title: Case T-179/04: Action brought on 17 May 2004 by Siegfried Krahl against the Commission of the European Communities

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/18

         Action brought on 17 May 2004 by Siegfried Krahl against the Commission of the European Communities
   (Case T-179/04)
   (2004/C 201/39)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 May 2004 by Siegfried Krahl, residing in Zagreb (Croatia), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Annul the Commission's decision to recover the daily subsistence allowances paid to the applicant during the period when temporary accommodation was made available to him;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, an official of the Commission, took up his post in the Commission's delegation to Zagreb on 2 February 2002 and until 19 September 2002 stayed in accommodation made available by the Commission. By the contested decision, the Commission decided to recover the daily subsistence allowances paid to the applicant during that period on the ground that he was not entitled to them, as he had stayed in an apartment provided by the Commission.
   In support of his action, the applicant claims that there has been a breach of Article 10 of Annex VII to the Staff Regulations. He alleges that the Commission made the accommodation available only on a temporary basis, without security of tenure, and that he was therefore not prevented from receiving the daily subsistence allowances. He further claims that there has been an infringement of the principle of legitimate expectations, on the ground that the Commission gave him specific assurances concerning payment of the daily subsistence allowances while he was staying in the apartment in question.


title: Case C-604/11: Reference for a preliminary ruling from the Juzgado de Primera Instancia No 12 de Madrid (Spain) lodged on 28 November 2011 — Genil 48 S.L. and Comercial Hostelera de Grandes Vinos S.L. v Bankinter S.A. and Banco Bilbao Vizcaya Argentaria S.A.

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/15

         Reference for a preliminary ruling from the Juzgado de Primera Instancia No 12 de Madrid (Spain) lodged on 28 November 2011 — Genil 48 S.L. and Comercial Hostelera de Grandes Vinos S.L. v Bankinter S.A. and Banco Bilbao Vizcaya Argentaria S.A.
   (Case C-604/11)
   2012/C 32/28
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia No 12 de Madrid

      Parties to the main proceedings

      Applicants: Genil 48 S.L. and Comercial Hostelera de Grandes Vinos S.L.

      Defendants: Bankinter S.A. and Banco Bilbao Vizcaya Argentaria S.A.

      Questions referred

               1.

               Must the offering to a client of an interest rate swap arrangement to cover the risk of variations of interest rates on other financial products be regarded as investment advice within the meaning of point [(4)] of Article 4(1) of the MiFID Directive (1)?

               2.

               Must omission of the suitability test provided for in Article 19(4) of that directive for a retail investor give rise to fundamental nullity of the contract entered into between the investor and the investment institution?

               3.

               In the event that the service provided in the terms described is not regarded as investment advice, does the mere fact of purchasing a complex financial instrument, into which category falls an interest rate swap arrangement, without the appropriateness test provided for in Article 19(5) of the MiFID Directive being carried out, for reasons imputable to the investment institution, give rise to fundamental nullity of the contract?

               4.

               Does the fact that a credit institution offers a complex financial instrument linked to other financial products constitute sufficient cause to exclude application of the obligations to carry out the suitability and appropriateness tests provided for by Article 19 of the MiFID Directive which the investment institution must undertake in the case of a retail investor?

               5.

               In order to enable the obligations laid down in Article 19(9) of the MiFID Directive to be excluded, is it necessary for the financial product to which the financial instrument offered is linked to be subject to investor-protection standards similar to those laid down in that directive?

      (1)  Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).


title: Case C-464/12: Judgment of the Court (Fifth Chamber) of 13 March 2014 (request for a preliminary ruling from the Østre Landsret (Denmark)) — ATP PensionService A/S v The Skatteministeriet (Sixth VAT Directive  — Exemptions  — Article 13B(d)(3) and (6)  — Special investment funds  — Occupational pension schemes  — Management  — Transactions concerning deposit and current accounts, payments or transfers)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/8

         Judgment of the Court (Fifth Chamber) of 13 March 2014 (request for a preliminary ruling from the Østre Landsret (Denmark)) — ATP PensionService A/S v The Skatteministeriet
   (Case C-464/12) (1)

   ((Sixth VAT Directive - Exemptions - Article 13B(d)(3) and (6) - Special investment funds - Occupational pension schemes - Management - Transactions concerning deposit and current accounts, payments or transfers))
   2014/C 135/08
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: ATP PensionService A/S

      Defendant: The Skatteministeriet

      Re:

   Request for a preliminary ruling — Østre Landsret — Interpretation of Article 13B(d)(3) and (6) of 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) — Exemptions for transactions concerning deposit and current accounts and for the management of special investment funds — Supply of services relating to payments of funds into a pension fund.

      Operative part of the judgment

               1)

               On a proper construction of Article 13B(d)(6) of 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, pension funds such as those at issue in the main proceedings may fall within the scope of that provision if they are funded by the persons to whom the retirement benefit is to be paid, if the funds are invested using a risk-spreading principle, and if the pension customers bear the investment risk. In that regard, it is of little consequence that the contributions are paid by the employer; that the amount paid in is based on collective agreements between labour-market organisations; that there are different ways of paying out the funds invested; that contributions are deductible under income tax law; or that it is possible to add an insurance element which is ancillary to the other services provided;

               2)

               On a proper construction of Article 13B(d)(6) of the Sixth Directive, the term ‘management of special investment funds’ used in that provision covers services by means of which an undertaking establishes the rights of pension customers vis-à-vis pension funds through the opening of accounts in the pension scheme system and the crediting to such accounts of the contributions paid. That term also covers accounting services and account information services such as those listed in Annex II to Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), as amended by Directives 2001/107/EC and 2001/108/EC of the European Parliament and of the Council of 21 January 2002;

               3)

               On a proper construction of Article 13B(d)(3) of the Sixth Directive, the VAT exemption laid down in that provision for transactions concerning payments and transfers covers services by means of which an undertaking establishes the rights of pension customers vis-à-vis pension funds through the creation of accounts for those customers within the pension scheme system and the crediting to those pension customers’ accounts of the contributions paid, and any transactions which are ancillary to those services or which combine with those services to form a single economic supply.

      (1)  OJ C 9, 12.1.2013.


title: Case T-385/08: Judgment of the General Court of 8 July 2010 — Trautwein v OHIM (Representation of a dog) (Community trade mark — Application for a Community figurative mark representing a dog — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/32

         Judgment of the General Court of 8 July 2010 — Trautwein v OHIM (Representation of a dog)
   (Case T-385/08) (1)

   (Community trade mark - Application for a Community figurative mark representing a dog - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))
   2010/C 234/56
   Language of the case: German

      Parties

      Applicant: Nadine Trautwein Rolf Trautwein GbR, Research and Development (Leopoldshöhe, Germany) (represented by: C. Czychowski, A. Nordemann and A.. Dustmann, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: S. Schäffner, Agent)

      Re:

   Action brought against the decision of 30 June 2008 of the First Board of Appeal of OHIM (Case R 1734/2007-1) concerning an application for registration as a Community trade mark of a figurative sign representing a dog

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Nadine Trautwein Rolf Trautwein GbR, Research and Development to pay the costs.

      (1)  OJ C 313, 6.12.2008.


title: Case C-50/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ivrea (Italy)) — Criminal proceedings against Lucky Emegor

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/28

         Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ivrea (Italy)) — Criminal proceedings against Lucky Emegor
   (Case C-50/11) (1)

   2011/C 252/65
   Language of the case: Italian
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 113, 9.4.2011.


