application in
Appeal:                        respect of goods in Classes 9 and
                               10 and leave for publication of           The present case is based on a change, in accordance with the
                               the application in respect of goods       Belgian Law of 12 August 2000, in the practice of the Belgian
                               in Class 11                               authorities consisting in no longer deducting the Communities
                                                                         orphan’s pension.
Grounds of claim:              no absolute bars to registration
                               under Article 7(1)(b) and (c) of
                               Regulation (EC) No 40/94 (1).             In his complaint, the applicant raised the difficulty of consist-
                                                                         ency between the Communities and Belgian orphan’s pensions,
                                                                         pointing out that the EUR 68,48 being withheld was not
                                                                         attributable to family allowances since his late wife was no
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the         longer in receipt of them. The defendant was wrong to
     Community trade mark (OJ 1994 L 11, p. 1).                          consider the sums paid by the Belgian authorities by way of
                                                                         orphan’s allowances and those paid by the Communities’
                                                                         administration to be of like nature within the meaning of
                                                                         Article 67(2) of the Staff Regulations. Accordingly, the
                                                                         deduction in question is per se an error.


title: Order of the Court (Sixth Chamber) of 27 November 2001 in Case C-208/99: Portuguese Republic v Commission of the European Communities (EAGGF, Guidance Section — Decision of the Commission withdrawing financial assistance granted under Article 8 of Regulation (EEC) No 4256/88 — Action for partial annulment against the designation of a Member State as recipient — Manifestly inadmissible)

text:
C 84/30                   EN                    Official Journal of the European Communities                                           6.4.2002
1.    Declares that the Grand Duchy of Luxembourg has failed to            1.    The application is dismissed as manifestly inadmissible.
      fulfil its obligations under Article 1(a) of Council Directive
      75/442/EEC of 15 July 1975 on waste, as amended by                   2.    The parties shall bear their own costs.
      Council Directive 91/156/EEC of 18 March 1991, and
      Commission Decision 94/3/EC of 20 December 1993 estab-
      lishing a list of wastes pursuant to Article 1(a) of Directive       (1) OJ C 226 of 7.8.1999.
      75/442;
2.    Orders the Grand Duchy of Luxembourg to pay the costs.
(1) OJ C 200 of 14.7.2001.
                                                                                ORDER OF THE COURT
                                                                                (First Chamber)
                                                                                of 11 October 2001
                      ORDER OF THE COURT                                   in Case C-30/00 (reference for a preliminary ruling from
                                                                           the Supremo Tribunal Administrativo (Portugal)): William
                                                                           Hinton & Sons Lda v Fazenda Pública, intervener: Minis-
                           (Sixth Chamber)                                                            tério Público (1)
                        of 27 November 2001                                (Article 104(3) of the Rules of Procedure Post-clearance
                                                                           recovery of import duties — Entry in the accounts of the
in Case C-208/99: Portuguese Republic v Commission of                      import duties to be collected — Expiry of the time-limit for
                  the European Communities (1)                             taking action for recovery — Article 254 of the Act of
                                                                           Accession of Spain and Portugal — Obligation incumbent
                                                                           on the Portuguese Republic to proceed, at its own costs, to
(EAGGF, Guidance Section — Decision of the Commission                                the elimination of certain stocks of product)
withdrawing financial assistance granted under Article 8
of Regulation (EEC) No 4256/88 — Action for partial
annulment against the designation of a Member State as                                                 (2002/C 84/50)
               recipient — Manifestly inadmissible)
                                                                                (Language of the case: Portuguese)
                            (2002/C 84/49)
                                                                           (Provisional translation; the definitive translation will be published
                   (Language of the case: Portuguese)                                          in the European Court Reports)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                        In Case C-30/00: reference to the Court under Article 234
                                                                           EC from the Supremo Tribunal Administrativo (Supreme
                                                                           Administrative Tribunal) for a preliminary ruling in the
                                                                           proceedings pending before that court between William Hin-
In Case C-208/99: Portuguese Republic (Agents: L. Fernandes,               ton & Sons Lda and Fazenda Pública, intervener: Ministério
Â. Cortesão de Seiça Neves and P. Fragão) v Commission of               Público — on the interpretation of Articles 1, 2 and 5 of
the European Communities (Agents: A.M. Alves Vieira and                    Council Regulation (EEC) No 1697/79 of 24 July 1979 on the
P. Oliver) — application for partial annulment of C(1999)543,              post-clearance recovery of import duties or export duties
C(1999)544 and C(1999)545 of 4 March 1999 withdrawing                      which have not been required of the person liable for payment
the assistance granted to Belgravia Lda, Floreurop — Productos             on goods entered for a customs procedure involving the
Florestais Lda and Ordinal-Gestão de Investimentos Lda                    obligation to pay such duties (OJ 1979 L 197, p. 1), Article 254
respectively under the Guidance Section of the European                    of the 1985 Act concerning the conditions of accession and
Agriculture Guidance and Guarantee Fund (EAGGF) — the                      the adjustments to the Treaties (OJ 1985 L 302, p. 23), Article 8
Court (Sixth Chamber), composed of: F. Macken, President,                  of Council Regulation (EEC) N3771/85 of 20 December 1985
N. Colneric, C. Gulmann, J.-P. Puissochet (Rapporteur) and                 on stocks of agricultural products in Portugal (OJ 1985 L 362,
V. Skouris, Judges; A. Tizzano, Advocate General; R. Grass,                p. 21) and Articles 4 and 8 of Commission Regulation (EEC)
Registrar, gave a judgment on 27 November 2001, the                        No 579/86 of 28 February 1986 laying down detailed rules
operative part of which is as follows:                                     relating to stocks of products in the sugar sector in Spain and


