title: Case F-67/13: Judgment of the Civil Service Tribunal (3rd Chamber) of 25 June 2014  — Rihn v Europol (Civil service — Europol staff — Europol Convention — Europol Staff Regulations — Decision 2009/371/JHA — Application of the CEOS to members of the staff of Europol — Non-renewal of a fixed-term contract as a member of the temporary staff — Refusal to grant a contract for an indefinite period as a member of the temporary staff)

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/70

         Judgment of the Civil Service Tribunal (3rd Chamber) of 25 June 2014 — Rihn v Europol
   (Case F-67/13) (1)

   ((Civil service - Europol staff - Europol Convention - Europol Staff Regulations - Decision 2009/371/JHA - Application of the CEOS to members of the staff of Europol - Non-renewal of a fixed-term contract as a member of the temporary staff - Refusal to grant a contract for an indefinite period as a member of the temporary staff))
   2014/C 253/98
   Language of the case: French

      Parties

      Applicant: Philippe Rihn (The Hague, the Netherlands) (represented by: J.-J. Ghosez, lawyer)

      Defendant: European Police Office (represented by: initially, J. Arnould and D. Neumann, Agents, then J. Arnould, D. Neumann and D. El Khoury, Agents)

      Re:

   Application to annul the decision not to renew the applicant’s fixed-term contract.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr Rihn to bear his own costs and to pay the costs incurred by the European Police Office.

      (1)  OJ C 274, 21/9/2013, p. 31.


title: Case C-193/15 P: Judgment of the Court (Third Chamber) of 7 April 2016 — Tarif Akhras v Council of the European Union, European Commission (Appeal — Common foreign and security policy (CFSP) — Restrictive measures against the Syrian Arab Republic — Measures directed against persons and entities benefiting from or supporting the regime — Proof that inclusion on the lists is well founded — Set of indicia — Distortion of the sense of the evidence)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/20

      Judgment of the Court (Third Chamber) of 7 April 2016 — Tarif Akhras v Council of the European Union, European Commission
      (Case C-193/15 P) (1)

      ((Appeal - Common foreign and security policy (CFSP) - Restrictive measures against the Syrian Arab Republic - Measures directed against persons and entities benefiting from or supporting the regime - Proof that inclusion on the lists is well founded - Set of indicia - Distortion of the sense of the evidence))
      (2016/C 211/24)
      Language of the case: English

         Parties

         Appellant: Tarif Akhras (represented by: S. Millar and S. Ashley, Solicitors, D. Wyatt QC, and R. Blakeley, Barrister)

         Other parties to the proceedings: Council of the European Union (represented by: M.-M. Joséphidès and M. Bishop, acting as Agents), European Commission (represented by: D. Gauci and L. Havas, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders Mr Tarif Akhras to bear his own costs and to pay those incurred by the Council of the European Union;

                  3.

                  Orders the European Commission to bear its own costs.

         (1)  OJ C 205, 22.6.2015.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 18 September 1996 in Case T-353/94: Postbank NV v. Commission of the European Communities (Competition - Administrative procedure - Notification of the statement of objections and the minutes of the hearing - Commission decision allowing third parties to the administrative procedure to produce those documents in national legal proceedings - Measure against which an action may be brought - Professional secrecy - Business secrets)

text:
No C 336/24           EN                 Official Journal of the European Communities                                    9 . 11 . 96
                                                   COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                            JMC Automobiles, residing at Livange ( Luxembourg ),
                   of 18 September 1996                             Monin Automobiles SA, established at Bourg-de-Péage
in Case T-353 /94 : Postbank NV v. Commission of the
                                                                    ( France ), Europe Auto Service ( EAS ) SA, established at
                                                                    Livange ( Luxembourg ), SA Somaco SARL, established at
                 European Communities ( 1 )                         Fort-de-France ( France ), represented by Jean-Claude
(Competition — Administrative procedure — Notification              Fourgoux, of the Paris Bar, with an address for service in
ofthe statement ofobjections and the minutes ofthe hearing          Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue
— Commission decision allowing third parties to the                 Beatrix de Bourbon , against Commission of the European
administrative procedure to produce those documents in              Communities ( Agents : Berend Jan Drijber and Hervé
national legal proceedings — Measure against which an               Lehman ), application for annulment of the Commission 's
action may be brought — Professional secrecy — Business             decision of 13 October 1994 rejecting the applicants'
                              secrets)                              complaints relating to cartel practices alleged to be contrary
                         ( 96/C 336/49 )                            to Article 85 of the EEC Treaty , and for compensation for
                                                                    the damage which the applicants maintain they sustained by
               (Language of the case: Dutch)                        reason of the manner in which the Commission dealt with
                                                                    their complaints — the Court of First Instance of the
In Case T-353/94 : Postbank NV, established in Amsterdam,           European Communities ( Fourth Chamber, Extended
represented by O. W. Brouwer and F. P. Louis, of the                Composition ), composed of K. Lenaerts, President, R.
Brussels Bar, with an address for service in Luxembourg at          Garcίa-Valdecasas, P. Lindh, J. Azizi and J. D. Cooke,
the Chambers of M. Loesch, 11 Rue Goethe against                    Judges , Registrar: B. Pastor, Principal Administrator, gave a
Commission of the European Communities ( Agents : B. J.             judgment on 18 September 1996 , in which it:
Drijber and W. Wils ) — application for annulment of the
Commission decision , contained in its letters of
23 September 1994 and 3/4 October 1994 , conceding that             1 . dismisses as inadmissible the claims for a declaration of
third parties may, in national legal proceedings, produce the            an infringement;
statement of objections and the minutes of the hearing
which the Commission forwarded to them in the course of
an administrative procedure — the Court of First Instance of        2 . dismisses the claims for failure to act as inadmissible;
the European Communities ( First Chamber, Extended
Composition ), composed of A. Saggio , President, C. W.
Bellamy , A. Kalogeropoulos, V. Tiili and R. M. Moura
Ramos, Judges, Registrar : J. Palacio Gonzalez,                     3 . annuls the contested decision in so far as it rejects Mr
                                                                         Cesbron 's complaint of 18 November 1985 and the
Administrator, gave a judgment on 18 September 1996 , in
which it :                                                               complaint of Mr Cesbron, Asia Motor France, Monin
                                                                         Automobiles and EAS of 29 November 1988;
1 . annuls the Commission decision contained in its letters
    of 23 September 1 994 and 3/4 October 1 994 addressed
    to NUON Veluwse Nutsbedrijven NV and                            4 . dismisses the remainder of the claims for annulment as
    Maatschappij Elektriciteit en Gas Limburg NV;                        unfounded;
2 . orders the Commission to pay the costs.
                                                                    5 . dismisses the claims for damages as inadmissible;
(') OJ No C 370 , 24 . 12 . 1994 .
                                                                    6 . dismisses as unfounded the claims that the Commission
                                                                         should be ordered to pay the costs of the proceedings
JUDGMENT OF THE COURT OF FIRST INSTANCE                                  which culminated in the judgment of the Court of First
                   of 18 September 1996                                  Instance of 29 June 1993 in Case T-7/92 Asia
in Case T-387/94 : Asia Motor France SA and Others v.                    Motor France and Others v. Commission [ 1 993 ]
       Commission of the European Communities (')                        ECR 11-669 ;
(Competition — Obligations with regard to the
investigation of complaints — Legality of grounds for
                                                                    7. orders the Commission to bear its own costs and to pay
rejection — Manifest error of assessment — Statement of
                                                                         half the applicants ' costs.
                             reasons)
                         ( 96/C 336/50 )
                                                                    (') OJ No C 392 , 31 . 12 . 1994 .
               (Language of the case: French)
In Case T-387/94 : Asia Motor France SA , established at
Livange ( Luxembourg ), Jean-Michel Cesbron , trading as


title: Case T-349/08: Action brought on 26 August 2008 — Uralita v Commission

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/45

         Action brought on 26 August 2008 — Uralita v Commission
   (Case T-349/08)
   (2008/C 285/83)
   Language of the case: English
   Parties