title: Removal from the register of T-19/96

text:
7 . 12 . 96             EN |               Official Journal of the European Communities                                        No C 370/ 19
1 . He alleges, first, infringement of the disciplinary                    second paragraph of Article 17 of the Staff Regulations
     procedure and of essential procedural requirements .                  infringes Article 10 (2 ) of the Convention on Human
                                                                           Rights, since it leads to a fundamental prohibition of
     He maintains that the contested decision was taken in                 publication which goes beyond the limitations
     breach of Articles 87 and 88 of the Staff Regulations                 envisaged by the latter provision.
     and of the general principles concerning policy in
     disciplinary matters, in that it was based on a fault —          3 . Finally, Mr Connolly alleges misuse of powers,
     an alleged conflict between the substance of his work                 maintaining that there is precise and consistent evidence
     and Commission policy — which was not raised in the                   to show that, in this case, the decision to remove him
     report of the authority which referred the matter to the              from his post was taken before any assessment of the
     Disciplinary Board.                                                   seriousness of the facts in the context of the disciplinary
                                                                           procedure .
     He also complains of a lack of reasoning in the
     Disciplinary Board's opinion and the appointing
     authority's decision and of infringement of Article 7 of         As regards his claim for compensation, Mr Connolly argues
     Annex IX to the Staff Regulations and of the rights of           that the irregularities of which he complains have caused
     the defence, in that neither the Board nor the                   him material and non-material damage. The material
     appointing authority took the trouble to deal with the           damage consists in his removal from his employment,
     pleas he raised in his defence .                                 resulting in the reduction and then the withdrawal of his
                                                                      remuneration; concomitantly, he has lost any chance of
     He also alleges infringement of the procedural                   obtaining the promotions which his qualifications and his
     provisions in Title VI of the Staff Regulations and              position warranted . The non-material damage consists,
     Articles 3 , 4, 5, 6 and 8 of Annex IX, in that: ( a ) both      first, in his being deprived of his legitimate expectation in
     the Disciplinary Board's opinion and the appointing              the pursuit of his career and, secondly, in the damage to his
     authority's decision were drawn up on the strength of            reputation and professional esteem by reason of the
     facts that were not the subject of a prior hearing; ( b ) no     accusations upheld against him, in respect of which he was
     report was made on the matter as a whole; (c ) the               not even asked to explain himself.
     decision was taken with the active participation of the
     chairman of the Board; and ( d ) the decision was taken          0 ) Case T-203/95 , OJ No C 351 , 30 . 12 . 1995 , p . 16 .
     without even a proper examination of his pleas in                (2 ) Case T-34/96, OJ No C 133 , 4 . 5 . 1996, p. 32.
     defence .
2 . As regards the content of the contested decision, Mr
     Connolly argues, first, that both the Disciplinary Board
     and the appointing authority regarded his receipt of                         Removal from the register of T- 19/96 ( ! )
     royalties for the work in question as contrary to
     Article 1 1 of the Staff Regulations, on the basis of an                                     ( 96/C 370/39 )
     interpretation of that provision whereby any
     remuneration from sources outside the institution is                              (Language of the case: English)
     prohibited without the prior authorization of the
     appointing authority. He considers that that                     By order of 22 October 1996 the President of the Fourth
     interpretation is contrary to Article 1 of Protocol No 1         Chamber of the Court of First Instance of the European
     of 20 March 1952 to the European Convention on                   Communities has ordered the removal from the register of
     Human Rights.                                                    Case T-19/96 : John Carvel and Guardian Newspapers Ltd
                                                                      v. Council of the European Union .
     He also considers that the interpretation given by the
     Disciplinary Board and the appointing authority to the           0 ) OJ No C 133 , 4 . 5 . 1996 .


title: JUDGMENT OF THE COURT of 10 May 1995 in Case C-384/93 (reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven): Alpine Investments BV v. Minister van Financiën (Freedom to provide services - Article 59 of the EEC Treaty - Prohibition of cold calling by telephone for financial services)

text:
24 . 6 . 95              EN                 Official Journal of the European Communities                                 No C 159/3
      the laws of the Member States concerning                              Republic of Germany has failed to fulfil its obligations
      telecommunications terminal equipment, including the                  under Directives 75/442/EEC and 78/319/EEC;
      mutual recognition of their conformity, the Kingdom of
      Belgium has failed to fulfil its obligations under               2 , for the rest, dismisses the application;
      Article 1 89 of the EC Treaty and Article 1 7 of Directive
      9 1 /263 /EEC;
                                                                       3 , orders the parties to bear their own costs.
2 , orders the Kingdom of Belgium to pay the costs.
                                                                       (M   OJ No  C 35 , 9 . 2 . 1993 .
                                                                       (2)  OJ No  L 194 , 25 . 7 . 1975 , p . 39 .
( ! ) OJ No C 275 , 1 . 10 . 1994 .                                    (3 ) OJ No  L 84, 31 . 3 . 1978 , p . 43 .
( 2 ) OJ No L 128 , 23 . 5 . 1991 , p . 1 .                            (4)  OJ No  L 326, 13 . 12 . 1984 , p . 31
                                                                       (5)  OJ No  L 181 , 4 . 7 . 1986 , p . 13 .
                 JUDGMENT OF THE COURT
                          of 10 May 1995                                             JUDGMENT OF THE COURT
in Case C-422/92 : Commission of the European                                                     of 10 May 1995
       Communities v. Federal Republic of Germany (*)                  in Case C-384/93 (reference for a preliminary ruling from
(Failure by a Member State to fulfil its obligations —                 the College van Beroep voor het Bedrijfsleven ): Alpine
 Transposition of the Directives on waste, toxic and                           Investments BV v. Minister van Financiën (M
dangerous waste and the transfrontier shipment of                      (Freedom to provide services — Article 59 of the EEC
                          hazardous waste)                             Treaty — Prohibition of cold calling by telephone for
                            ( 95/C 159/05 )                                                       financial services)
                                                                                ( 95/C 159/06 )
                  (Language of the case: German)
                                                                                (Language of the case: Dutch)
(Provisional translation; the definitive translation will be
            published in the European Court Reports)                   (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
In Case C-422/92 : Commission of the European
Communities (Agents : Rolf Wàgenbaur, assisted by                      In Case C-384/93 : reference to the Court under Article 177
Alexander Bohlke, of the Brussels Bar ) v. Federal Republic
                                                                       of the EEC Treaty from the College van Beroep voor het
of Germany (Agents : Ernst Roder and Ludger-Anselm
                                                                       Bedrijfsleven ( Administrative Court for Trade and Industry)
Versteyl, Rechtsanwalt, Burgwedel ) — application for a
                                                                       for a preliminary ruling in the proceedings pending before
declaration that, by failing to bring into force all the
                                                                       that court between Alpine Investments BV and Minister van
measures needed to transpose Council Directive
                                                                       Financiën — on the interpretation of Article 59 of the EEC
75/442/EEC of 15 July 1975 on waste ( 2), Council Directive
                                                                       Treaty — the Court, composed of G. C. Rodriguez Iglesias,
78/319/EEC of 20 March 1978 on toxic and dangerous
waste ( 3 ), Council Directive 84/63 1 /EEC of 6 December              President, F. A. Schockweiler, P. J. G. Kapteyn and C.
                                                                       Gulmann, Presidents of Chambers, G. F. Mancini, J. C.
1984 on the supervision and control within the European
                                                                       Moitinho de Almeida, J. L. Murray, D. A. O. Edward
Community of the transfrontier shipment of hazardous
waste ( 4 ) and Council Directive 86/279/EEC of 12 June                ( Rapporteur ) and J. -P. Puissochet, Judges; F. G. Jacobs,
                                                                       Advocate-General; L. Hewlett, Administrator, for the
1986 amending Directive 84/631/EEC ( 5 ), the Federal
Republic of Germany has failed to fulfil its obligations               Registrar, gave a judgment on 10 May 1995 , the operative
                                                                       part of which is as follows :
under the EEC Treaty — the Court, composed of G. C.
Rodriguez Iglesias , President, F. A. Schockweiler and C.
Gulmann ( Presidents of Chambers ), G. F. Mancini, J. C.               1 . On a proper construction, Article 59 of the EEC Treaty
Moitinho de Almeida, J. L. Murray, D. A. O. Edward , J. -P.                 covers services which the provider offers by telephone to
Puissochet ( Rapporteur ) and G. Hirsch, Judges ; F. G.                     potential recipients established in other Member States
Jacobs , Advocate-General; D. Louterman-Hubeau,                             and provides without moving from the Member State in
Principal Administrator, for the Registrar, has given a                     which he is established.
judgment on 10 May 1995 , in which it:
                                                                       2 . Rules of a Member State which prohibit providers of
1 , declares that, by excluding certain categories of                       services established in its territory from making
      recyclable waste from the scope of its legislation on the             unsolicited telephone calls to potential clients
      disposal of waste and by failing to draw up, keep up to               established in other Member States in order to offer their
      date, publish or notify to the Commission within the                  services constitute a restriction on freedom to provide
      prescribed period the plans for the disposal of toxic and             services within the meaning of Article 59 of the
      dangerous waste for certain regions, the Federal                      Treaty.
 ---pagebreak--- No C 159/4              EN                 Official Journal of the European Communities                                        24 . 6 . 95
3 . Article 59 does not preclude national rules which, in                             JUDGMENT OF THE COURT
      order to protect investor confidence in national financial                                 ( Sixth Chamber)
      markets, prohibit the practice of making unsolicited
      telephone calls to potential clients resident in other                                    of 18 May 1995
      Member States to offer them services linked to                  in Case C-327/92 (reference for a preliminary ruling from
      investment in commodities futures.                              the Raad van Beroep, The Hague ): Rheinhold & Mahla
                                                                      NV v. Bestuur van de Bedrijfsvereniging voor de
                                                                                Metaalnijverheid ( a )
(!) OJ No C 256 , 21 . 9 . 1993 .
                                                                      (Social security — Duty of a main contractor to pay
                                                                            contributions not paid by a defaulting subcontractor)
                                                                                ( 95/C 159/08 )
                                                                                (Language of the case: Dutch)
                                                                      (Provisional translation; the definitive translation will be
                JUDGMENT OF THE COURT
                                                                                published in the European Court Reports)
                         of 10 May 1995
in Case C-417/93 : European Parliament v. Council of the
                       European Union (*)                             In Case C-327/92 : reference to the Court under Article 177
                                                                      of the EC Treaty by the Raad van Beroep ( Social Security
(Technical assistance to the independent States of the                Court ), The Hague ( Netherlands ), for a preliminary ruling
former Soviet Union and to Mongolia — Consultation of                 in the proceedings pending before that court between
                          the Parliament)                             Rheinhold        &    Mahla         NV       and Bestuur  van     de
                           ( 95/C 159/07 )                            Bedrijfsvereniging voor de Metaalnijverheid ( Board of the
                                                                      Professional and Trade Association for the Metal Industry)
                                                                      on the interpretation of Council Regulation ( EEC )
                 (Language of the case: French)                       No 1408/71 of 14 June 1971 on the application of social
                                                                      security schemes to employed persons, to self-employed
                                                                      persons and to members of their families moving within the
(Provisional translation; the definitive translation will be          Community, as consolidated by Council Regulation ( EEC )
          published in the European Court Reports)                    No 2001 /83 of 2 June 1983 (2 ) and of Article 51 of the EEC
                                                                      Treaty — the Court ( Sixth Chamber ), composed of F. A.
                                                                      Schockweiler, President of the Chamber, P. J. G. Kapteyn,
In Case C-417/93 : European Parliament (Agent: C.                     G. F. Mancini, C. N. Kakouris , and J. L. Murray
Pennera ) v. Council of the European Union ( Agents : A. A.           ( Rapporteur ), Judges; C. Gulmann, Advocate-General;
Dashwood and C. Giorgi ) — application for the annulment              H. A. Riihl, Principal Administrator, for the Registrar, has
of Council Regulation ( Euratom, EEC ) No 2053/93 of                  given a judgment on 18 May 1995 , in which it has
19 July 1993 concerning the provision of technical                    ruled :
assistance to economic reform and recovery in the
independent States of the former Soviet Union and
Mongolia ( 2 ) — the Court, composed of G. C. Rodriguez                I. Council Regulation (EEC) No 1408/71 of 14 June 1971
Iglesias, President, F. A. Schockweiler, P. J. G. Kapteyn, C.                on the application of social security schemes to
Gulmann, P. Jann ( Presidents of Chambers ), G. F. Mancini,                  employed persons, to self-employed persons and to
C. N. Kakouris ( Rapporteur ), J. C. Moitinho de Almeida,                    members of their families moving within the
J. L. Murray, D. A. O. Edward, J. -P. Pui'ssochet, G. Hirsch                 Community, as consolidated by Council Regulation
and L. Sevôn, Judges; P. Léger, Advocate-General; L.                         (EEC) No 2001 /83 of2 June 1 983, applies to legislation
Hewlett, Administrator, for the Registrar, gave a judgment                   which, like the Coordinatiewet Sociale Verzekering,
on 10 May 1995 of which the operative part is as                             coordinates the various branches of social security in a
follows :                                                                    Member State.
                                                                      2 . Provisions which, like Article 16b (5) and Article 16b (8)
1 , the application is dismissed;
                                                                             ofthe Coordinatiewet Sociale Verzekering, make a main
                                                                             contractor liable for social security contributions left
                                                                             unpaid by a defaulting subcontractor do not fall within
2 , the Parliament is ordered to pay the costs.
                                                                             the scope of Regulation (EEC) No 1408/71 .
í 1 ) OJ No C 306 , 12 . 11 . 1993 .                                  í 1 ) OJ No C 228 , 4 . 9 . 1992 .
(2 ) OJ No L 187, 29 . 7. 1993 , p. 1 .                                ( 2 ) OJ No L 230 , 22 . 8 . 1983 , p . 6 .


