title: Case T-300/14: Action brought on 2 May 2014  — Fricopan Back v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/48

         Action brought on 2 May 2014 — Fricopan Back v Commission
   (Case T-300/14)
   2014/C 223/51
   Language of the case: German

      Parties

      Applicant: Fricopan Back GmbH Immekath (Klötze, Germany) (represented by: T. Volz, M. Ringel, B. Wißmann, M. Püstow, C. Oehme and T. Wielsch, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 to open the formal investigation procedure under Article 108(2) TFEU against the Federal Republic of Germany regarding the support for renewable electricity and the reduced EEG-surcharge for energy-intensive users, State aid SA.33995 (2013/C) (ex 2013/NN), in so far as it applies to the reduction of the EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: No advantage within the meaning of Article 107(1) TFEU

                           —

                           The applicant claims that the reduction of the EEG-surcharge for energy-intensive users, provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG), does not constitute aid within the meaning of Article 107(1) TFEU. In this context, the applicant states that energy-intensive users are not favoured by the arrangement. The special compensation regime is, instead, compensation for exceptional costs which affect the applicant and comparable users to a special degree in the context of the support for renewable electricity, and is intended to re-establish the competitiveness of energy-intensive users who were initially considerably adversely affected by the EEG-surcharge.

               2.

               Second plea in law: No State resources within the meaning of Article 107(1) TFEU

                           —

                           In addition, the applicant claims that the special compensation regime does not constitute a measure granted ‘by a Member State or through State resources’. The applicant states, in this context, that the EEG-surcharge is not a State resource and that even a waiver of those resources by the special compensation regime cannot therefore constitute a measure granted through State resources.

                           —

                           The EEG-surcharge is not collected, administered or even allocated by the State or by a public or private institution nominated or established by the State. Instead, the EEG-surcharge can be directly collected by the transmission system operators on the basis of a corresponding entitlement under civil law. The EEG-surcharge does not benefit the State budget, and consequently the special compensation regime in no way indirectly or directly reduces State revenue.

                           —

                           The EEG-resources are also not available to State authorities. There is also no public control over the EEG-resources, such as by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office of Economics and Export Control, BAFA) or the Bundesnetzagentur (Federal Network Agency).


title: Case C-369/11: Action brought on 12 July 2011 — European Commission v Italian Republic

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/11

         Action brought on 12 July 2011 — European Commission v Italian Republic
   (Case C-369/11)
   2011/C 282/21
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: E. Montaguti and H. Støvlbæk, acting as Agents)

      Defendant: Italian Republic

      Form of order sought

               —

               Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Article 6(3) and Annex II of Directive 91/440/EEC (1), as amended, and with Articles 4(2), 14(2), 4(1), 30(3) and 30(1) of Directive 2001/14/EC (2), the Italian Republic has failed to fulfil its obligations under those provisions.

               —

               order the Italian Republic to pay the costs.

      Pleas in law and main arguments

   The Commission’s complaints concern the independence of the body carrying out essential functions in the matter of access to infrastructure and the imposition of dues for railway access and the powers and autonomy of the body regulating the railway sector.
   The Commission argues that the regime governing the exercise by the infrastructure manager of essential functions concerning access to the infrastructure does not provide sufficient guarantees that that manager operates independently of the holding company of the group of which it forms part, which also includes the main railway undertaking on the market.
   Moreover, given that it is for the Minister for Transport to determine dues for access to the network, whereas the infrastructure manager can only make a proposal on the matter and has only the operating duty of calculating the dues actually payable by a single railway undertaking, the latter is deprived of an essential management tool, in contrast with the requirement for independent management.
   Finally, the necessary full independence of the body for regulating all railway undertakings has not yet been assured, since the staff of the regulatory body consists of officials of the Ministry of Transport and the latter continues to exercise a decisive influence on the holding company of the group which includes the main Italian railway undertaking, and thus also on the latter.

      (1)  OJ 1991 L 237, p. 25.

      (2)  OJ 2001 L 75, p. 29.


title: Case T-538/08: Action brought on 9 December 2008 — Rewe-Zentral v OHIM — Kodi Diskontläden (inéa)

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/29

         Action brought on 9 December 2008 — Rewe-Zentral v OHIM — Kodi Diskontläden (inéa)
   (Case T-538/08)
   (2009/C 55/55)
   Language in which the application was lodged: German
   Parties

      Applicant: REWE-Zentral AG (Cologne, Germany) (represented by M. Kinkeldey and A. Bognár, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Koki Diskontläden GmbH (Oberhausen, Germany)
   Form of order sought

               —

               annul the decision of the Fourth Board of Appeal of OHIM of 6 October 2008 in Case No R 744/2008-4 and

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: Figurative mark ‘inéa’ in the colours blue, pink and white for goods in Classes 3, 5 and 16 (application No 4 462 826).