title: Action brought on 15 February 1995 by Fédération de l'Industrie Cimentière Belge asbl against the Commission of the European Communities (Case T-30/95)

text:
22 . 4 . 95           | EN                   Official Journal of the European Communities                                  No C 101 /11
As regards the substance of the case, the applicant considers           (iii ) request the Court to make any measures of preliminary
that the contested Decision :                                                    enquiry that it may consider necessary.
— fails to show that it participated in an alleged agreement
      on non-transhipment to domestic markets,                          Pleas in law and main arguments adduced in support:
— further fails to show that it participated in any                     The applicant maintains, on the one hand, that the contested
      agreement or concerted practice relating to Greek                 decision has infringed the EC Treaty because :
      cement ,
                                                                        — the findings in the decision that the Applicant infringed
— further fails to show that the limited activities of the                    Article 85 ( 1 ) of the EC Treaty are erroneous, being
      White Cement Committee were capable of constituting a                    based on a materially incorrect appreciation of the facts
      restriction of competition within the meaning of                         and vitiated by manifest errors of assessment,
      Article 85 of the EC Treaty.
                                                                        — the analysis of the application of Article 85 ( 1 ) to
In the alternative, the applicant applies for the reduction or                 associations of undertakings in the decision is flawed by
annulment of the fines imposed on it, asserting that those                     errors of law and inadequate reasoning.
fines :
                                                                        It considers, on the other hand, that the Commission has
— result in discriminatory treatment of the undertakings                infringed the applicant's right to be heard in the
      allegedly party to the agreement on non-transhipment to           administrative proceedings under Regulations ( EEC )
      domestic markets,
                                                                        No 17/92 and ( EEC ) No 99/63 , by failing to give it a full
                                                                        copy of the Statement of Objections and full access to the
— are wrongly based on certain factors found to be                      file .
      aggravating,
— fail to take into consideration the mitigating factors
      relating specifically to the applicant,
— impose, in the white cement sector, a pecuniary sanction
      on the applicant in respect of conduct which it adopted,
      with the approval of the Commission, in another                   Action brought on 15 February 1995 by Fédération de
      agreemeent and which cannot, therefore, be regarded as            l'Industrie Cimentière Belge asbl against the Commission of
      constituting, in its case, wilful or negligent infringement                           the European Communities
      of Article 85 .                                                                             ( Case T-30/95 )
                                                                                ( 95/C 101/28 )
                                                                                (Language of the case: French)
Action brought on 14 February 1995 by Cembureau —                       An action against the Commission of the European
Association Européenne du Ciment against the Commission                 Communities was brought before the Court of First
                  of the European Communities                           Instance of the European Communities on 15 February
                           (Case T-26/95 )                              1995 by Fédération de l'Industrie Cimentière Belge asbl, the
                            ( 95/C 101 /27                              head office of which is in Brussels ( Belgium ), represented by
                                                                        Onno W. Brouwer and Frédéric P. Louis, of the Brussels Bar,
                                                                        with an address for service in Luxembourg at the Chambers
                 (Language of the case: English)                        of M. Loesch, 11 Rue Goethe.
An action against the Commission of the European
Communities was brought before the Court of First                       The applicant claims that the Court should:
Instance of the European Communities on 14 February
1995 by Cembureau — Association Européenne du Ciment,                   — annul Articles 1 , 2, 5 , 8 and 9 of the Decision of the
represented by Julian Ellison with an address for service in                   Commission of 30 November 1994 relating to a
Luxembourg at the office of Aloyse May, 31 Grand Rue,                          proceeding under Article 85 of the EC Treaty ( Cases
L-2011 Luxembourg.                                                             IV/33.126 and 33.322 — Cement), inasmuch as
                                                                               Fédération de l'Industrie Cimentière Belge asbl is stated
The applicant claims that the Court should :                                   therein to have participated in agreements or concerted
                                                                               practices contrary to Article 85 of the EC Treaty and has
  (i ) annul the Commission's Decision in Cases IV/33.126                      been fined in that regard,
        and 33.322 — Cement, in so far as it affects
        Cembureau;                                                      — in the alternative, annul or reduce the fine imposed on
                                                                               the applicant by Article 9 ( 10 ) of the Decision,
 (ii) order the Commission to pay Cembureau's costs;
        and                                                             — order the Commission to pay the costs .