title: Case C-346/99: Action brought on 17 September 1999 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
20.11.1999              EN                     Official Journal of the European Communities                                         C 333/19
Action brought on 17 September 1999 by the Com-                           Action brought on 17 September 1999 by the Com-
mission of the European Communities against the French                    mission of the European Communities against the Grand
                              Republic                                                          Duchy of Luxembourg
                          (Case C-345/99)                                                           (Case C-346/99)
                                                                                (1999/C 333/41)
                          (1999/C 333/40)
                                                                          An action against the Grand Duchy of Luxembourg was
An action against the French Republic was brought before the              brought before the Court of Justice of the European Communi-
Court of Justice on 17 September 1999 by the Commission of                ties on 17 September 1999 by the Commission of the
the European Communities, represented by Enrico Traversa,                 European Communities, represented by Richard B. Wain-
Legal Adviser, and Hélène Michard, of its Legal Service, acting           wright, Principal Legal Adviser, and Olivier Couvert-Castéra, a
as Agents, with an address for service in Luxembourg at the               national civil servant on secondment to its Legal Service, acting
office of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.             as Agents, with an address for service in Luxembourg at the
                                                                          office of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
The Commission of the European Communities claims that
the Court should:                                                         The Commission of the European Communities claims that
                                                                          the Court should:
— declare that, by applying to vehicles used by taxable                   — declare that, by failing to adopt the laws, regulations and
     persons carrying on the activity of driving instructors the              administrative measures necessary in order to comply
     condition that, in order for such persons to be able to                  with Commission Directive 96/65/EC of 11 October 1996
     exercise their right to deduct the VAT charged on their                  adapting to technical progress for the fourth time Council
     initial acquisition of those vehicles, the vehicles in question          Directive 88/379/EEC on the approximation of the laws,
     must be used exclusively for that activity, the French                   regulations and administrative provisions of the Member
     Republic has failed to fulfil its obligations under                      States relating to the classification, packaging and labelling
     Article 17(2) of the Sixth Council Directive of 17 May                   of dangerous preparations and modifying Directi-
     1977 (1);                                                                ve 91/442/EEC on dangerous preparations the packaging
                                                                              of which must be fitted with child-resistant fastenings (1),
— order the French Republic to pay the costs.                                 or by failing in any event to inform the Commission of the
                                                                              measures adopted, the Grand Duchy of Luxembourg has
                                                                              failed to fulfil its obligations under that directive;
Pleas in law and main arguments
                                                                          — order the Grand Duchy of Luxembourg to pay the costs.
Article 17(6) of the Sixth Directive authorises Member States
to retain all the exclusions relating to the deductibility of tax         Pleas in law and main arguments
provided for under their national laws on the date of entry
into force of that directive. On the date in question, the French         On the expiry of the time-limit for transposition, namely
legislation excluded from deduction all private vehicles, with            31 May 1998, the Grand Duchy of Luxembourg had not yet
the sole exception of vehicles used for public passenger                  implemented the provisions necessary to comply with the
transport.                                                                directive.
With effect from 1 January 1993, the French legislation                   (1) OJ L 265 of 18.10.1996, p. 15.
introduced a right of deduction in respect of vehicles used for
driving instruction purposes. However, that right is restricted
to vehicles used exclusively for that activity.
According to Article 17(2) of the directive, the right to deduct
must arise where the goods concerned are used by the taxable
person for the purposes of his taxable transactions; that right           Action brought on 20 September 1999 by the Com-
cannot be restricted to goods used exclusively for the activity              mission of the European Communities against Ireland
in question.
                                                                                (Case C-347/99)
A Member State may not establish its own criteria for
application of the deduction by limiting the scope of a national                                    (1999/C 333/42)
exclusion of the right to deduct.
                                                                          An action against Ireland was brought before the Court of
                                                                          Justice of the European Communities on 20 September 1999
(1) Council Directive 77/388/EEC of 17.5.1977 (OJ L 145 of                by the Commission of the European Communities, represented
    13.6.1977, p. 1.)                                                     by Marie Wolfcarius, Legal Adviser, acting as agent, with an
                                                                          address for service in Luxembourg at the office of Carlos
                                                                          Gómez de la Cruz, also of the Legal Service of the Commission,
                                                                          Wagner Centre, Kirchberg, Luxembourg.


title: Case C-344/15: Judgment of the Court (Sixth Chamber) of 19 January 2017 (request for a preliminary ruling from the Appeal Commissioners — Ireland) — National Roads Authority v The Revenue Commissioners (Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 13(1), second subparagraph — Activity of managing road infrastructure and making it available on payment of a toll — Activities engaged in by a body governed by public law acting as a public authority — Presence of private operators — Significant distortions of competition — Existence of actual or potential competition)

text:
               6.3.2017

               EN

               Official Journal of the European Union

               C 70/3

         Judgment of the Court (Sixth Chamber) of 19 January 2017 (request for a preliminary ruling from the Appeal Commissioners — Ireland) — National Roads Authority v The Revenue Commissioners
   (Case C-344/15) (1)

   ((Reference for a preliminary ruling - Common system of value added tax - Directive 2006/112/EC - Article 13(1), second subparagraph - Activity of managing road infrastructure and making it available on payment of a toll - Activities engaged in by a body governed by public law acting as a public authority - Presence of private operators - Significant distortions of competition - Existence of actual or potential competition))
   (2017/C 070/04)
   Language of the case: English

      Referring court

   Appeal Commissioners

      Parties to the main proceedings

      Applicant: National Roads Authority

      Defendant: The Revenue Commissioners

      Operative part of the judgment

   The second subparagraph of Article 13(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in a situation such that in the main proceedings, a body governed by public law which carries on an activity consisting in providing access to a road on payment of a toll may not be regarded as competing with private operators who collect tolls on other toll roads pursuant to an agreement with the public law body concerned under national statutory provisions.