      Applicant: Uralita, SA (Madrid, Spain) (represented by: I. Forrester, QC, K. Struckmann, P. Lindfelt, J. Garcia-Nieto Esteva, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission decision of 11 June 2008 — Case COMP/F/38.695 — Sodium Chlorate as far as it relates to Uralita; and

               —

               Order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   By means of this application the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C(2008) 2626 final of 11 June 2008 (Case COMP/38.695 — Sodium Chlorate) relating to a proceeding under Article 81(1) EC and Article 53(1) EEA in so far as it finds that the applicant must be held jointly and severally liable for infringement allegedly committed by Aragonesas, in which the applicant held shares, during the period 16 December 1996 through 9 February 2000.
   The applicant puts forward two pleas in law in support of its claims.
   First, it submits that the Commission erred in law by imputing the conduct of Aragonesas to Uralita by way of parent-subsidiary liability.
   Second, the applicant submits that the Commission erred in imputing the conduct of Aragonesas to Uralita by way of succession.


title: Case T-45/09: Action brought on 30 January 2009 — Al Barakaat International Foundation v Commission

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/39

         Action brought on 30 January 2009 — Al Barakaat International Foundation v Commission
   (Case T-45/09)
   2009/C 153/77
   Language of the case: Swedish

      Parties

      Applicant: Al Barakaat International Foundation (Spånga, Sweden) (represented by: L. Silbersky and T. Olsson, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul Commission Regulation (EC) No 1190/2008 in so far as it concerns the Al Barakaat International Foundation;

               —

               order the Commission to pay the costs of the proceedings in an amount to be indicated later.

      Pleas in law and main arguments

   The applicant seeks the annulment of Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, (1) by virtue of which the applicant is to be placed on the list of persons and entities whose funds and economic resources are frozen in accordance with Regulation No 881/2002. (2) Regulation No 1190/2008 was adopted after the Court of Justice delivered its judgment of 3 September 2008 in Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-0000, which annulled the previous list that included the applicant’s name.
   In support of its action the applicant relies on the following pleas in law:
   The Commission exceeded its powers, since the duty to amend defects in the administrative procedure does not give the Commission power to amend or supplement the list.
   Infringement of the duty to state reasons, the principle of solicitude, the rights of the defence and the right to effective legal remedies, since the reasoning as to why the applicant should remain on the list failed to include precise information regarding the alleged collaboration between the applicant on the one hand and Al-Qaida, Usama Bin Ladin and the Taliban on the other.
   Infringement of the prohibition of retroactive legislation, since the inclusion of the applicant on the list was based on events which occurred 10 years ago.
   Infringement of the principle of proportionality, since the freezing measures laid down in the contested regulation constitute a disproportionate and unacceptable interference which affects the right to respect for a person’s property.

      (1)  OJ 2008 L 322, p. 25.

      (2)  Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9).


title: Case C-99/11: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 2 March 2011 — Federal Republic of Germany v Z

text:
               11.6.2011

               EN

               Official Journal of the European Union

               C 173/4

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 2 March 2011 — Federal Republic of Germany v Z
   (Case C-99/11)
   2011/C 173/07
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicant: Federal Republic of Germany

      Defendant: Z

      Other parties: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht (The Representative of Federal Interests at the Federal Administrative Court); Der Bundesbeauftragte für Asylangelegenheiten beim Bundesamt für Migration und Flüchtlinge (Federal Commissioner for Asylum issues at the Federal Office for Migration and Refugees)

      Questions referred

               1.

               Is Article 9(1)(a) of Directive 2004/83/EC (1) to be interpreted as meaning that not every interference with religious freedom which breaches Article 9 of the European Convention on Human Rights constitutes an act of persecution within the meaning of Article 9(1)(a) of Directive 2004/83/EC, but that a severe violation of religious freedom as a basic human right arises only if the core area of that religious freedom is adversely affected?

               2.

               If question 1 is to be answered in the affirmative:

                           (a)

                           Is the core area of religious freedom limited to the profession and practice of faith in the areas of the home and neighbourhood, or can there be an act of persecution, within the meaning of Article 9(1)(a) of Directive 2004/83/EC, also in cases where, in the country of origin, the practice of faith in public gives rise to a risk to life or limb or physical freedom and the applicant accordingly abstains from such practice?

                           (b)

                           If the core area of religious freedom can also comprise certain religious practices in public:

                                       —

                                       does it suffice in that case, in order for there to be a severe violation of religious freedom, that the applicant feels that such practice of his faith is indispensable in order for him to preserve his religious identity,

                                       —

                                       or is it further necessary that the religious community to which the applicant belongs should regard that religious practice as constituting a central part of its doctrine,

                                       —

                                       or can further restrictions arise as a result of other circumstances, such as the general conditions in the country of origin?

               3.

               If Question 1 is to be answered in the affirmative:
               Is there a well-founded fear of persecution within the meaning of Article 2(c) of Directive 2004/83/EC if it is established that the applicant will carry out certain religious practices — other than those falling within the core area — after returning to the country of origin, even though they will give rise to a risk to life or limb or physical freedom, or is the applicant to be expected to abstain from engaging in such religious practices in the future?

      (1)  Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).


title: Case C-418/17: Request for a preliminary ruling from the Amtsgericht Nürnberg (Germany) lodged on 10 July 2017 — Andreas Fabri, Elisabeth Mathes v Sun Express Deutschland GmbH

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/7

         Request for a preliminary ruling from the Amtsgericht Nürnberg (Germany) lodged on 10 July 2017 — Andreas Fabri, Elisabeth Mathes v Sun Express Deutschland GmbH
   (Case C-418/17)
   (2017/C 347/07)
   Language of the case: German

      Referring court

   Amtsgericht Nürnberg

      Parties to the main proceedings

      Applicants: Andreas Fabri, Elisabeth Mathes

      Defendant: Sun Express Deutschland GmbH

      Questions referred

               1.

               Does a change in reservation to another flight constitute a situation covered by Article 4(3) of Regulation (EC) No 261/2004? (1)

               If the first question is to be answered in the affirmative:

               2.

               Must that provision also be applied to a change in reservation which was not instigated by the air carrier, but by the tour operator alone?

      (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91; OJ 2004 L 46, p. 1.


title: Case C-450/06: Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 6 November 2006 — Varec SA v État belge

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/39

         Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 6 November 2006 — Varec SA v État belge
   (Case C-450/06)
   (2006/C 326/82)
   Language of the case: French
   Referring court
   Conseil d'État (Belgium)
   Parties to the main proceedings

      Applicant: Varec SA

      Defendant: État belge
   Question referred
   Must Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (1), read with Article 15(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (2), and Article 6 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (3), be interpreted as meaning that the authority responsible for the appeal procedures provided for in that article must ensure confidentiality and observance of the business secrets contained in the files communicated to it by the parties to the case including the awarding authority, whilst at the same time being entitled to apprise itself of such information and take it into consideration?

      (1)  OJ L 395, 30.12.1989, p. 33.

      (2)  OJ L 199, 09.08.1993, p. 1.