 ---pagebreak--- No C 101/ 12          EN                   Official Journal of the European Communities                                     22 . 4 . 95
Pleas in law and main arguments adduced in support:                   Articles 2 and 4 of Regulation No 99/63 , in that the
                                                                      Commission did not allow it to put forward its views on the
                                                                      fundamental differences between the nature and reasoning
The applicant asserts, first of all, that the Commission              of the objections made against it and the Commission's
seriously infringed its rights to a fair hearing, in that, first, it  views as set out in the statement of objections .
allowed it only the most limited access to the file relating to
the proceeding, in complete contravention of the case-law of
the Court of First Instance and of its legitimate expectations,       As regards the fine, the applicant maintains that the
and, second, it denied the applicant access to the                    Commission, which has not shown the existence of the
exculpatory material contained in the sections relating to            alleged ' Cembureau agreement', was not entitled to impose
'national' objections, thereby preventing it from obtaining           on it a fine of ECU 100 000 in respect of that infringement.
information arising from the withdrawal of the said                   It also considers that the Commission infringed its right to a
objections .                                                          fair hearing by failing to warn it of its intention to impose a
                                                                      fine on it. Lastly, the applicant considers that the
                                                                      Commission has not legally justified the criteria on which it
                                                                      based its calculation of the duration of the infringement for
The applicant further considers that the contested decision           the purposes of determining the amount of the fine.
is vitiated by errors of fact and of law. The Commission:
— has failed to show that the applicant and its members
     were ever informed of the conclusion of the alleged
     ' Cembureau agreement' and, a fortiori, that the
     applicant and its members authorized or approved the             Action brought on 16 February 1995 by Eerste Nederlandse
     applicant's participation in the said agreement,                 Cementindustrie (ENCI) NV against the Commission of the
                                                                                European Communities
— has failed to demonstrate the existence of the alleged                                        (Case T-31/95 )
     'Cembureau agreement' on non-transhipment to home                                           ( 95/C 101 /29 )
     markets and regulation of trade between member
     countries,
                                                                                (Language of the case: Dutch)
— has failed to characterize in legal terms the objection             An action against the Commission of the European
     concerning the alleged rules designed to ensure fair             Communities was brought before the Court of First
     competition, and has not incorporated it as such in the          Instance of the European Communities on 16 February
     operative part of the decision,                                  1995 by Eerste Nederlandse Cementindustrie ( ENCI) NV,
                                                                      established at 's-Hertogenbosch, represented by B. W.
                                                                      Biesheuvel and T. M. Snoep, of the Hague Bar, with an
— has not indicated fully in what way the price information           address for service in Luxembourg at the Chambers of L.
     exchanged at the meetings of Head Delegates, the                 Frieden, 6 Avenue Guillaume .
     indefinite and innocuous nature of which is apparent
     from all the available documents, could have been such
     as to strengthen the alleged ' Cembureau agreement' or           The applicant claims that the Court should:
     permit the alleged establishment of rules governing 'fair
     or healthy or correct' competition,                              A.      primarily:
                                                                         (i ) annul the (contested parts of the ) decision of the
— has based its assessment of the exchange of statistical                     Commission of 30 November 1994 relating to a
     data regarding Benelux on erroneous findings,                            proceeding under Article 85 of the EC Treaty ( Cases
                                                                              IV/33.126 and 33.322 — Cement) (*) or at least annul
                                                                              it in relation to ENCI, on the ground of infringement
— has      not   demonstrated      the    connection    between
                                                                              of essential procedural requirements;
     competitive conduct within the Community and
     cooperation in large-scale exports within the ECEC .
                                                                      B.      alternatively:
                                                                       ( ii ) annul the (contested parts of the ) decision, or at least
The applicant also pleads a lack of reasoning in the                          annul it in relation to ENCI, on the ground that it
contested decision, in that the Commission has failed to                      infringes the law, including Article 85 of the EC
mention the reasons which prompted it to withdraw the                         Treaty, Regulation No 17/62 and/or general legal
'national' objections set out in the statement of                             principles;
objections.
                                                                      C.      in the further alternative:
It also pleads infringement of the procedural rules, and more         (iii) (considerably) reduce the fine imposed on the
particularly of Articles 19 ( 1 ) and Regulation No 17 and                    applicant;