      (1)  OJ C 311, 21.9.2015.


title: Case C-248/15 P: Appeal brought on 27 May 2015 by Maxcom Ltd against the judgment of the General Court (Seventh Chamber) delivered on 19 March 2015 in Case T-413/13: City Cycle Industries v Council of the European Union

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/8

         Appeal brought on 27 May 2015 by Maxcom Ltd against the judgment of the General Court (Seventh Chamber) delivered on 19 March 2015 in Case T-413/13: City Cycle Industries v Council of the European Union
   (Case C-248/15 P)
   (2015/C 262/11)
   Language of the case: English

      Parties

      Appellant: Maxcom Ltd (represented by: L. Ruessmann, avocat, J. Beck, Solicitor)

      Other parties to the proceedings: City Cycle Industries, Council of the European Union, European Commission

      Form of order sought

   The Appellant claims that the Court should:

               —

               Declare the Appeal admissible and well-founded;

               —

               Set aside the General Court’s findings with regard to the second part of the first plea in law:

               —

               Dismiss the first plea in law of the Applicant before the General Court in its entirety; and

               —

               Order the Applicant before the General Court to pay the Appellant’s costs for the Appeal and the Intervention before the General Court.

      Pleas in law and main arguments

   In support of the appeal, the Appellant put forward the following arguments:

               —

               The General Court manifestly erred by holding that under Article 13(1) of the Basic Regulation (1) the Council could not conclude that the Applicant before the General Court engaged in transhipment from the facts that (i) the Applicant before the General Court was not a genuine Sri Lankan producer and (ii) did not undertake assembly operations that went beyond the thresholds set out in Article 13(2) of the Basic Regulation.

               —

               In the alternative: The annulment of Regulation 501/2013 (2) as far as it concerns the Applicant before the General Court is not justified even if the Council’s findings on transhipment were incorrect as the Court confirmed that the Applicant before the General Court engaged in assembly operations that did not go beyond the threshold set out in Article 13(2) of the Basic Regulation and also confirmed the existence of all other criteria required for not granting the Applicant before the General Court an exemption from the circumvention measures.

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community

      OJ L 343, p. 51.

      (2)  Council Implementing Regulation (EU) No 501/2013 of 29 May 2013 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) No 990/2011 on imports of bicycles originating in the People’s Republic of China to imports of bicycles consigned from Indonesia, Malaysia, Sri Lanka and Tunisia, whether declared as originating in Indonesia, Malaysia, Sri Lanka and Tunisia or not

      OJ L 153, p. 1.


title: Case T-358/11: Judgment of the General Court of 19 June 2015 — Italy v Commission (EAGGF — Guarantee Section — EAGF and EAFRD — Expenditure excluded from financing — Public storage of sugar — Increase in costs in connection with warehousing rental — Annual inventory of stocks — Physical inspections of storage areas — Legal certainty — Legitimate expectations — Proportionality — Obligation to state reasons — Risk of financial damage to the funds — Effectiveness)

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/13

         Judgment of the General Court of 19 June 2015 — Italy v Commission
   (Case T-358/11) (1)

   ((EAGGF - Guarantee Section - EAGF and EAFRD - Expenditure excluded from financing - Public storage of sugar - Increase in costs in connection with warehousing rental - Annual inventory of stocks - Physical inspections of storage areas - Legal certainty - Legitimate expectations - Proportionality - Obligation to state reasons - Risk of financial damage to the funds - Effectiveness))
   (2015/C 262/17)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, and P. Marchini, avvocato dello Stato)

      Defendant: European Commission (represented by: P. Rossi and D. Nardi, acting as Agents)

      Re:

   Action for annulment of Commission Implementing Decision 2011/244/EU of 15 April 2011 of excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2011 L 102, p. 33), in so far as it excludes certain expenditure incurred by the Italian Republic, and of the Commission’s letters of 3 February 2010 and 3 January 2011 as acts preparatory to that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 252, 27.8.2011.


title: Case T-66/07: Action brought on 2 March 2007 — Agencja Wydawnicza Technopol v OHIM — ( 150 )

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/52

         Action brought on 2 March 2007 — Agencja Wydawnicza Technopol v OHIM — (‘150’)
   (Case T-66/07)
   (2007/C 95/104)
   Language of the case: Polish
   Parties

      Applicant: Agencja Wydawnicza Technopol, Sp. z o. o. (Częstochowa, Republic of Poland) (represented by: D. Rzążewska, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   Form of order sought

               —

               set aside in its entirety the decision delivered on 21 December 2006 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case No R 1035/2006-4;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments

      Community trade mark concerned: word mark ‘150 ’for goods in Class 16

      Decision of the Examiner: registration refused

      Decision of the Board of Appeal: appeal dismissed

      Pleas in law: incorrect application of the provisions of Article 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1), inasmuch as, according to the applicant, the designation ‘150’, in relation to the goods indicated, is neither descriptive nor devoid of distinctive character.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1).


title: Case T-199/07: Action brought on 5 June 2007 — Cementownia Odra v Commission

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/39

         Action brought on 5 June 2007 — Cementownia ‘Odra’ v Commission
   (Case T-199/07)
   (2007/C 170/75)
   Language of the case: Polish
   Parties

      Applicant: Cementownia ‘Odra’ SA (represented by: P.K. Rosiak, legal adviser, and F. Puel, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the Commission's decision of 26 March 2007 concerning the national allocation plan for greenhouse gas emission allowances notified by Poland in accordance with Directive 2003/87/EC of the European Parliament and of the Council;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant seeks the annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for greenhouse gas emission allowances notified by Poland in accordance with Directive 2003/87/EC of the European Parliament and of the Council (1), in which the Commission decided that certain aspects of the Polish National Allocation Plan for CO2 Emission Allowances for 2008-2012, notified to the Commission on 30 June 2006, were not compatible with Articles 9(1) and (3), 10 and 13(2) of and the criteria set out in Annex III to Directive 2003/87/EC. The decision in question reduces the carbon dioxide emission limit in 2008-2012 by 26.7 % compared to the limit proposed by Poland in the national allocation plan for emission allowances notified to the Commission.
   The pleas in law and main arguments put forward by the applicant are the same as those of the applicant in Case T-195/07.

      (1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32).


title: Case T-94/13 P: Appeal brought on 17 February 2013 by Ioannis Ntouvas against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-107/11 Ntouvas v ECDC

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/39

         Appeal brought on 17 February 2013 by Ioannis Ntouvas against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-107/11 Ntouvas v ECDC
   (Case T-94/13 P)
   2013/C 114/62
   Language of the case: English

      Parties

      Appellant: Ioannis Ntouvas (Agios Stefanos, Greece) (represented by: V. Kolias, lawyer)

      Other party to the proceedings: European Centre for Disease Prevention and Control (Stockholm, Sweden)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               Set aside the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-107/11 Ntouvas v ECDC dismissing the action for annulment of the appellant’s appraisal report for 2010 and ordering him to pay all costs;

               —

               Annul the decision contested at first instance; and

               —

               Order the defendant to pay all costs of the proceedings at first instance and on appeal.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on fourteen pleas in law.

               1.

               First plea in law, alleging infringement of a rule of law relating to burden, and administration, of proof, insofar as the Civil Service Tribunal granted the respondent’s request for an extension of the time-limit for lodging its defence at first instance although the respondent had not provided evidence of the circumstances it claimed justified such extension.

               2.

               Second plea in law, alleging substantial error in the finding of fact, insofar as the Civil Service Tribunal found that the date of service, on the respondent, of the application at first instance was 7 November 2011 and not 4 November 2011.

               3.

               Third plea in law, alleging erroneous appraisal of fact, insofar as the Civil Service Tribunal erroneously read, and appraised, the documents in the file disproving the arguments advanced by the respondent in support of its request for an extension of the time-limit for lodging its defence at first instance.