      (3)  OJ L 134, 30.04.2004, p. 114.


title: Case C-15/02: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by order of 16 January 2002 in the appeals concerning Dr Roman Moser, the Bürgermeister der Landeshauptstadt Salzburg, and the land transfer agent of the Land of Salzburg

text:
6.4.2002               EN                     Official Journal of the European Communities                                          C 84/51
Reference for a preliminary ruling by the Unabhängiger                   —     Order the Italian Republic to pay the costs.
Verwaltungssenat Salzburg by order of 16 January 2002
in the appeals concerning Dr Roman Moser, the Bürger-
meister der Landeshauptstadt Salzburg, and the land
            transfer agent of the Land of Salzburg                       Pleas in law and main arguments
                         (Case C-15/02)
                                                                         The Commission claims that Directive 98/59 applies to
                                                                         collective redundancies carried out by any ‘employer’, that is
                         (2002/C 84/89)                                  by any natural or legal person who has created an employment
                                                                         relationship, regardless of whether he is engaged in profit-
                                                                         making activities. It follows, therefore, that the implementing
                                                                         Italian regulations, and in particular Law No 223/91, which
Reference has been made to the Court of Justice of the                   restricts the application of the guarantees to employees of
European Communities by order of the Unabhängiger Verwal-                ‘undertakings’ alone, wrongfully exclude all employers engaged
tungssenat Salzburg (Independent Administrative Chamber,                 in non-profit-making activities.
Salzburg) of 16 January 2002, received at the Court Registry
on 22 January 2002, for a preliminary ruling in the appeals
concerning Dr Roman Moser, the Bürgermeister der Lande-
shauptstadt Salzburg, and the land transfer agent of the Land
of Salzburg on the following question:
Are the provisions of Article 56 et seq. of the EC Treaty to be          Action brought on 6 February 2002 by the Commission
interpreted as precluding the application of Paragraphs 12, 36           of the European Communities against the Republic of
and 43 of the Salzburger Grundverkehrsgesetz (Salzburg Land                                             Austria
Transfer Law) of 1997 in the version published in LGBl.
No. 11/1999, whereby any person who wishes to acquire a
building plot in the federal Land of Salzburg must comply                                           (Case C-33/02)
with a notification or authorisation procedure in respect of the
acquisition of that plot, with the consequence that one of the                                      (2002/C 84/91)
fundamental freedoms of the acquirer of title as guaranteed by
the laws of the European Union has been infringed in this
case?
                                                                         An action against the Republic of Austria was brought
                                                                         before the Court of Justice of the European Communities
                                                                         on 6 February 2002 by the Commission of the European
                                                                         Communities, represented by Josef Christian Schieferer, of its
                                                                         Legal Service, with an address for service in Luxembourg at
                                                                         the office of Luis Escobar Guerrero, of its Legal Service, at
Action brought on 5 February 2002 by the Commission                      Centre Wagner C 254, Kirchberg.
of the European Communities against the Italian Republic
                                                                         The applicant claims that the Court should:
                         (Case C-32/02)
                                                                         —     declare that the Republic of Austria has failed to fulfil its
                         (2002/C 84/90)                                        obligations under Article 3(3) and (4), Article 7(1) and
                                                                               (2), Article 11(3), and Article 13(1) in conjunction
                                                                               with Article 2(3) of Council Directive 94/67/EC of
                                                                               16 December 1994 on the incineration of hazardous
An action against the Italian Republic was brought before the                  waste, by
Court of Justice of the European Communities on 5 February
2002 by the Commission of the European Communities,                            1.    incorrectly transposing, in Paragraph 3 no. 3.2 and
represented by A. Aresu acting as Agent.                                             no. 3.3 of the Verordnung des Bundesministers für
                                                                                wirtschaftliche Angelegenheiten über die Verbren-
                                                                                nung gefährlicher Abfälle in gewerblichen Betrieb-
The applicant claims that the Court should:                                          sanlagen (Regulation of the Federal Minister for
                                                                                Economic Affairs on the incineration of hazardous
—     Declare that, by not adopting provisions in respect of                         waste in commercial plants) (the ‘BMwA Regu-
      employers engaged in non-profit-making activities, the                         lation’), the rule in Article 3(3) of the directive that
      Italian Republic has failed to fulfil its obligations under                    the heat release from coincineration may not exceed
      Council Directive 98/59/EC of 20 July 1998 on the                              40 % of the total heat, in respect of ‘the total
      approximation of the laws of the Member States relating                        heat released in the plant at each moment of its
      to collective redundancies (OJ 1998 L 225, p. 16);                             operation’;


title: Judgment of the Court of First Instance of 14 October 2004 in Case T-60/02: Deutsche Verkehrsbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/14

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 14 October 2004
   in Case T-60/02: Deutsche Verkehrsbank AG v Commission of the European Communities (1)

   (Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange services - Germany - Procedure in default)
   (2004/C 314/36)
   Language of the case: German
   In Case T-60/02: Deutsche Verkehrsbank AG, established in Frankfurt am Main (Germany), represented by M. Klusmann and by F. Wiemer, lawyers, with an address for service in Luxembourg, against Commission of the European Communities — application for annulment of Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty — (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (OJ 2003 L 15, p. 1) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, for the Registrar, has given a judgment on 14 October 2004, in which it:

               1.

               Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant;

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 109 of 4.5.2002.


title: Case C-654/11 P: Order of the Court of 13 December 2012 — Transcatab SpA, in liquidation v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Italian market for the purchasing and primary processing of raw tobacco — Price fixing and market sharing — Attribution of liability for the unlawful conduct of a subsidiary to its parent company — Presumption of innocence — Rights of the defence — Obligation to state the reasons on which a decision is based — Principle of equal treatment)

text:
               23.2.2013

               EN

               Official Journal of the European Union

               C 55/2

         Order of the Court of 13 December 2012 — Transcatab SpA, in liquidation v European Commission
   (Case C-654/11 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Italian market for the purchasing and primary processing of raw tobacco - Price fixing and market sharing - Attribution of liability for the unlawful conduct of a subsidiary to its parent company - Presumption of innocence - Rights of the defence - Obligation to state the reasons on which a decision is based - Principle of equal treatment)
   2013/C 55/03
   Language of the case: Italian

      Parties

      Appellant: Transcatab SpA, in liquidation (represented by: G. Mastrantonio, avvocato)

      Other party to the proceedings: European Commission (represented by: L. Malferrari, Agent)

      Re:

   Appeal brought against the judgment of the General Court (Third Chamber) of 5 October 2011 in Case T-39/06 Transcatab v Commission, in which the General Court dismissed the application for the partial annulment of Commission Decision C(2005) 4012 final of 20 October 2005 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 — Raw tobacco — Italy) and for a reduction of the fine imposed on Transcatab by that decision and the counterclaim by the Commission seeking to increase that fine — Italian market for the purchasing and primary processing of raw tobacco — Attribution of liability to a parent company for infringements of competition rules committed by its subsidiaries — Rebuttable presumption in the case of a 100 % shareholding — Fundamental principles governing the taking of evidence — Obligation to state the reasons on which a decision is based — Rights of the defence — Principle of equal treatment

      Operative part of the order

               1.

               The appeal is rejected.

               2.

               Transcatab SpA is ordered to pay the costs.

      (1)  OJ C 49, 18.2.2012.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/63

         Action brought on 20 February 2004 by Anheuser-Busch, Incorporated against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-71/04)
   (2004/C 94/159)
   Language of the case: to be determined pursuant to article 131(2) of the Rules of Procedure - language in which the case was submitted: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 20 February 2004 by Anheuser-Busch, Incorporated, St. Louis, Missouri, USA, represented by Dr V.von Bomhard, Dr A. Renck and Dr A. Pohlmann, lawyers.
   Budejovicky Budvar, narodni podnik was a further party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul Decision R 1000/2001-2 of 3 December 2003 of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) inasmuch as it rejected the contested mark ‘AB GENUINE BUDWEISER KING OF BEERS’ for goods in Class 32

               —

               order the cost of proceedings to be borne by the defendant

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               Anheuser-Busch Inc.

               Community trade mark sought:

               Figurative mark ‘AB GENUINE BUDWEISER KING OF BEERS’for goods in class 32 (beer etc.)

               Proprietor of mark or sign cited in the opposition proceedings:

               Budejovicky Budvar

               Mark or sign cited in opposition:

               Word national mark ‘BUDWEISER’

               Decision of the Opposition Division:

               Registration refused

               Decision of the Board of Appeal:

               Appeal rejected

               Pleas in law:

               Infringement of Articles 42 (2), (3) of Regulation 40/94 (1). In the context of this plea, the applicant contends that the proof of use submitted by the opponent was insufficient to sustain genuine use. Infringement of Article 8 (1) (b) of Regulation 40/94.
               In this context, the applicant submits that there is no likelihood of confusion between the marks in question.

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


title: Case T-145/12: Action brought on 29 March 2012 — Bayerische Motoren Werke v OHIM (ECO PRO)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/29

         Action brought on 29 March 2012 — Bayerische Motoren Werke v OHIM (ECO PRO)
   (Case T-145/12)
   2012/C 165/49
   Language of the case: English

      Parties

      Applicant: Bayerische Motoren Werke AG (München, Germany) (represented by: C. Onken, lawyer)

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

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 January 2012 in case R 1418/2011-4;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘ECO PRO’ for goods in classes 9 and 12 — International Registration (IR) No W 1059979

      Decision of the Examiner: Refused protection of the International Registration designating the European Union.