      Proprietor of the mark or sign cited in the opposition proceedings: Kodi Diskontläden GmbH.

      Mark or sign cited in opposition: Trade mark ‘MINEA’ (No 303 61 428,5) for goods in Classes 8, 9 and 16, the opposition being directed against registration for goods in Class 16.

      Decision of the Opposition Division: Opposition rejected.

      Decision of the Board of Appeal: Decision of the Opposition Division annulled.

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since there is no likelihood of confusion between the opposing marks.

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


title: Case C-96/09 P: Judgment of the Court (Grand Chamber) of 29 March 2011 — Anheuser-Busch Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(4) — Application for registration of the word and figurative mark BUD — Opposition — Indication of geographical origin ‘bud‘ — Protection under the Lisbon Agreement and bilateral treaties between two Member States — Use in the course of trade — Sign of more than mere local significance)

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/3

         Judgment of the Court (Grand Chamber) of 29 March 2011 — Anheuser-Busch Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-96/09 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(4) - Application for registration of the word and figurative mark BUD - Opposition - Indication of geographical origin ‘bud‘ - Protection under the Lisbon Agreement and bilateral treaties between two Member States - Use in the course of trade - Sign of more than mere local significance)
   2011/C 152/04
   Language of the case: English

      Parties

      Appellant: Anheuser-Busch Inc. (represented by: V. von Bomhard and B. Goebel, Rechtsanwälte)

      Other parties to the proceedings: Budějovický Budvar, národní podnik (represented by F. Fajgenbaum, T. Lachacinski, C. Petsch and S. Sculy-Logotheti, lawyers), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

      Re:

   Appeal against the judgment of the Court of First Instance (First Chamber) of 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 Budějovický Budvar v OHIM and Anheuser-Busch, by which the Court of First Instance annulled decisions R 234/2005-2, R 241/ 2005-2, R 802/2004-2 and R 305/2005-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) dismissing the appeals brought against the decisions of the Opposition Division rejecting the opposition brought by Budějovický Budvar, národní podnik against the application for registration of the word mark ‘BUD’ for goods in Classes 32 and 33 — Infringement of Article 8(4)(b) of Regulation (EC) No 40/94

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the Court of First Instance of the European Communities of 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 Budějovický Budvar v OHIM — Anheuser-Busch (BUD) in so far as the Court, with regard to the interpretation of Article 8(4) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 422/2004 of 19 February 2004, erred in holding, first, that the significance of the sign concerned, which cannot be merely local, must be evaluated exclusively by reference to the extent of the territory in which the sign is protected, without taking account of its use in that territory, second, that the relevant territory for the purpose of evaluating the use of that sign is not necessarily the territory in which the sign is protected and, finally, that the use of the sign does not necessarily have to occur before the date of the application for registration of the Community trade mark;

               2.

               Dismisses the remainder of the appeal;

               3.

               Refers Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 back to the General Court of the European Union;

               4.

               Reserves the costs.

      (1)  OJ C 113, 16.5.2009.


C 71/38              EN                  Official Journal of the European Communities                              13.3.1999
Action brought on 25 January 1999 by H. Drabbe against              It took no account of the interests of the official
       the Commission of the European Communities                   concerned.
                       (Case T-27/99)
                       (1999/C 71/70)                               Ð Breach of the principle of proportionality
                (Language of the case: Dutch)
                                                                    Since the transfer is not a charge on the Community, the
                                                                    Community interest does not justify the application of a
An action against the Commission of the European                    time-limit.
Communities was brought before the Court of First
Instance of the European Communities on 25 January
1999 by H. Drabbe, an official of the Commission of the             Ð Breach of the principle of legal certainty
European Communities, residing in Overijse (Belgium),
represented by G. van der Wal, lawyer with a right of
audience before the Hoge Raad der Nederlanden, and                  The Commission's argument that the applicant must have
L. Y. J. M. Parette, of the Brussels Bar, with an address for       been aware of the time-limit, because he was informed
service in Luxembourg at the Chambers of A. May, of the             thereof when he was a member of the temporary staff,
Luxembourg Bar, 31 Grand Rue.                                       disregards the fundamental difference between the
                                                                    situation under the Staff Regulations of an official and
                                                                    that of a member of the temporary staff.
The applicant claims that the Court should:
                                                                    Ð Breach of the duty to state reasons
Ð annul the Commission decision of 19 October 1998
    refusing to allow him to transfer his national pension
    rights to the Community pension scheme;                         The Commission refers only to the existence of a
                                                                    time-limit, and does not respond to the applicant's
                                                                    assertion that he was not adequately informed of the
Ð order the defendant to pay his costs.
                                                                    time-limit, after he changed status as a result of his
                                                                    appointment as a permanent official.
Pleas in law and main arguments adduced in support:
Ð The unlawful nature of the time-limit
There is no basis in Community law for the deadline of
six months employed in the contested decision.                             Removal from the register of Case T-55/98 (1)
                                                                                (1999/C 71/71)
Ð Breach of the duty of information
                                                                                (Language of the case: French)
The applicant was not adequately informed of the
existence of the aforementioned time-limit.
                                                                    By order of 14 January 1999 the President of the Third
                                                                    Chamber of the Court of First Instance of the European
Ð Breach of the principle of proper administration and              Communities has ordered the removal from the register of
    the duty to have regard for the official's interests            Case T-55/98: European Association of Craft, Small and
                                                                    Medium-Sized Enterprises (UEAPME) v Council of the
The Commission refused the applicant's request on the               European Union.
basis of a time-limit of which he had not been adequately
informed.                                                           (1) OJ C 184, 13.6.1998.