               4.

               Fourth plea in law, alleging erroneous legal classification of fact, insofar as the Civil Service Tribunal erroneously considered as ‘exceptional’ the circumstances which the respondent invoked when requesting the extension of the time-limit for lodging its defence at first instance.

               5.

               Fifth plea in law, alleging error in the finding, subsidiarily in the legal classification of fact, insofar as the Civil Service Tribunal erroneously found that the appellant had not applied for a judgment by default, subsidiarily that his statements did not constitute an application for a judgment by default.

               6.

               Sixth plea in law, alleging erroneous appraisal of documents on the case-file, insofar as the Civil Service Tribunal held that two positions in the respondent’s services were significantly different from each other.

               7.

               Seventh plea in law, alleging error in the establishment of the burden of proof, insofar as the Civil Service Tribunal rejected, for lack of evidence, the appellant’s plea that at least one of the members of the respondent’s Joint Committee for Appraisals was in conflict of interest, although said evidence consisted in documents identified in the application at first instance and readily available to the respondent; in the alternative, the Tribunal failed to observe its duty, as an administrative court of law adjudicating an employment dispute, of ordering the necessary measures of organisation of procedure in order to obtain said documents. Moreover, the Tribunal misread the legal basis of the appellant’s plea and misinterpreted Article 9(6) of the Implementing rule No 20 on Appraisals (‘the Implementing rule’), adopted by the director of the ECDC on 17 April 2009.

               8.

               Eighth plea in law, alleging misinterpretation of, and failure to examine, a plea in law alleging the lack of rules of procedure for the ECDC Joint Committee for Appraisals.

               9.

               Ninth plea in law, alleging distortion of evidence, subsidiarily legal classification of fact, insofar as the Civil Service Tribunal considered unsubstantiated the appellant’s plea that the ECDC Joint Committee had failed to verify the elements it was obliged to verify under Article 9(4) of the Implementing rule.

               10.

               Tenth plea in law, alleging erroneous appraisal, subsidiarily legal classification, of fact, insofar as the Civil Service Tribunal considered sufficient the reasoning of the opinion of the ECDC Joint Committee for Appraisals.

               11.

               Eleventh plea in law, alleging misinterpretation of a plea in law, and error in the legal classification of fact, insofar as the Civil Service Tribunal misinterpreted the appellant’s plea of insufficient reasoning of the opinion of the respondent’s Joint Committee for Appraisals as being one of manifest error of assessment; and viewed said reasoning as sufficient.

               12.

               Twelfth plea in law, alleging erroneous appraisal of fact, insofar as the Civil Service Tribunal held that the contested appraisal report was not vitiated by a manifest error of assessment as to the appellant’s efficiency in terms of workload.

               13.

               Thirteenth plea in law, alleging erroneous legal classification of fact, insofar as the Civil Service Tribunal considered proportional the criticism in the contested appraisal report, even though the respondent had not, during the appraisal period, brought to the appellant’s notice the supposed problems in his conduct.

               14.

               Fourteenth plea in law, alleging erroneous appraisal of fact, insofar as the Civil Service Tribunal viewed the appellant’s workload as being less significant than it actually was.


title: Case C-333/06: Judgment of the Court (Sixth Chamber) of 14 June 2007 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Regulation (EC) No 261/2004 — Air transport — Denied boarding and cancellation or long delays of flights — Compensation and assistance to passengers — Adoption of sanctions)

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/14

         Judgment of the Court (Sixth Chamber) of 14 June 2007 — Commission of the European Communities v Kingdom of Sweden
   (Case C-333/06) (1)

   (Failure of a Member State to fulfil obligations - Regulation (EC) No 261/2004 - Air transport - Denied boarding and cancellation or long delays of flights - Compensation and assistance to passengers - Adoption of sanctions)
   (2007/C 183/23)
   Language of the case: Swedish
   Parties

      Applicant: Commission of the European Communities (represented by: R. Vidal Puig and K. Simonsson, Agents)

      Defendant: Kingdom of Sweden (represented by: A. Kruse, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to take the measures necessary to comply with Article 16 of 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 delays of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Laying down of effective, proportionate and dissuasive sanctions
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to lay down the sanctions for infringements of the provisions of 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 delays of flights, and repealing Regulation (EEC) No 295/91, the Kingdom of Sweden has failed to fulfil its obligations under Article 16 of that directive;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Kingdom of Sweden to pay the costs.

      (1)  OJ C 224, 16.9.2006.


title: Case C-155/14 P: Appeal brought on 3 April 2014 by Evonik Degussa GmbH, AlzChem AG, formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH against the judgment of the General Court (Third Chamber) delivered on 23 January 2014 in Case T-391/09 Evonik Degussa GmbH, AlzChem AG, formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH v European Commission

text:
               16.6.2014

               EN

               Official Journal of the European Union

               C 184/15

         Appeal brought on 3 April 2014 by Evonik Degussa GmbH, AlzChem AG, formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH against the judgment of the General Court (Third Chamber) delivered on 23 January 2014 in Case T-391/09 Evonik Degussa GmbH, AlzChem AG, formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH v European Commission
   (Case C-155/14 P)
   2014/C 184/19
   Language of the case: German

      Parties

      Appellants: Evonik Degussa GmbH, AlzChem AG, formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH (represented by: C. Steinle, Rechtsanwalt, I. Bodenstein, Rechtsanwältin)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               1.

               set aside the judgment of the General Court (Third Chamber) of 23 January 2014 (Case T-391/09), in so far as it affects the appellants;

               2.

               annul Commission Decision C(2009) 5791 final of 22 July 2009 (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it affects the appellants;
               in the alternative, reduce the fine imposed on the appellants by Article 2(g) and (h) of that decision;
               in the alternative, in the event that the foregoing claim is dismissed, amend Article 2(g) and (h) of the decision, so that SKW Stahl-Metallurgie GmbH is jointly and severally liable for the full amount of the fine imposed on the appellants; the appellants understand this alternative claim in the way the General Court has understood it in paragraphs 264 and 265 of the judgment, namely as an alternative claim for an increase in the proportion of the fine imposed on the appellants, which is considered to be paid when SKW pays the fine imposed on them by the Commission.

               3.

               in the alternative to the second head of claim, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law;

               4.

               in any event, order the Commission to pay the appellants’ costs of the proceedings before the General Court and the Court of Justice.

      Grounds of appeal and main arguments

   The appeal is against the judgment of the General Court of 23 January 2014 in Case T-391/09, in so far as it affects the appellants. In the judgment, the General Court partially upheld and partially dismissed the appellants’ actions brought against Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries).
   The appellants raise five grounds of appeal:

               1.

               By the first ground of appeal, the appellants claim that the General Court attributed to them the anti-competitive conduct of SKW Stahl-Technik GmbH & Co. KG (‘SKW’) in breach of the range of the attribution of liability under Article 81 EC (now Article 101 TFEU), the principle of personal responsibility, the presumption of innocence and the principle that liability presupposes fault by rejecting the rebuttal of the presumption of decisive influence. Against express specific instructions of the appellants, SKW unilaterally participated in a cartel from April 2004 in a power vacuum before the imminent sale of that company to a third party. In that exceptional special case, which can be clearly differentiated from the general body of cases dealt with so far, the General Court wrongly denied fairness in individual cases.

               2.

               By the second ground of appeal, the appellants claim that, in breach of the rights of defence and the duty to state reasons, the General Court rejected their argument that the Commission decision should have been declared void because the proportions of liability in the internal relationship of the joint and several debtors were not determined in conformity with the judgment since delivered by the General Court in Joined Cases T-122/07 to T-124/07 Siemens Österreich [2011] ECR II-793. The argument in the action was neither late nor insufficient.

               3.

               With reference to the amount of the fine, the appellants allege by their third ground of appeal that the General Court infringed the principle of equal treatment when it did not — as in the parallel case Gigaset — reduce the fines against the appellants in light of the errors in calculating the fine, in particular the failure to take into account an entrance fee and the incorrect taking into account of a leniency reduction in SKW’s fine.

               4.

               The appellants welcome the fact that, when setting their new fine, the General Court also reassessed the proportion of the fine ‘which will be considered to be paid when SKW makes payments in connection with the fine imposed on them by the contested decisions’ (operative part of the judgment, point 2, first indent). By the fourth alternative ground of appeal, the appellants claim, however, that, in breach of the principle of legal certainty, nulla poena sina lege certa and the duty to state reasons in the reassessment, the General Court did not expressly determine the double repayment effect of a payment from SKW for both ARQUES Industries AG (‘Arques’) (now Gigaset AG (‘Gigaset’)) and for the appellants.

               5.