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that the International Registration of the applicant’s trademark was devoid of distinctive character within the meaning of this article.


title: Case C-495/99: Action brought on 21 December 1999 by the Commission of the European Communities against the French Republic

text:
C 63/16                EN                   Official Journal of the European Communities                                       4.3.2000
— Infringement of the freedom of estab-                                Pleas in law and main arguments
    lishment.
                                                                       The Member States are required by the binding character of
                                                                       the third paragraph of Article 249 EC and of Article 10 EC (ex
    In view of the fact that in Germany only a company whose
                                                                       third paragraph of Article 189 and Article 5 of the EC Treaty)
    employees carry out construction work accounting for
                                                                       to adopt the measures needed to transpose directives into
    more than 50 % of the company’s total working time can
                                                                       national law before the expiry of the period laid down for that
    be treated as being a construction company, it makes little
                                                                       purpose and to communicate those measures immediately to
    sense for construction companies from other Member
                                                                       the Commission. That period expired on 21 November 1996
    States to establish separate subsidiaries in Germany
                                                                       without the Hellenic Republic having communicated to the
    employing exclusively commercial and technical staff (for
                                                                       Commission the provisions transposing the directive at issue
    instance, in order to secure or develop projects), since
                                                                       into national law.
    these are not in a position, should orders for work
    come in, to carry out the work through deployment of
    construction workers, from their other (foreign) subsidia-         (1) OJ L 319 of 12.12.1994, p. 14.
    ries or from the parent company. This also constitutes
    discriminatory treatment, inasmuch as German subsidiari-
    es of German construction undertakings continue to be
    treated as construction companies even if they do not
    themselves satisfy the 50 % rule.
                                                                       Action brought on 21 December 1999 by the Commission
                                                                       of the European Communities against the French Republic
                                                                                (Case C-495/99)
                                                                                (2000/C 63/30)
                                                                       An action against the French Republic was brought before the
Action brought on 21 December 1999 by the Commission                   Court of Justice on 21 December 1999 by the Commission of
of the European Communities against the Hellenic Repub-                the European Communities, represented by Peter Oliver, Legal
                                lic                                    Adviser, acting as Agent, with an address for service in
                                                                       Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
                                                                       Centre, Kirchberg.
                         (Case C-494/99)
                                                                       The applicant claims that the Court should:
                          (2000/C 63/29)
                                                                       1. declare that, by failing to adopt the laws, regulations
                                                                            and administrative provisions necessary to comply with
An action against the Hellenic Republic was brought before the              Council Directive 96/93/EC on the certification of animals
Court of Justice of the European Communities on 21 December                 and animal products (1), the French Republic has failed to
1999 by the Commission of the European Communities,                         comply with its obligations under that directive and under
represented by Maria Patakia, of its Legal Service, and Frank               the Treaty;
Benyon, Legal Adviser in its Legal Service, with an address for
service in Luxembourg at the office of Carlos Gómez de la             2. order the French Republic to pay the costs.
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                       Pleas in law and main arguments
The Commission claims that the Court should:
                                                                       The mandatory nature of the provisions of Articles 249 and
                                                                       10 EC is such as to oblige Member States to which directives
— declare that, by not adopting and communicating to the               are addressed to adopt the measures necessary in order to
    Commission within the time-limit laid down in the laws,            transpose those directives into their national legal order within
    regulations and administrative provisions necessary to             the time-limit prescribed therein. The time-limit fixed by
    comply fully with Council Directive 94/56/EC (1) of                Article 9 of Directive 96/93/EC expired on 1 January 1998
    21 November 1994 establishing the fundamental prin-                but France has not adopted the necessary measures.
    ciples governing the investigation of civil aviation accidents
    and incidents, the Hellenic Republic has failed to fulfil its
    obligations under the Treaty and that directive;                   (1) JO L 13 of 16 January 1997, p. 18.
— order the Hellenic Republic to pay the costs.


title: Case C-368/06: Reference for a preliminary ruling from the Administrative Court, Lyon lodged on 8 September 2006 — CEDILAC v Minister for the Economy, Finance and Industry

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/25

         Reference for a preliminary ruling from the Administrative Court, Lyon lodged on 8 September 2006 — CEDILAC v Minister for the Economy, Finance and Industry
   (Case C-368/06)
   (2006/C 281/39)
   Language of the case: French
   Referring court
   Administrative Court, Lyon
   Parties to the main proceedings

      Applicant: CEDILAC

      Defendant: Minister for the Economy, Finance and Industry
   Question referred
   Are the enacting provisions adopted by France to accompany the repeal of the one-month delay rule compatible with Articles 17 and 18(4) of Directive 1997/388/EEC of the Council of the European Communities of 17 May 1977? (1)

      (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-252/12: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 May 2012 — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/13

         Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 May 2012 — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd
   (Case C-252/12)
   2012/C 227/18
   Language of the case: English

      Referring court

   Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Applicants: Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd

      Defendants: Asda Stores Ltd

      Questions referred

               1.

               Where a trader has separate registrations of Community trade marks for

                           (i)

                           a graphic device mark;

                           (ii)

                           a word mark;

                     and uses the two together, is such use capable of amounting to use of the graphic device mark for the purposes of Articles 15 and 51 of Regulation 207/2009? (1) If yes, how is the question of use of the graphic mark to be assessed?

               2.

               Does it make a difference if:

                           (i)

                           the word mark is superimposed over the graphic device?

                           (ii)

                           the trader also has the combined mark comprising graphic device and word mark registered as a Community trade mark?

               3.

               Does the answer to A or B depend upon whether the graphic device and the words are perceived by the average consumer as (i) being separate signs; or (ii) each having an independent distinctive role? If so, how?

               4.

               Where a Community trade mark is not registered in colour, but the proprietor has used it extensively in a particular colour or combination of colours such that it has become associated in the mind of a significant portion of the public (in a part but not the whole of the Community) with that colour or combination of colours, is the colour or colours with which the defendant uses the sign complained of relevant in the global assessment of (i) likelihood of confusion under Article 9(1)(b) or (ii) unfair advantage under Article 9(1)(c) of Regulation 207/2009? If so, how?

               5.

               If so, is it relevant as part of the global assessment that the defendant itself is associated in the mind of a significant portion of the public with the colour or particular combination of colours which it is using for the sign complained of?

      (1)  OJ L 78, p. 1


title: Reference for a preliminary ruling from the Tribunale di Genova - Prima Sezione Civile - by order of that court of 1 February 1996 in the case of Trinity Alimentari Italia SPA v. Ministero delle Finanze dello Stato (Case C-128/96)