title: Case T-224/06: Judgment of the Court of First Instance of 25 June 2008 — Otto v OHIM (Community trade mark — Opposition proceedings — Application for the Community figurative mark l'Altra Moda — Earlier national figurative mark Alba Moda — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Article 73 and Article 74(1) and (2) of Regulation No 40/94)

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/21

         Judgment of the Court of First Instance of 25 June 2008 — Otto v OHIM
   (Case T-224/06) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark l'Altra Moda - Earlier national figurative mark Alba Moda - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Article 73 and Article 74(1) and (2) of Regulation No 40/94)
   (2008/C 197/36)
   Language of the case: Italian
   Parties

      Applicant: Otto GmbH & Co. KG (Hamburg, Germany) (represented by: C. Rohnke and M. Munz, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and P. Bullock, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: L'Altra Moda SpA (Rome, Italy) (represented by: A. Masetti Zannini de Concina and M. Bucarelli, lawyers)
   Re:
   Action brought against the decision of the Second Board of Appeal of OHIM of 16 June 2006 (Case R 793/2005-2) relating to opposition proceedings between Otto GmbH & Co. KG and l'Altra Moda SpA.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Otto GmbH & Co. KG to bear its own costs and those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and of l'Altra Moda SpA.

      (1)  OJ C 281, 18.11.2006.


title: Case C-576/12 P: Judgment of the Court (First Chamber) of 28 November 2013 — Ivan Jurašinović v Council of the European Union (Appeal — Access to the documents of the institutions — Regulation (EC) No 1049/2001 — Exceptions to the right of access — Article 4(1)(a), first and third indents — Public security — International relations)

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/16

         Judgment of the Court (First Chamber) of 28 November 2013 — Ivan Jurašinović v Council of the European Union
   (Case C-576/12 P) (1)

   (Appeal - Access to the documents of the institutions - Regulation (EC) No 1049/2001 - Exceptions to the right of access - Article 4(1)(a), first and third indents - Public security - International relations)
   2014/C 45/29
   Language of the case: French

      Parties

      Appellant: Ivan Jurašinović (represented by: N. Amara-Lebret, avocate)

      Other party to the proceedings: Council of the European Union (represented by: K. Pellinghelli and B. Driessen, Agents)

      Re:

   Appeal brought against the judgment of the General Court (Second Chamber, Extended composition) of 3 October 2012 in Case T-465/09 Jurašinović v Council by which the General Court dismissed the application for annulment of the Council decision of 21 September 2009 granting access to some of the reports drawn up by the European Union observers present in Croatia, in the Knin region, between 1 and 31 August 1995 — Application for access to documents held by the Council — Infringement of the right to a fair trial — Infringement of Articles 4(1) and 9 of Regulation No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) — Reports of observers posted by the European Union in Croatia — Exceptions to the right of access to documents — Sensitive documents — Risk of prejudice to the protection of international relations — Previous disclosure of those documents to a defendant in the context of criminal proceedings pending before the International Criminal Tribunal for the former Yugoslavia — Proper conduct of the criminal proceedings adversely affected.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal.

               2.

               Orders Mr Ivan Jurašinović to pay the costs.