               By the fifth alternative ground of appeal, the appellants claim that, in reassessing the fines, the General Court, in breach of the principles for setting joint and several fines (Article 81 EC, Article 23 of Regulation No 1/2003) (1) in particular, deducted the leniency reduction in the proportion which is considered to be paid by a performance by SKW. The General Court thereby allowed for a leniency reduction in that proportion at the expense of the appellants although SKW did not cooperate with the Commission in accordance with the Leniency Notice.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty; OJ 2003 L 1, p. 1.


title: Case F-16/05: Judgment of the Civil Service Tribunal (Plenary session) of  26 April 2006  — Falcione v Commission (Officials — Appointment — Classification in the higher career grade — Articles 5 and 31(2) of the Staff Regulations — Costs — Article 7(5) of Annex I to the Statute of the Court of Justice and Article 88 of the Rules of Procedure of the Court of First Instance)

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/36

         Judgment of the Civil Service Tribunal (Plenary session) of 26 April 2006 — Falcione v Commission
   (Case F-16/05) (1)

   (Officials - Appointment - Classification in the higher career grade - Articles 5 and 31(2) of the Staff Regulations - Costs - Article 7(5) of Annex I to the Statute of the Court of Justice and Article 88 of the Rules of Procedure of the Court of First Instance)
   (2006/C 143/69)
   Language of the case: French
   Parties

      Applicant: Nicola Falcione (Brussels, Belgium) (represented by: S. Orlandi, X. Martin, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Commission of the European Communities (represented by: V. Joris and K. Hermann, acting as Agents)
   Re:
   Annulment of the decision of 24 March 2004 by which the Commission of the European Communities fixed the applicant's definitive grade, after recruitment, at grade A5, step 4
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the application;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 143, 11.6.2005 (case initially registered before the Court of First Instance of the European Communities under number T-132/05 and transferred to the Civil Service Tribunal of the European Union by Order of 15.12.2005).


title: Case C-472/11: Judgment of the Court (First Chamber) of 21 February 2013 (request for a preliminary ruling from the Fővárosi Törvényszék (formerly the Fővárosi Bíróság) — Hungary) — Banif Plus Bank Zrt. v Csaba Csipai, Viktória Csipai (Directive 93/13/EEC — Unfair terms in consumer contracts — Examination by the national court, of its own motion, as to whether a term is unfair — Obligation on the national court, once it has found, of its own motion, that a term is unfair, to invite the parties to submit their observations before drawing conclusions from that finding — Contractual terms to be taken into account in the assessment of that unfairness)

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/14

         Judgment of the Court (First Chamber) of 21 February 2013 (request for a preliminary ruling from the Fővárosi Törvényszék (formerly the Fővárosi Bíróság) — Hungary) — Banif Plus Bank Zrt. v Csaba Csipai, Viktória Csipai
   (Case C-472/11) (1)

   (Directive 93/13/EEC - Unfair terms in consumer contracts - Examination by the national court, of its own motion, as to whether a term is unfair - Obligation on the national court, once it has found, of its own motion, that a term is unfair, to invite the parties to submit their observations before drawing conclusions from that finding - Contractual terms to be taken into account in the assessment of that unfairness)
   2013/C 114/19
   Language of the case: Hungarian

      Referring court

   Fővárosi Törvényszék (formerly the Fővárosi Bíróság)

      Parties to the main proceedings

      Appellant: Banif Plus Bank Zrt.

      Respondents: Csaba Csipai, Viktória Csipai

      Re:

   Request for a preliminary ruling — Fővárosi Bíróság — Interpretation of Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — National legislation providing that a national court is limited in its examination of the unfair nature of standard contract terms where the parties do not expressly request it to declare that a term is unfair — Option for the national court which finds a standard term of a contract before it to be unfair, in the absence of an express request to that effect, to ask the parties to the dispute to make a statement relating to that contract term so that the question of the invalidity of the contract on that ground may be examined

      Operative part of the judgment

               1.

               Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the national court which has found of its own motion that a contractual term is unfair is not obliged, in order to be able to draw the consequences arising from that finding, to wait for the consumer, who has been informed of his rights, to submit a statement requesting that that term be declared invalid. However, the principle of audi alteram partem, as a general rule, requires the national court which has found of its own motion that a contractual term is unfair to inform the parties to the dispute of that fact and to invite each of them to set out its views on that matter, with the opportunity to challenge the views of the other party, in accordance with the formal requirements laid down in that regard by the national rules of procedure.

               2.

               The national court must, in order to determine whether the contractual term on which the claim brought before it is based may be unfair, take account of all of the other terms of the contract.

      (1)  OJ C 370, 17.12.2012.


title: Case C-680/13: Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 20 December 2013 — Condor Flugdienst GmbH v Andreas Plakolm

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/14

         Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 20 December 2013 — Condor Flugdienst GmbH v Andreas Plakolm
   (Case C-680/13)
   2014/C 85/26
   Language of the case: German

      Referring court

   Landgericht Frankfurt am Main

      Parties to the main proceedings

      Applicant: Condor Flugdienst GmbH

      Defendant: Andreas Plakolm

      Question referred

   Is the expression cancellation, which is defined in Article 2(l) of Regulation No 261/2004, (1) to be interpreted as meaning that in a situation such as that in the present case it also applies where, although the flight departed under the original flight number, it was not a non-stop flight as originally planned but involved a stopover scheduled before departure, and another aircraft and airline company were used in a sub-charter arrangement?

      (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 T-199/16: Order of the General Court of 20 March 2017 — Kohrener Landmolkerei and DHG v Commission (Action for annulment — System of traditional specialities guaranteed — Regulation (EU) No 1151/2012 — Implementing Regulation (EU) 2016/304 — Time-limit for the forwarding of the notice of opposition to the Commission by the competent authorities — Action manifestly lacking any foundation in law)

text:
               6.6.2017

               EN

               Official Journal of the European Union

               C 178/20

         Order of the General Court of 20 March 2017 — Kohrener Landmolkerei and DHG v Commission
   (Case T-199/16) (1)

   ((Action for annulment - System of traditional specialities guaranteed - Regulation (EU) No 1151/2012 - Implementing Regulation (EU) 2016/304 - Time-limit for the forwarding of the notice of opposition to the Commission by the competent authorities - Action manifestly lacking any foundation in law))
   (2017/C 178/27)
   Language of the case: German

      Parties

      Applicants: Kohrener Landmolkerei GmbH (Penig, Germany) and DHG Deutsche Heumilchgesellschaft mbH (Frohburg, Germany) (represented by: A. Wagner, lawyer)

      Defendant: European Commission (represented by: initially D. Triantafyllou, J. Guillem Carrau and J. Herkommer, and subsequently D. Triantafyllou and J. Herkommer, acting as Agents)

      Re:

   Action pursuant to Article 263 TFEU seeking annulment of Commission Implementing Regulation (EU) 2016/304 of 2 March 2016 entering a name in the register of traditional specialities guaranteed (Heumilch/Haymilk/Latte fieno/Lait de foin/Leche de heno (TSG)) (OJ 2016 L 58, p. 28).

      Operative part of the order

               1.

               The action is dismissed as manifestly lacking any foundation in law.

               2.

               Kohrener Landmolkerei GmbH and DHG Deutsche Heumilchgesellschaft mbH shall bear their own costs and pay those incurred by the European Commission.

      (1)  OJ C 232, 27.6.2016.


title: Joined Cases T-90/07 P and T-99/07 P: Judgment of the Court of First Instance of 18 December 2008 — Belgium and Commission v Genette (Appeal — Staff cases — Officials — Pensions — Transfer of national pension rights — Decision refusing the withdrawal of a transfer application and the introduction of a new transfer application — Jurisdiction of the Civil Service Tribunal — Alteration of the subject-matter of the proceedings — Inadmissibility of the action at first instance)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/45

         Judgment of the Court of First Instance of 18 December 2008 — Belgium and Commission v Genette
   (Joined Cases T-90/07 P and T-99/07 P) (1)

   (Appeal - Staff cases - Officials - Pensions - Transfer of national pension rights - Decision refusing the withdrawal of a transfer application and the introduction of a new transfer application - Jurisdiction of the Civil Service Tribunal - Alteration of the subject-matter of the proceedings - Inadmissibility of the action at first instance)
   (2009/C 44/78)
   Language of the case: French
   Parties

      Appellants: Kingdom of Belgium (represented by: L. Van den Broeck and C. Pochet, Agents, assisted by L. Markey, lawyer) and Commission of the European Communities (represented by V. Joris and D. Martin, Agents)

      Respondent: Emmanuel Genette (Gorze, France) (represented by: M.-A. Lucas, lawyer)
   Re:
   Two appeals against the judgment of 16 January 2007 of the European Union Civil Service Tribunal (First Chamber) in Case F-92/05 Genette v Commission (not yet published in the ECR) seeking to have that judgment set aide
   Operative part of the judgment
   The Court:

               1.