text:
1 . 6 . 96             EN                    Official Journal of the European Communities                                 No C 158/ 11
The applicant claims that the Court should :                            quantity had been compiled correctly and had formed
                                                                        the basis of the purchaser's calculation of the additional
                                                                        levy ?
1 , declare that, by providing that VAT exemption for
      services closely linked to sport or physical education
      applies only to private bodies whose membership fees do           Or does that phrase refer only to the amount derived from
      not exceed a specified amount, the Kingdom of Spain               the figures, whether correct or not, declared by the
      has infringed Article 13 ( A ) ( 1 ) ( m ) of the Sixth VAT       purchaser and forming the basis of the calculation of the
      Directive ( 77/388/EEC ) ( M ;                                    additional levy ?
                                                                        If the first interpretation is correct, the question arises
2 , order the Kingdom of Spain to pay the costs .                       whether the entire amount of additional levy lawfully due is
                                                                        payable on the date specified in the Regulation ( at that time
                                                                        30 June ), so that, in the event of part payment resulting from
Pleas in law and main arguments                                         the purchaser's figures being too low, the person liable to
                                                                        pay the additional levy ( in Germany the milk producer ) must
The restriction imposed by the Spanish Law on                           pay, from 1 July of that year, interest charged under national
exemptions ( 2 ) does not appear in the wording of the Sixth            law on the balance .
Directive and must therefore be considered to be an
infringement of Article 13 . The Member States cannot make              (') OJ No L 139 , 4 . 6 . 1988 , p . 12 .
the exemption provided for in Article 13 ( m ) subject to
conditions other than those laid down in Article 13 ( 2 ).
Neither does the Spanish VAT legislation observe the aim set
down in the eighth recital of the preamble to the Sixth
Directive, since the imposition of any condition not
provided for in Article 13 is contrary to the aim of drawing
up a common list of exemptions so that the Communities'
own resources may be collected in a uniform manner in all               Reference for a preliminary ruling from the Tribunale di
the Member States . The Spanish Law thus infringes not only             Genova — Prima Sezione Civile — by order of that court of
Article 1 3 of the Sixth Directive but also the objectives of the       1 February 1996 in the case of Trinity Alimentari Italia SPA
                                                                                v. Ministero delle Finanze dello Stato
common system of VAT.
                                                                                ( Case C-128/96 )
                                                                                ( 96/C 158/26 )
(') Sixth Directive 77/388/EEC ( OJ No L 145 , 13 . 6 . 1977,
      P - 1 ).
( 2 ) Law No 37/ 1992 as amended by Law No 42/1994 .                    Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Tribunale di
                                                                        Genova — Prima Sezione Civile — ( District Court, Genoa ,
                                                                        First Civil Section ) of 1 February 1996 , received at the Court
                                                                        Registry on 22 April 1996 , for a preliminary ruling in the
                                                                        case of Trinity Alimentari Italia SPA v . Ministero delle
                                                                        Finanze dello Stato on questions identical to those in Joined
                                                                        Cases C-47/95 and others ( M.
Reference for a preliminary ruling from the Hessisches
Finanzgericht by order of that court of 26 March 1996 in the             (') OJ No C 119 , 13 . 5 . 1995 , p . 5 .
case of Hartmut Simon v. Hauptzollamt Frankfurt am
                                Main
                         ( Case C-125 /96 )
                           ( 96/C 158/25 )
                                                                               Removal from the register of Case C-82/95 (*)
Reference has been made to the Court of Justice of the
European Communities by an order of the Hessisches                                                  ( 96/C 158/27 )
 Finanzgericht ( Finance Court, Hesse ) of 26 March 1996 ,
which was received at the Court Registry on 18 April 1996 ,              By order of 9 February 1996 the President of the Fifth
 for a preliminary ruling in the case of Hartmut Simon v.                Chamber of the Court of Justice of the European
 Hauptzollamt ( Principal Customs Office ) Frankfurt am                  Communities ordered the removal from the register of Case
 Main, on the following questions :                                      C-82/95 : Commission of the European Communities
                                                                         v. Hellenic Republic .
 In Article 15 ( 4 ) of Commission Regulation ( EEC )
 No 1546/88 of 3 June 1988 ( 1 ) is 'levy amount due' to be              (') OJ No C 137, 3 . 6 . 1995 .
 interpreted as the amount of additional levy on milk that
 would be payable if the figures used to determine the levies
 payable on deliveries in excess of the delivery reference


C 188/24              EN                   Official Journal of the European Communities                                      3.7.1999
Reference for a preliminary ruling by the Bundesgericht-              on 14 May 1999, for a preliminary ruling in the case of Sanofi
shof by order of that court of 25 March 1999 in the case              Winthrop SA v Directeur des Services Fiscaux de Val-de-Marne,
of Hans Schwarzkopf GmbH & Co. KG against Zentrale                    on the validity, in the light of the principle of proportionality,
        zur Bekämpfung unlauteren Wettbewerbs e.V.                    of Council Decision 89/847/EEC of 28 July 1989 authorising
                                                                      the French Republic to apply a measure derogating from the
                                                                      second subparagraph of Article 17(6) of the Sixth Direc-
                        (Case C-169/99)                               tive 77/388/EEC on the harmonisation of the laws of the
                                                                      Member States relating to turnover taxes. (1)
                        (1999/C 188/53)
                                                                      (1) OJ L 239, p. 21.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshof
(Federal Court of Justice) — First Civil Chamber of 25 March
1999, received at the Court Registry on 5 May 1999, for a
preliminary ruling in the case of Hans Schwarzkopf GmbH &
Co. KG against Zentrale zur Bekämpfung unlauteren Wettbew-
erbs e.V. on the following question:                                         Removal from the register of Case C-25/98 (1)
                                                                                (1999/C 188/55)
Is the term ‘practical reasons’ in the second sentence of
Article 6(1)(d) of Council Directive 76/768/EEC on the                By order of 22 March 1999 the President of the Court of
approximation of the laws of the Member State relating to             Justice of the European Communities ordered the removal
cosmetic products (1) to be interpreted as also permitting the        from the register of Case C-25/98: (reference for a preliminary
inclusion of prescribed warnings in several languages, where          ruling from the Juzgado de lo Social de Santiago de Compost-
the manufacturer or marketer of cosmetic products considers           ela): Dorinda Teresa López Tourı́s v Instituto Nacional de
it desirable on economic grounds and to enhance the market-           Empleo (INEM) and Instituto Nacional de la Seguridad Social
ability of the products in the Community, if as a result the full     (INSS).
warning appears in a clearly legible format on an enclosed
leaflet only, with the packaging and container simply fur-
                                                                      (1) OJ No C 94 of 28.3.1998.
nishing abbreviated information for lack of space? Specifically,
is it permissible for the packaging and container to carry not
the full warning but only abbreviated information where a
company, for the reasons given above, considers it desirable
to market its products in a uniform getup in the languages of
the nine different countries where the product is sold (which
include eight EU Member States)?
                                                                             Removal from the register of Case C-32/98 (1)
                                                                                (1999/C 188/56)
( 1) (OJ 1976 L 262, p. 169) as amended by Council Directive
     88/667/EEC (OJ 1988 L 382, p. 46).                               By order of 11 February 1999 the President of the Court of
                                                                      Justice of the European Communities ordered the removal
                                                                      from the register of Case C-32/98: Commission of the
                                                                      European Communities v Federal Republic of Germany.
                                                                      (1) OJ No C 94 of 28.3.1998.
Reference for a preliminary ruling from the Tribunal
Administratif (Administrative Court), Melun (Fifth
Chamber), France, by judgment of that court of 3 Decem-
ber 1998 in the case of Sanofi Winthrop SA v Directeur                       Removal from the register of Case C-227/98 (1)
             des Services Fiscaux de Val-de-Marne
                                                                                (1999/C 188/57)
                        (Case C-181/99)                               By order of 15 March 1999 the President of the Court of
                                                                      Justice of the European Communities ordered the removal
                        (1999/C 188/54)                               from the register of Case C-227/98: Commission of the
                                                                      European Communities v Ireland.
Reference has been made to the Court of Justice of the                (1) OJ No C 278 of 5.9.1998.
European Communities by a judgment of the Tribunal Admini-
stratif (Administrative Court), Melun (Fifth Chamber), France,
of 3 December 1998, which was received at the Court Registry


title: Case T-219/01: Action brought on 24 September 2001 by the Commerzbank AG against the Commission of the European Communities