title: Case C-346/04: Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Bundesfinanzhof (Germany) — Robert Hans Conijn v Finanzamt Hamburg-Nord (Freedom of establishment — Income tax — Tax return — Tax advice — Right to deduct costs)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/5

         Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Bundesfinanzhof (Germany) — Robert Hans Conijn v Finanzamt Hamburg-Nord
   (Case C-346/04) (1)

   (Freedom of establishment - Income tax - Tax return - Tax advice - Right to deduct costs)
   (2006/C 224/09)
   Language of the case: German
   Referring court
   Bundesfinanzhof
   Parties to the main proceedings

      Applicant: Robert Hans Conijn

      Defendant: Finanzamt Hamburg-Nord
   Re:
   Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 52 of the EC Treaty (now, after amendment, Article 43 EC) — National income-tax law — Non-residents precluded from exercising the right to deduct the costs incurred in obtaining tax advice for the purpose of preparing their income-tax return.
   Operative part of the judgment
   Article 52 of the EC Treaty (now, after amendment, Article 43 EC) precludes national legislation which does not allow a person with restricted tax liability to deduct from his taxable income, as special expenditure, the costs incurred by him in obtaining tax advice for the purpose of preparing his tax return, in the same way as a person with unrestricted tax liability.

      (1)  OJ C 251, 9.10.2004.


title: Case T-57/07: Action brought on 26 February 2007 — E.ON Ruhrgas and E.ON Földgáz Trade v Commission

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/47

         Action brought on 26 February 2007 — E.ON Ruhrgas and E.ON Földgáz Trade v Commission
   (Case T-57/07)
   (2007/C 95/95)
   Language of the case: English
   Parties

      Applicants: E.ON Ruhrgas International AG (Essen, Germany) and E.ON Földgáz Trade Zrt. (Budapest, Hungary) (represented by: G. Wiedemann and T. Lübbig, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the 4 paragraph at the bottom of page 1 of the decision by the European Commission (document No *30783) dated 19 December 2006 and directed to E.ON Ruhrgas International AG in Case M.3696 — E.ON/MOL; and annul the decision by the European Commission (document No *924) dated 16 January 2007 and also directed to E.ON Ruhrgas International AG in Case M.3696 — E.ON/MOL;

               —

               order the Commission to pay the costs incurred by the applicants in the present proceedings.

         Pleas in law and main arguments
   By decision of 21 December 2005 the Commission declared, subject to the applicant's compliance with certain conditions and obligations, the acquisition of two Hungarian gas companies by the applicant E.ON Ruhrgas International AG compatible with the common market and the functioning of the Agreement on the European Economic Area.
   As one of the obligations, the applicant E.ON Ruhrgas International AG undertook to organise and implement a gas release programme on the Hungarian market. The initial auction price was to be set at 95 % of the weighted average cost of gas provided that the aggregate loss the applicants may incur as a result of the final auction price being set below the weighted average cost of gas does not exceed EUR 26 million.
   In the contested letters the Commission indicated that the losses made by the applicants in a given auction should be offset by any profits made by the applicants in other auctions. The applicants contest this and are of the opinion that losses which results from the gas release auctions do not need to be offset by potential profits that may derive from future auctions.
   In support of their application, the applicants invoke two pleas in law.
   Firstly, the applicants submit that the Commission has no legal basis for increasing the financial burdens and thereby subsequently change the legal obligations resulting from the Commission's decision of 21 December 2005.
   Secondly, the applicants contend that the Rules of procedure of the Commission (1) have been infringed in that neither have all the members of the Commission deliberated on the content of the two contested letters, nor has there been a proper delegation of powers to the Directorate General of the Commission by virtue of Article 14 of the said rules.

      (1)  OJ 2000 L 308, p. 26, as amended.


title: Case T-610/14: Judgment of the General Court of 10 September 2015 — Laverana v OHIM (BIO organic) (Community trade mark — Application for Community figurative mark BIO organic — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/38

         Judgment of the General Court of 10 September 2015 — Laverana v OHIM (BIO organic)
   (Case T-610/14) (1)

   ((Community trade mark - Application for Community figurative mark BIO organic - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2015/C 354/46)
   Language of the case: German

      Parties

      Applicant: Laverana GmbH & Co. KG (Wennigsen, Germany) (represented by: J. Wachinger, M. Zöbisch and D. Chatterjee, lawyers)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 2 June 2014 (Case R 301/2014-4) concerning an application for registration of the figurative sign BIO organic as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Laverana GmbH & Co. KG to bear the costs.