               Sets aside the judgment of 16 January 2007 of the European Union Civil Service Tribunal in Case F-92/05 Genette v Commission;

               2.

               Dismisses as inadmissible Mr. Genette's action before the Civil Service Tribunal in Case F-92/05;

               3.

               Orders Mr Genette to bear his own costs of the proceedings before the Civil Service Tribunal and the Court of First Instance;

               4.

               Orders the Commission to bear its own costs of the proceedings before the Civil Service Tribunal and the Court of First Instance;

               5.

               Orders the Kingdom of Belgium to bear its own costs of the proceedings before the Civil Service Tribunal and the Court of First Instance.

      (1)  OJ C 117, 29.5.2007.


title: Cases F-44/06 and F-94/06: Judgment of the Civil Service Tribunal (First Chamber) of 17 April 2007 — C and F v Commission (Officials — Article 78 of the Staff Regulations — Invalidity pension — Compliance with a judgment of the Court of First Instance — Action for annulment and compensation)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/40

         Judgment of the Civil Service Tribunal (First Chamber) of 17 April 2007 — C and F v Commission
   (Cases F-44/06 and F-94/06) (1)

   (Officials - Article 78 of the Staff Regulations - Invalidity pension - Compliance with a judgment of the Court of First Instance - Action for annulment and compensation)
   (2007/C 96/82)
   Language of the cases: French
   Parties

      Applicants: C and F (Brussels, Belgium) (represented by: J. van Rossum, S. Orlandi and J.-N. Louis, lawyers)

      Defendant: Commission of the European Communities (represented by: J. Currall, Agent)
   Re:
   In Case F-44/06:
   First, annulment of the decision of 13 June 2005 refusing to adopt, with respect to the applicant, any measure to comply with the judgment of the Court of First Instance of the European Communities in Case T-376/02, brought by the same applicant against a decision of 14 January 2002 and, second, annulment of the decision of 23 February 2006 compulsorily retiring the applicant with entitlement to an invalidity allowance to be determined in accordance with the second paragraph of Article 78 of the Staff Regulations, with retroactive effect from 1 February 2002.
   In Case F-94/06:
   First, annulment of the decision of 23 February 2006 compulsorily retiring the applicant with entitlement to an invalidity allowance to be determined in accordance with the second paragraph of Article 78 of the Staff Regulations, with retroactive effect from 1 February 2002 and, second, an application for damages.
   Operative part of the judgment

               1.

               The Commission of the European Communities is ordered to pay the applicant compensation of EUR 2 000 in respect of non-material damage sustained by him.

               2.

               The remainder of the applications is dismissed.

               3.

               The Commission of the European Communities is ordered to bear its own costs and to pay two thirds of the applicant's costs in Cases F-44/06 C v Commission and F-94/06 F v Commission.

      (1)  F-44/06: OJ C 154, 1.7.2006, p. 25 and F-94/06: OJ C 237, 30.9.2006, p. 22.


title: Case C-343/07: Reference for a preliminary ruling from the Corte d'Appello di Torino (Italy) lodged on 25 July 2007 — Bavaria N.V. and Bavaria Italia Srl v Bayerischer Brauerbund e.V

text:
               20.10.2007

               EN

               Official Journal of the European Union

               C 247/5

         Reference for a preliminary ruling from the Corte d'Appello di Torino (Italy) lodged on 25 July 2007 — Bavaria N.V. and Bavaria Italia Srl v Bayerischer Brauerbund e.V
   (Case C-343/07)
   (2007/C 247/08)
   Language of the case: Italian
   Referring court
   Corte d'Appello di Torino
   Parties to the main proceedings

      Applicants: Bavaria N.V. and Bavaria Italia Srl

      Defendant: Bayerischer Brauerbund e.V
   Questions referred

               1.

               Is Council Regulation (EC) No 1347/2001 (1) of 28 June 2001 invalid, possibly as a consequence of the invalidity of other acts, in light of the following:
               Breach of general principles

                           —

                           the invalidity of Article 1(1) of Regulation (EEC) No 2081/1992 (2), read in conjunction with Annex I thereto, in so far as it permits the registration of geographical indications relating to ‘beer’, which is an alcoholic beverage listed (wrongly) in that Annex as one of the ‘foodstuffs’ referred to in Article 1(1), but which is not one of the ‘agricultural products’ listed in Annex I to the EC Treaty and referred to in Article 32 (formerly Article 38) and Article 37 (formerly Article 43) thereof, which the Council took as the legal basis for its competence to adopt Regulation (EEC) No 2081/1992;

                           —

                           the invalidity of Article 17 of Regulation (EEC) No 2081/1992 in so far as it provides for an accelerated registration procedure under which the rights of interested parties are substantially limited and impaired, in so far as it makes no provision for a right of opposition, in clear breach of the principles of transparency and legal certainty, as is evident in particular from the complexity of the procedure for registering ‘Bayerisches Bier’, the protected geographical indication at issue, which took more than seven years from 1994 to 2001, and from the express acknowledgment to that effect in Recital (13) in the preamble to Regulation (EC) No 692/2003 (3), Article 15 of which repealed — for those reasons — Article 17 of Regulation (EEC) No 2081/1992;

                     Failure to comply with procedural requirements

                           —

                           the failure of the indication ‘Bayerisches Bier’ to satisfy the conditions laid down in Article 17 of Regulation (EEC) No 2081/1992 for eligibility for registration in accordance with the simplified procedure provided for therein, in that, at the time when the application for registration was submitted, that indication was not a ‘legally protected name’ in Germany, nor had it been ‘established by usage’ there;

                           —

                           the fact that the question whether the pre-conditions had been met for registration of the indication ‘Bayerisches Bier’ was not given due consideration either by the German Government before submitting the application, or by the Commission itself after receiving that application, contrary to the requirements established by the case-law of the Court of Justice (Case C-269/99 Carl Kühne and Others [2001] ECR I 9517);

                           —

                           the fact that the application for registration of the indication ‘Bayerisches Bier’ was not submitted in good time by the German Government in accordance with Article 17(1) of Regulation (EEC) No 2081/92 (6 months after the entry into force of the Regulation, which took place on 24 July 1993), it being also the case that the subject-matter of the application initially submitted by the applicant company envisaged eight varying indications — with a reservation as to the possibility of later variations of an unspecified nature — which did not coalesce to form the current single indication ‘Bayerisches Bier’ until well after the deadline on 24 January 1994;

                     Failure to comply with substantive requirements

                           —

                           failure of the indication ‘Bayerisches Bier’ to satisfy the substantive requirements laid down in Article 2(2)(b) of Regulation (EEC) No 2081/1992 for registration as a protected geographical indication, given the generic nature of that indication, which has historically designated beer produced in accordance with a particular method of production which originated during the nineteenth century in Bavaria, whence it spread throughout Europe and the rest of the world (the method known as ‘the Bavarian method’, based on bottom fermentation), and which even today in a number of European languages (Danish, Swedish, Finnish) is used as a generic term for beer and which, in any case, can at most identify, solely and generically, from among the numerous varieties of beer in existence any type of ‘beer produced in the German Land of Bavaria’, there being no ‘direct link’ (Case C-312/98 Warsteiner [2000] ECR I 9187) between a specific quality, reputation or other characteristic of the product (beer) and its specific geographical origin (Bavaria), nor evidence that this is one of the ‘exceptional cases’ required under Article 2(2)(b) of Regulation (EEC) No 2081/1992 in order for it to be permissible to register a geographical indication containing the name of a country;

                           —

                           the fact that, as emerges from the preceding paragraph, the indication ‘Bayerisches Bier’ is a ‘generic’ indication, and as such ineligible for registration pursuant to Articles 3(1) and 17(2) of Regulation (EEC) 2081/1992;

                           —

                           the fact that registration of the indication ‘Bayerisches Bier’ should have been refused pursuant to Article 14(3) of Regulation (EEC) 2081/1992, since, in the light of ‘the reputation and renown’ of the Bavaria marks and ‘the length of time for which [they] have been used’, registration was ‘liable to mislead the consumer as to the true identity of the product’?

               2.

               In the alternative, if Question 1 is held inadmissible or unfounded, should Council Regulation (EC) No 1347/2001 of 28 June 2001 be construed as meaning that recognition of the protected geographical indication ‘Bayerisches Bier’ is to have no adverse effects on the validity or usability of pre-existing marks of third parties in which the word ‘Bavaria’ appears?

      (1)  OJ 2001 L 182, p. 3.

      (2)  OJ 1992 L 208, p. 1.