text:
22.12.2001            EN                       Official Journal of the European Communities                                       C 369/13
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                              Pleas in law and main arguments
                           INSTANCE
                       of 9 August 2001                                   The pleas in law and main arguments are the same as those
                                                                          in Case T-216/01 (ReiseBank AG v Commission, not yet
                                                                          published).
in Case T-120/01 R: Carlo De Nicola v European Invest-
                           ment Bank
(Procedure for interim relief — Suspension from duties —
           Fumus boni juris — Urgency — None)
                        (2001/C 369/20)
                                                                          Action brought on 18 September 2001 by Alcon Univer-
                                                                          sal Ltd against the Office for Harmonisation in the Internal
                  (Language of the case: Italian)                                                      Market
                                                                                (Case T-237/01)
In Case T-120/01 R: Carlo De Nicola, residing in Rome,
represented by L. Isola, avocat, against European Investment
Bank (Agents: C. Gómez de la Cruz and C. Camilli) —                                              (2001/C 369/22)
application for suspension of the operation of a number of
measures adopted by the EIB concerning the applicant — the                                  (Language of the case: English)
President of the Court of First Instance has made an order on
9 August 2001, in which he:
1.   Dismissed the application for interim relief;                        An action against the Office for Harmonisation in the Internal
                                                                          Market was brought before the Court of First Instance of the
2.   Ordered that the costs be reserved.                                  European Communities on 18 September 2001 by Alcon
                                                                          Universal Ltd, represented by Hamish Porter of Theodore
                                                                          Goddard, London (United Kingdom).
                                                                          A further party to the proceedings before the Board of Appeal
                                                                          was Dr. Robert Winzer Pharma GmbH.
Action brought on 24 September 2001 by the Commerz-
bank AG against the Commission of the European Com-
                                                                          The applicant claims that the Court should:
                             munities
                                                                          —     .annul the decision of 18 July 2001 of the Board of
                        (Case T-219/01)                                         Appeal in case R0273/2000-1 and require the Office to
                                                                                refuse the cancellation of the Community trade mark.
                        (2001/C 369/21)
                                                                          —     order the Office to pay the costs.
                 (Language of the case: German)
                                                                          Pleas in law and main arguments
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 24 September 2001 by Commerz-
bank AG, Frankfurt am Main (Germany), represented by
H. Satzky and B. Maassen, Rechtsanwälte.                                  Proprietor of the Com-        Alcon Universal Ltd.
                                                                          munity trade mark:
The applicant claims that the Court should:                               The Community trade           word mark ‘BSS’ for certain goods
                                                                          mark concerned:               in class 5 (registration no 90134)
—    annul the Commission Decision of 17 August 2001 in
     Case COMP/E-1/37.919 addressed to the applicant relat-               Applicant for the declar-     Dr Robert Winzer Pharma GmbH.
     ing to the refusal of a supplementary request to see                 ation for invalidity:
     documents;
                                                                          Decision of the Cancel-       Invalidity of the Community trade
—    order the Commission to pay the costs.                               lation Division:              mark


title: Case T-523/13: Order of the General Court of 25 November 2013 — Euromed v OHIM — DC Druck-Chemie (EUROSIL)

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/45

         Order of the General Court of 25 November 2013 — Euromed v OHIM — DC Druck-Chemie (EUROSIL)
   (Case T-523/13) (1)

   2014/C 45/83
   Language of the case: English
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 352, 30.11.2013.


title: Information note on references from national courts for a preliminary ruling

text:
               11.6.2005

               EN

               Official Journal of the European Union

               C 143/1

         Notice
   An information note addressed to the national courts concerning the preliminary ruling procedure before the Court of Justice was communicated to them by the competent national authorities in 1996. That note having shown itself to be of use in practice, the Court has taken steps to bring it up to date in the light of experience and now considers it appropriate to distribute it by means of publication in the Official Journal of the European Union.

      INFORMATION NOTE

   on references from national courts for a preliminary ruling
   (2005/C 143/01)

               1.

               The preliminary ruling system is a fundamental mechanism of European Union law aimed at enabling national courts to ensure uniform interpretation and application of that law in all the Member States.

               2.

               The Court of Justice of the European Communities has jurisdiction to give preliminary rulings on the interpretation of the law of the European Union and on the validity of acts of secondary legislation. That general jurisdiction is conferred on it by Article 234 of the EC Treaty and, in certain specific cases, by other provisions.

               3.

               The preliminary ruling procedure being based on cooperation between the Court and national courts, it may be helpful, in order to ensure that that cooperation is effective, to provide the national courts with the following information.

               4.

               This practical information, which is in no way binding, is intended to provide guidance to national courts as to whether it is appropriate to make a reference for a preliminary ruling and, should they proceed, to help them formulate and submit questions to the Court.

         The role of the Court in the preliminary ruling procedure

               5.

               Under the preliminary ruling procedure, the Court's role is to give an interpretation of Community law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings, which is the task of the national court. It is not for the Court to decide issues of fact raised in the main proceedings or to resolve differences of opinion on the interpretation or application of rules of national law.

               6.

               In ruling on the interpretation or validity of Community law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply, if necessary by disapplying the rule of national law in question.

         The decision to submit a question to the Court
   The originator of the question

               7.

               Under Article 234 of the EC Treaty and Article 150 of the EAEC Treaty, any court or tribunal of a Member State, in so far as it is called upon to give a ruling in proceedings intended to arrive at a decision of a judicial nature, may as a rule refer a question to the Court for a preliminary ruling. The status of that court or tribunal is interpreted by the Court as a self-standing concept of Community law.

               8.

               However, in the specific sphere of acts of the institutions in Title IV of Part Three of the EC Treaty on visa, asylum, immigration and other policies related to free movement of persons — in particular jurisdiction and the recognition and enforcement of judicial decisions — a reference may be made only by courts or tribunals against the decisions of which there is no appeal, in accordance with Article 68 of the EC Treaty.

               9.

               Likewise, under Article 35 of the Treaty on European Union, acts of the institutions in the area of police and judicial cooperation in criminal matters may be the subject of a reference for a preliminary ruling only from courts in the Member States which have accepted the jurisdiction of the Court, each Member State specifying whether that right of referral to the Court applies to any court or tribunal of that State or only to those against the decisions of which there is no appeal.

               10.

               It is not necessary for the parties in the case to raise the question; the national court may do so of its own motion.

         References on interpretation

               11.

               Any court or tribunal may refer a question to the Court on the interpretation of a rule of Community law if it considers it necessary to do so in order to resolve a dispute brought before it.

               12.

               However, courts or tribunals against whose decisions there is no judicial remedy under national law must, as a rule, refer such a question to the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case-law may be applied), or unless the correct interpretation of the rule of Community law is obvious.

               13.

               Thus, a court or tribunal against whose decisions there is a judicial remedy may, in particular when it considers that sufficient clarification is given by the case-law of the Court, itself decide on the correct interpretation of Community law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful, at an appropriate stage of the proceedings, when there is a new question of interpretation of general interest for the uniform application of Community law throughout the Union, or where the existing case-law does not appear to be applicable to a new set of facts.

               14.

               It is for the national court to explain why the interpretation sought is necessary to enable it to give judgment.

         References on determination of validity

               15.

               Although national courts may reject pleas raised before them challenging the validity of Community acts, the Court has exclusive jurisdiction to declare such acts invalid.

               16.

               All national courts must therefore refer a question to the Court when they have doubts about the validity of a Community act, stating the reasons for which they consider that the Community act may be invalid.

               17.

               If a national court has serious doubts about the validity of a Community act on which a national measure is based, it may exceptionally suspend application of that measure temporarily or grant other interim relief with respect to it. It must then refer the question of validity to the Court of Justice, stating the reasons for which it considers the Community act to be invalid.

         The stage at which to submit a question for a preliminary ruling

               18.

               A national court or tribunal may refer a question to the Court of Justice for a preliminary ruling as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment; it is the national court which is in the best position to decide at what stage of the proceedings such a question should be referred.

               19.

               It is, however, desirable that a decision to seek a preliminary ruling should be taken when the proceedings have reached a stage at which the national court is able to define the factual and legal context of the question, so that the Court has available to it all the information necessary to check, where appropriate, that Community law applies to the main proceedings. It may also be in the interests of justice to refer a question for a preliminary ruling only after both sides have been heard.

         The form of the reference for a preliminary ruling

               20.

               The decision by which a national court or tribunal refers a question to the Court of Justice for a preliminary ruling may be in any form allowed by national law as regards procedural steps. It must however be borne in mind that it is that document which serves as the basis of the proceedings before the Court and that it must therefore contain such information as will enable the latter to give a reply which is of assistance to the national court. Moreover, it is only the actual reference for a preliminary ruling which is notified to the parties entitled to submit observations to the Court, in particular the Member States and the institutions, and which is translated.

               21.

               Owing to the need to translate the reference, it should be drafted simply, clearly and precisely, avoiding superfluous detail.

               22.