      (1)  OJ C 361, 13.10.2014.


title: Case T-873/16: Action brought on 8 December 2016 — Groupe Canal + v European Commission

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/50

         Action brought on 8 December 2016 — Groupe Canal + v European Commission
   (Case T-873/16)
   (2017/C 038/66)
   Language of the case: French

      Parties

      Applicant: Groupe Canal + (Issy-les-Moulineaux, France) (represented by: P. Wilhelm, P. Gassenbach and O. de Juvigny, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               in the main,

                           —

                           declare Decision No AT.40023 of 26 July 2016 (Article 264 TFEU) null and void;

               —

               in the alternative,

                           —

                           annul the contested Decision No AT.40023 of 26 July 2016, as concerns the French market and the existing and future contracts of GROUPE CANAL +;

                           —

                           make any Order that the Court deems appropriate;

                           —

                           order the Commission to pay all the costs incurred by the company GROUPE CANAL +.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission made a manifest error of assessment when it treated the contract concluded between GROUPE CANAL + and Pictures International Limited (‘Paramount’) as being incompatible, by object, with Article 101(1) TFEU and when it found that the undertakings offered by Paramount did not affect cultural diversity and more generally the financing and operation of films in the EEA. That plea in law is divided into two parts.

                           —

                           First part, alleging the compatibility of the prohibited clauses with antitrust law. First, the contested decision was adopted only on the basis of a broad and legally erroneous interpretation of the concept of an anti-competitive object, which resulted in the European Commission failing to examine, or at least to show, the effects of the territoriality clauses. Secondly, the assessment of the allegedly anti-competitive nature of the territoriality clauses results solely from an incorrect interpretation of the functioning of the pay-TV market. Third, the clauses of territorial exclusivity which the Commission considers to be anti-competitive are on the contrary necessary for effective competition on the merits on the pay-TV market.

                           —

                           Second part, alleging prejudice to cultural diversity, to the financing and operation of films following the contested decision. First, the contested decision has the effect of limiting the financing of the audiovisual offer originally produced in French, distorting competition on the pay-TV market. Secondly, by restricting the financing of the audiovisual offer, the contested decision has the effect of restricting the quality and diversity of the offer made to consumers.

               2.

               Second plea in law, alleging that the Commission exceeded the limits of its power of appreciation when it accepted undertakings such as to respond to competition concerns which it had not expressed in its preliminary assessment. This plea in law is divided into two parts.

                           —

                           First part, according to which the contested decision applies to undertakings relating to all of its contracts concluded with television broadcasters in the EEA whereas the preliminary assessment related only to contracts concerning exclusive rights in the United Kingdom and in Ireland.

                           —

                           Second part, according to which the drafting of commitments results in their application in the United Kingdom being excluded once the latter has left the European Union although those commitments continue to apply on the other markets which are not referred to in the Statement of Objections and were not analysed by the Commission.

               3.

               Third plea in law, alleging a manifest infringement by the Commission of the principle of proportionality. This plea in law is divided into three parts.

                           —

                           First, the commitments made binding by the contested decision are incompatible with the competition concerns raised beforehand by the Commission.

                           —

                           Secondly, the commitments made compulsory by the contested decision violate the interests of third parties, which infringes the proportionality of those measures and justifies their annulment.

                           —

                           Third, the General Court should recognise the need for the Commission to ensure the proportionality of commitments vis-à-vis interested third parties.

               4.

               Fourth plea in law, alleging that the Commission misused its powers, since the commitments which it made compulsory interfere in the ongoing legislative process before the European Parliament, which expressed reservation and concern at the abolition of the territoriality of licences in the audiovisual sector and its impact on the financing of cinema, concentration in the sector and cultural diversity. The Commission did not take the above into account, pre-empting by negotiating with a single non-European undertaking, namely Paramount, the outcome of important legislative debates. This plea in law is divided into two parts.

                           —

                           First part, according to which the contested decision fulfils an aim which falls within the competences and objectives of the legislature and not of the Commission which took the place of the EU legislature.

                           —

                           Second part, according to which the set of indicia noted by GROUPE CANAL + constitutes sufficient prima facie evidence to give rise to a serious doubt concerning the Commission’s responsibility in the contested decision.