      (3)  OJ 2003 L 99, p. 1.


title: Case T-411/08: Action brought on 30 September 2008 — Artisjus Magyar Szerzői Jogvédő Iroda Egyesület v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/54

         Action brought on 30 September 2008 — Artisjus Magyar Szerzői Jogvédő Iroda Egyesület v Commission
   (Case T-411/08)
   (2008/C 301/91)
   Language of the case: English
   Parties

      Applicant: Artisjus Magyar Szerzői Jogvédő Iroda Egyesület (Budapest, Hungary) (represented by: Z. Hegymegi-Barakonyi and P. Vörös, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Articles 3 and 4(2) of the decision in so far as they relate to the applicant as well as Article 4(3) of the decision in so far as it refers to Article 3;

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   By means of its application, the applicant seeks partial annulment of Commission Decision C(2008) 3435 final of 16 July 2008 (Case COMP/C2/38.698 — CISAC) determining that the EEA CISAC (1) members engaged in a concerted practice in violation of Article 81 EC and Article 53 EEA, by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society.
   The applicant seeks the annulment of Articles 3 and 4(2) and (3) of the contested decision which relate to three specific forms of exploitation (internet, satellite transmission and cable retransmission) in so far as they hold the applicant liable for an Article 81 EC infringement by coordinating with other CISAC members the territorial delineation clauses of reciprocal representation agreements in a way which limited a licence to the domestic territory of each collective rights management societies (‘CMRS’).
   The applicant challenges the contested decision on the basis of four grounds, namely, lack of competence, infringement of an essential procedural requirement, the infringement of the EC Treaty and the misuse of powers by the Commission.
   In support of its application, the applicant submits the following pleas in law:
   First, according to the applicant, the Commission violated the applicant's rights of defence by adopting the contested decision and fundamentally departing from its position in the Statement of Objections.
   Second, the applicant claims that the decision infringes Article 253 EC, as it lacks proper reasoning and fails to identify the starting point of the alleged concerted practice.
   Third, the applicant contends that the decision violates Article 81 EC and Article 2 of Regulation (EC) No 1/2003 (2) as the Commission did not produce sufficient evidence to establish the existence of a concerted practice to the requisite legal standard and consequently failed to meet the burden of proof.
   Fourth, it is submitted that the decision violates Article 86(2) EC, as the applicant is an undertaking entrusted with the operation of services of general economic interest and the application of EC competition law as set out in the contested decision obstructs the performance of the particular tasks assigned to it.
   Moreover, according to the applicant, the Commission misused its powers under Article 81 EC by evading a procedure specifically prescribed by the EC Treaty for dealing with the circumstances of the case. Further, the applicant puts forward that the decision violates Article 151(4) EC as it does not respect cultural diversity. Finally, it is submitted that the decision violates the principle of legal certainty in so far as it requires a course of conduct which the Commission failed to define.

      (1)  International Confederation of Societies of Authors and Composers (‘CISAC’).

      (2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 EC (OJ 2003 L 1, p. 1).


title: Case C-222/07: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 3 May 2007 — UTECA (Unión de Televisiones Comerciales Asociadas) v Federación de Asociaciones de Productores Audiovisuales, Ente Público RTVE y Administración del Estado

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/14

         Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 3 May 2007 — UTECA (Unión de Televisiones Comerciales Asociadas) v Federación de Asociaciones de Productores Audiovisuales, Ente Público RTVE y Administración del Estado
   (Case C-222/07)
   (2007/C 155/26)
   Language of the case: Spanish
   Referring court
   Tribunal Supremo
   Parties to the main proceedings

      Applicant: UTECA (Unión de Televisiones Comerciales Asociadas)

      Defendants: Federación de Asociaciones de Productores Audiovisuales, Ente Público RTVE y Administración del Estado
   Questions referred

               1.

               Does Article 3 of Council Directive 89/552/EEC (1) of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC (2) of the European Parliament and of the Council of 30 June 1997, permit Member States to impose on television operators the obligation to earmark a percentage of their operating revenue for the pre-funding of European cinematographic films and films made for television?

               2.

               If the reply to the previous question is affirmative, is a national measure which, in addition to laying down the pre-funding obligation referred to above, reserves 60 % of that compulsory funding for original Spanish-language works compatible with that directive and with Article 12 EC, taken in conjunction with the other special provisions to which that article refers?

               3.

               Does an obligation imposed by a national measure on television operators to the effect that the latter must earmark a percentage of their operating revenue for the pre-funding of cinematographic films, where 60 % of that amount must be earmarked specifically for original Spanish-language films the majority of which are produced by the Spanish film industry, amount to State aid in favour of that industry within the meaning of Article 87 EC?

      (1)  OJ L 298, p. 23.

      (2)  OJ L 202, p. 60.


title: Case C-109/02: Action brought on 22 March 2002 by the Commission of the European Communities against the Federal Republic of Germany

text:
1.6.2002                EN                   Official Journal of the European Communities                                          C 131/7
The Commission claims that the Court should:                            The applicant claims that the Court should:
1.     Declare that, by failing to adopt the laws, regulations
       and administrative provisions necessary to comply with           1.    declare that, by applying a reduced rate of turnover tax
       Council Directive 1999/32/EC (1) of 26 April 1999                      to both services provided by musical ensembles which
       relating to a reduction in the sulphur content of certain              put on their own public performances or do so through
       liquid fuels and amending Directive 93/12/EEC, or in any               an events organiser and services provided by soloists
       case by failing to notify the Commission of them, the                  putting on their own public performances, whilst the
       Federal Republic of Germany has failed to fulfil its                   services of soloists who work for an organiser are subject
       obligations under Article 10 of that directive;                        to the normal rate, the Federal Republic of Germany has
                                                                              failed to fulfil its obligations under the third subparagraph
                                                                              of Article 12(3)(a) of the Sixth Council Directive 77/388/
2.     Order the Federal Republic of Germany to pay the costs.                EEC (1) 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;
Pleas in law and main arguments
                                                                        2.    order the Federal Republic of Germany to pay the costs.
It follows from the binding nature of directives under the third
paragraph of Article 249 EC and from the first paragraph of
Article 10 EC that the Member States to which a directive is
addressed are obliged to transpose its provisions into national
law in such a way that they become fully effective in practice
from the date of expiry of the period for transposition. The
period prescribed by Article 10 of the directive expired on
1 July 2000.
                                                                        Pleas in law and main arguments
(1) OJ L 121 of 11.5.1999, p. 13.
                                                                        The action is directed against the rule in subparagraph (7)(a)
                                                                        of Article 12(2) of the German Law on turnover taxes, which
                                                                        is incompatible with the principles of the Sixth VAT Directive
                                                                        (fiscal neutrality, objectivity and uniform rate of duty). The
                                                                        third subparagraph of Article 12(3)(a) of the Sixth VAT
                                                                        Directive, in conjunction with Annex H thereto, does not
                                                                        permit a taxable activity to be divided into subgroups for the
                                                                        purpose of applying different rates of tax to such subgroups,
Action brought on 22 March 2002 by the Commission of                    as the rule at issue provides. Community law does not
the European Communities against the Federal Republic                   recognise an objective distinction as regards the different
                           of Germany                                   treatment at issue of the activities of performing artists
                                                                        according to whether the artists are appearing as soloists or as
                                                                        part of an ensemble. In the Commission’s view there is also
                         (Case C-109/02)                                competition between similar services provided by soloists and
                                                                        ensembles as ‘performing artists’ for the purposes of the
                                                                        third subparagraph of Article 12(3)(a), in conjunction with
                         (2002/C 131/13)                                paragraph 8 of Annex H to, the Sixth VAT Directive.
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-            (1) OJ L 145 of 13.6.1997, p. 1.
ties on 22 March 2002 by the Commission of the European
Communities, represented by Mr Enrico Traversa, Legal
Adviser, and Mr Günter Wilms, Member of its Legal Service,
with an address for service in Luxembourg at the office of
Mr Luis Escobar Guerrero, of its Legal Service, Wagner Centre
C 254, Kirchberg, Luxembourg.


title: Case C-347/07: Action brought on 25 July 2007 — Commission of the European Communities v Italian Republic

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/8

         Action brought on 25 July 2007 — Commission of the European Communities v Italian Republic
   (Case C-347/07)
   (2007/C 223/09)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: C. Cattabriga, acting as Agent)

      Defendant: Italian Republic
   Form of order sought

               —

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/41/EC (1) of the European Parliament and of the Council of 21 April 2004 repealing certain directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending Council Directives 89/662/EEC (2) and 92/118/EEC (3) and Council Decision 95/408/EC (4) or, in any event, by failing to communicate those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 8 of that directive;

               —

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposition of Directive 2004/41/EC expired on 1 January 2006.

      (1)  OJ 2004 L 157, p. 33.

      (2)  OJ 1989 L 395, p. 13.

      (3)  OJ 1992 L 62, p. 49.

      (4)  OJ 1995 L 243, p. 17.