               A maximum of about ten pages is often sufficient to set out in a proper manner the context of a reference for a preliminary ruling. The order for reference must be succinct but sufficiently complete and must contain all the relevant information to give the Court and the parties entitled to submit observations a clear understanding of the factual and legal context of the main proceedings. In particular, the order for reference must:

                           —

                           include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based;

                           —

                           set out the tenor of any applicable national provisions and identify, where necessary, the relevant national case-law, giving in each case precise references (e.g. page of an official journal or specific law report, with any internet reference);

                           —

                           identify the Community provisions relevant to the case as accurately as possible;

                           —

                           explain the reasons which prompted the national court to raise the question of the interpretation or validity of the Community provisions, and the relationship between those provisions and the national provisions applicable to the main proceedings;

                           —

                           include, where appropriate, a summary of the main arguments of the parties.

                     In order to make it easier to read and refer to the document, it is helpful if the different points or paragraphs of the order for reference are numbered.

               23.

               Finally, the referring court may, if it considers itself to be in a position to do so, briefly state its view on the answer to be given to the questions referred for a preliminary ruling.

               24.

               The question or questions themselves should appear in a separate and clearly identified section of the order for reference, generally at the beginning or the end. It must be possible to understand them without referring to the statement of the grounds for the reference, which however provides the necessary background for a proper assessment.

         The effects of the reference for a preliminary ruling on the national proceedings

               25.

               A reference for a preliminary ruling in general calls for the national proceedings to be stayed until the Court has given its ruling.

               26.

               However, the national court may still order protective measures, particularly in a reference on determination of validity (see point 17 above).

         Costs and legal aid

               27.

               Proceedings for a preliminary ruling before the Court are free of charge and the Court does not rule on the costs of the parties to the main proceedings; it is for the national court to rule on those costs.

               28.

               If a party has insufficient means and where possible under national rules, the national court may grant that party legal aid to cover the costs, including those of lawyers' fees, which it incurs before the Court. The Court itself may also grant legal aid.

         Communication between the national court and the Court of Justice

               29.

               The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post (addressed to the Registry of the Court of Justice of the European Communities, L-2925 Luxembourg, telephone + 352-4303-1).

               30.

               The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents.

               31.

               The Court will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court's final decision.


title: Judgment of the Court of First Instance of 7 November 2002 in Joined Cases T-141/99, T-142/99, T-150/99 and T-151/99, Vela Srl and Tecnagrind SL v Commission of the European Communities (Agriculture — EAGGF — Withdrawal of financial assistance — Articles 23 and 24 of Regulation (EEC) No 4253/88 — Principles of legal certainty and protection of legitimate expectations — Principle of proportionality)

text:
25.1.2003                EN                      Official Journal of the European Communities                                         C 19/27
                                                          COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 21 November 2002
                                                                                of 7 November 2002
in Case T-88/98: Kundan Industries Ltd and Tata Inter-
       national Ltd v Council of the European Union ( 1)                    in Joined Cases T-141/99, T-142/99, T-150/99 and T-151/
                                                                            99, Vela Srl and Tecnagrind SL v Commission of the
(Dumping — Stainless steel fasteners — Calculation of                                          European Communities ( 1)
export price — Unreliability of the price — Calculation of
              normal value — Rights of the defence)
                                                                            (Agriculture — EAGGF — Withdrawal of financial assist-
                                                                            ance — Articles 23 and 24 of Regulation (EEC) No 4253/88
                           (2003/C 19/49)                                   — Principles of legal certainty and protection of legitimate
                                                                                expectations — Principle of proportionality)
                     (Language of the case: English)
                                                                                (2003/C 19/50)
In Case T-88/98, Kundan Industries Limited, Tata International
Limited, established in Mumbai (India), represented by                                         (Language of the case: Italian)
J.-F. Bellis and P. De Baere, lawyers, with an address for service
in Luxembourg, v Council of the European Union (Agents:
S. Marquardt, H.-J. Rabe and G. Berrisch), supported by
Commission of the European Communities (Agents: V. Kreus-
chitz and N. Khan): Application for the annulment of Article 1              In Joined Cases T-141/99, T-142/99, T-150/99 and T-151/99:
of Council Regulation (EC) No 393/98 of 16 February 1998                    Vela Srl, established in Milan (Italy), Tecnagrind SL, established
imposing a definitive anti-dumping duty on imports of                       in Barcelona (Spain), represented by G. M. Scarpellini, lawyer,
stainless steel fasteners and parts thereof originating in the              with an address for service in Luxembourg, Commission
People’s Republic of China, India, the Republic of Korea,                   of the European Communities (Agents: C. Cattabriga and
Malaysia, Taiwan and Thailand (OJ 1998 L 50, p. 1) the Court                M. Moretto) — Application, in Case T-141/99, for the
of First Instance (Fourth Chamber, Extended Composition),                   annulment of Commission Decision C (1999) 540 of 9 March
composed of: M. Vilaras, President, V. Tiili, J. Pirrung, P. Men-           1999 withdrawing the assistance granted to Vela Srl by
gozzi and A. W. H. Meij, Judges; H. Jung, Registrar, has given              Commission Decision C (92) 1494 of 30 June 1992, concern-
a judgment on 21 November 2002, in which it:                                ing grant of the EAGGF, Guidance Section, contribution under
                                                                            Council Regulation (EEC) No 4256/88 of 19 December 1988,
1.     Annuls Article 1 of Council Regulation (EC) No 393/98 of             laying down provisions for implementing Regulation (EEC)
       16 February 1998 imposing a definitive anti-dumping duty             No 2052/88 as regards the EAGGF Guidance Section (OJ 1988
       on imports of stainless steel fasteners and parts thereof            L 374, p. 25), in connection with Project No 92.IT.06.001
       originating in the People’s Republic of China, India, the            entitled Action in the form of a demonstrative project for the
       Republic of Korea, Malaysia, Taiwan and Thailand insofar as          introduction and promotion of cylindrical luffa in disadvan-
       it imposes an anti-dumping duty on exports to the European           taged European areas; in Case T-142/99, for the annulment of
       Community of products manufactured by Kundan Industries              Commission Decision C (1999) 541 of 4 March 1999
       Limited and exported by Tata International Limited which             withdrawing the assistance granted to Sonda Srl by Com-
       exceeds that which would apply but for an adjustment to the          mission Decision C (93) 3401 of 26 November 1993,
       export price made in respect of a commission.                        concerning grant of the EAGGF, Guidance Section, contri-
                                                                            bution under Council Regulation (EEC) No 4256/88, in
2.     Dismisses the remainder of the application.                          connection with Project No 93.IT.06.057 entitled Action in
                                                                            the form of a pilot demonstrative project for the reduction of
                                                                            production costs and fertiliser costs in sunflower cultivation;
3.     Orders the Council to bear its own costs and to pay 30% of the       in Case T-150/99, for the annulment of Commission Decision
       costs of the applicants and orders the Commission to bear its        C (1999) 532 of 4 March 1999 withdrawing the assistance
       own costs.                                                           granted to Tecnagrind SL by Commission Decision C (93)
                                                                            3395 of 26 November 1993, concerning grant of the EAGGF,
                                                                            Guidance Section, contribution under Council Regulation
( 1) OJ C 234, 25.7.1998.
                                                                            (EEC) No 4256/88, in connection with Project
                                                                            No 93.ES.06.031 entitled Demonstrative project for the mul-
                                                                            tiple optimisation of Vetiver (Vetiveria Zizanioides) in the
 ---pagebreak--- C 19/28                  EN                      Official Journal of the European Communities                                          25.1.2003
Mediterranean area; and, in Case T-151/99, for the annulment                1999 C 351, p. 29, and OJ 2000 C 71, p. 8), the Court of First
of Commission Decision C (1999) 533 of 4 March 1999                         Instance (Third Chamber, Extended Composition), composed
withdrawing the assistance made to Tecnagrind SL by Com-                    of: M. Jaeger, President, R. García-Valdecasas, K. Lenaerts,
mission Decision C (96) 2235 of 13 September 1996,                          P. Lindh and J. Azizi, Judges; Registrar: B. Pastor, Deputy
concerning grant of the EAGGF, Guidance Section, contri-                    Registrar, has given a judgment on 23 October 2002, in which
bution under Council Regulation (EEC) No 4256/88, in                        it:
connection with Project No 95.ES.06.005 entitled ‘Demonstra-
tive project for the processing if castor-oil plants (Ricinus
Communis) in agricultural undertakings for the extraction of                1.     Dismisses the applications;
aromatic essences’, the Court of First Instance (Third Chamber),
composed of: M. Jaeger, President, K. Lenaerts and J. Azizi,                2.     Orders the applicants to pay their own costs together with those
Judges; J. Palacio González, Administrator, for the Registrar,                     of the Commission.
has given a judgment on 7 November 2002, in which:
1.     The applications are dismissed.                                      (1 ) OJ C 47 of 19.2.2000.
2.     In each case, the applicants shall bear their own costs and pay
       those of the Commission.
( 1) OJ C 246, 28.8.99.
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 23 October 2002
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                in Joined Cases T-346/99, T-347/99 and T-348/99: Territo-
                                                                            rio Histórico de Álava — Diputación Foral de Álava and
                                                                              Others v Commission of the European Communities ( 1)
                        of 23 October 2002
in Joined Cases T-269/99, T-271/99 and T-272/99: Territo-                   (State aid — Decision to initiate the procedure under
rio Histórico de Guipúzcoa — Diputación Foral de Gui-                       Article 88(2) EC — Actions for annulment — Admissibility
púzcoa and Others v Commission of the European Com-                         — Tax measures — Selective nature — Legitimate expec-
                             munities ( 1)                                                     tations — Misuse of powers)
(State aid — Decision to initiate the procedure under Article                                          (2003/C 19/52)
88(2) EC — Actions for annulment — Admissibility — Tax
measures — Selective nature — Legitimate expectations —
                          Misuse of powers)                                                     (Language of the case: Spanish)
                           (2003/C 19/51)
                                                                            In Joined Cases T-346/99, T-347/99 and T-348/99, Territorio
                    (Language of the case: Spanish)                         Histórico de Álava — Diputación Foral de Álava, Territorio
                                                                            Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa,
                                                                            Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya,
                                                                            represented by A. Creus Carreras and B. Uriarte Valiente,
In Joined Cases T-269/99, T-271/99 and T-272/99, Territorio                 lawyers, v Commission of the European Communities (Agents:
Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa,                     F. Santaolalla Gadea, G. Rozet and G. Valero Jordana): Appli-
Territorio Histórico de Álava — Diputación Foral de Álava,                  cation for annulment of the Commission’s decision, notified
Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya,              to the Spanish authorities by letter of 29 September 1999, to
represented by A. Creus Carreras and B. Uriarte Valiente,                   initiate the procedure under Article 88(2) EC against the
lawyers, v Commission of the European Communities (Agents:                  Spanish State in relation to tax aid in the form of a reduction
F. Santaolalla Gadea, G. Rozet and G. Valero Jordana): Appli-               in the tax base for firms in the Provinces of Álava, Viscaya and
cation for annulment of the Commission’s decisions, notified                Guipúzcoa (OJ 2000 C 55, p. 2), the Court of First Instance
to the Spanish authorities by letters of 17 August 1999, to                 (Third Chamber, Extended Composition), composed of:
initiate the procedure under Article 88(2) EC against the                   M. Jaeger, President, R. García-Valdecasas, K. Lenaerts, P. Lindh
Spanish State in relation to tax aid in the form of a 45 % tax              and J. Azizi, Judges; B. Pastor, Deputy Registrar, has given a
credit in the Provinces of Álava, Viscaya and Guipúzcoa (OJ                 judgment on 23 October 2002, in which it:


title: Case C-184/06: Action brought on  18 April 2006  — Kingdom of Spain v Council of the European Union

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/9

         Action brought on 18 April 2006 — Kingdom of Spain v Council of the European Union
   (Case C-184/06)
   (2006/C 154/19)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

      Defendant: Council of the European Union
   Form of order sought

               —

               annulment of Council Regulation (EC) No 51/2006 of 22 December 2005 (1) fixing for 2006 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required, in so far as it does not allocate specific quotas to the Spanish fishing fleet in the Community waters of the North Sea and the Baltic Sea;

               —

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

         Pleas in law and main arguments
   1.   Infringement of the principle of non-discrimination
   The Kingdom of Spain believes that, in so far as the contested regulation does not allocate to Spain quotas in the Community waters of the North Sea and the Baltic Sea, it infringes the principle of non-discrimination since, upon expiry of the transitional period laid down in the Act of Accession, the other Member States are granted the right of access to those waters and their resources, whereas the Kingdom of Spain is granted only the right of access to waters.
   2.   Incorrect interpretation of the Act of Accession of Spain
   In regulating the transitional period for Spain concerning fisheries, the Act of Accession does not distinguish between access to waters and access to resources. Moreover, the provisions of the Act of Accession must be interpreted in the light of their context and purpose.
   3.   Infringement of Article 20(2) of Regulation No 2371/2002 (2)

   The failure to allocate to Spain quotas which constitute new fishing opportunities distributed for the first time after expiry of the transitional period laid down in the Act of Accession infringes the above provision.

      (1)  OJ L 16 of 20.1.2006, p. 1.

      (2)  Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ L 358 of 31.12.2002, p. 59).


title: Case C-181/14: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 April 2014  — Criminal proceedings against G

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/16

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 April 2014 — Criminal proceedings against G
   (Case C-181/14)
   2014/C 212/17
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Party to the main proceedings

   G

      Question referred

   Is Article 1(2)(b) of Directive 2001/83/EC (1) of 6 November 2001, as amended by Directive 2004/27/EC (2) of 31 March 2004, to be interpreted as meaning that substances or combinations of substances, within the meaning of that provision, which merely modify — that is, do not restore or correct — human physiological functions are to be regarded as medicinal products only if they are of therapeutic benefit or at any rate bring about a modification of bodily functions along positive lines? Consequently, do substances or combinations of substances which are consumed solely for their — intoxication-inducing — psychoactive effects, and in the process also have an effect which at least poses a risk to health, fall under the definition of ‘medicinal product’ contained in the directive?

      (1)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).

      (2)  Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC (OJ 2004 L 136, p. 34).


title: Case C-509/13 P: Appeal brought on 24 September 2013 by Metropolis Inmobiliarias y Restauraciones, SL against the judgment of the General Court (Eighth Chamber) delivered on 11 July 2013 in Case T-197/12 Metropolis Inmobiliarias y Restauraciones, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/11

         Appeal brought on 24 September 2013 by Metropolis Inmobiliarias y Restauraciones, SL against the judgment of the General Court (Eighth Chamber) delivered on 11 July 2013 in Case T-197/12 Metropolis Inmobiliarias y Restauraciones, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-509/13 P)
   2013/C 336/23
   Language of the case: German

      Parties

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

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), MIP Metro Group Intellectual Property GmbH & Co. KG

      Form of order sought

   The appellant claims that the Court of Justice should:

               —

               set aside the judgment of the General Court (Eighth Chamber) of 11 July 2013 in Case T-197/12 and, consequently, reject the application to register Community figurative mark No 7585045 METRO for services in Class 36;

               —

               order the other parties to the proceedings to bear the costs of the proceedings.

      Grounds of appeal and main arguments

   The appellant essentially raises three grounds of appeal against the judgment of the General Court referred to above.
   First, the appellant accuses the General Court of having infringed Article 8(1)(b) of Community trade mark Regulation No 207/2009, (1) as a result of a misinterpretation of the services covered by the mark in conflict and a failure to assess the marks at issue as a whole.
   Second, the General Court has delivered contradictory judgments in cases involving the same parties and in which similar marks were at issue. The judgment in Case T-284/11, which is very closely related to the present case, was not taken into account even though it was submitted in the proceedings in good time and in accordance with the procedure.
   Third, the appellant submits that there were errors in the proceedings before the General Court which adversely affected its interests and which deprived it repeatedly of legal protection. In particular, the oral proceedings were carried out without the applicant, even though it had applied for them to be postponed for an important reason, and did so in accordance with the relevant procedure.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).