      (1)  OJ C 32, 2.2.2013.


title: Case C-47/11: Reference for a preliminary ruling from the Judecătoria Timișoara (Romania) lodged on 2 February 2011 — SC Volksbank România SA v Autoritatea Națională Pentru Protecția Consumatorilor CRPC ARAD TIMIȘ

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/7

         Reference for a preliminary ruling from the Judecătoria Timișoara (Romania) lodged on 2 February 2011 — SC Volksbank România SA v Autoritatea Națională Pentru Protecția Consumatorilor CRPC ARAD TIMIȘ
   (Case C-47/11)
   2011/C 113/13
   Language of the case: Romanian

      Referring court

   Judecătoria Timișoara

      Parties to the main proceedings

      Applicant: SC Volksbank România SA

      Defendant: Autoritatea Națională Pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Comsumatorilor (CRPC) ARAD TIMIȘ

      Questions referred

               1.

               Is Article 30(1) of Directive 2008/48 (1) to be interpreted as precluding Member States from providing that national legislation transposing that directive is also to apply to agreements concluded before that national legislation entered into force?

               2.

               Is Article 22(1) of Directive 2008/48 to be interpreted as establishing the maximum level of harmonisation in the field of consumer credit agreements, by virtue of which Member States may not:

                           2.1.

                           extend the scope of the rules laid down in Directive 2008/48 to cover agreements expressly excluded from the scope of that directive (such as mortgage loan agreements); or

                           2.2.

                           introduce additional obligations for credit institutions as regards the types of charge which they may apply in consumer credit agreements falling within the scope of the national implementing legislation?

               3.

               If Question (2) is answered in the negative, are the principles of freedom to provide services and the free movement of capital to be interpreted as precluding a Member State from imposing measures on credit institutions under which they may not, in consumer credit agreements, apply bank charges which are not on the list of permitted charges, unless those permitted charges have been defined in the legislation of the State concerned?

      (1)  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).


25 . 11 . 95          EN                 Official Journal of the European Communities                              No C 315/ 13
Communities in Case T-5 85/93 between Stichting                     would be in stark contrast to the position under the national
Greenpeace Council ( Greenpeace International ) and 18              laws of the Member States and general developments in
others and the Commission of the European Communities,              international law . It would also be inconsistent with the
supported by the Kingdom of Spain, was brought before the           stated policy of the Community institutions and the
Court of Justice of the European Communities on                     governments of the Member States .
16 October 1995 by Stichting Greenpeace Council
( Greenpeace International ) and 18 others, represented by
Philippe Sands and Mark Hoskins, Barristers, of the Bar of
England and Wales , instructed by Leigh, Day & Co .,
Solicitors, with an address for service in Luxembourg at the               Removal from the register of Case C-2 14/90 ( )
Chambers of Jean-Paul Noesen, 18 , rue des Glacis .                                             ( 95/C 315/26 )
The Appellant claims that the Court should :
                                                                    By order of 27 September 1995 the President of the Third
1.   Set aside the order of the Court of First Instance of          Chamber of the Court of Justice of the European
     9 August 1995 in Case T-585/93 .                               Communities ordered the removal from the register of Case
                                                                    C-214/90 ( reference for a preliminary ruling): Agricola
2 . Declare that the application brought by the Appellants          d'Arsego SAS v. Azienda di Stato per gli Interventi nel
     in Case T-585/93 is admissible .
                                                                    Mercato Agricolo ( AIMA ).
3 . Order the Commission to pay the Appellants' costs of
     this appeal .                                                  (•) OJ No C 208 , 21 . 8 . 1990 .
Pleas in law and main arguments adduced in support:
It is submitted that the Court of First Instance failed to
properly interpret and apply Article 173 of the EC Treaty
                                                                           Removal from the register of Case C-438/93 ( )
and applied the wrong criteria in assessing whether the
appellants were individually concerned by the                                                   ( 95/C 315/27 )
Commission's acts under Article 173 of the EC Treaty.
                                                                    By order of 26 September 1995 the President of the Court of
The Court of First Instance applied case-law of the Court of        Justice of the European Communities ordered the removal
Justice which had been developed solely in the context of           from the register of Case C-438/93 ( reference for a
economic issues and rights to the effect that an individual         preliminary ruling): Adriatica Costruzioni Ancona Sri v.
must belong to a 'closed class' before he can be said to be         Ministero dei Lavori Pubblici and Comune di Ancona .
individually concerned by a Community act. The Court of
First Instance erred in applying that case-law without taking       ( 1 ) OJ No C 18 , 21 . 1 . 1994 .
into account properly or at all the specific nature and
character of the environmental, rather than economic ,
interests which form the basis of the appellants' case .
The practical effect of applying the traditional approach to               Removal from the register of Case C-256/94 ( l )
individual concern in environmental cases is that private
parties will never be able to challenge Community measures                                       ( 95/C 315/28 )
which affect their environmental interests . There would in
effect be a total vacuum of enforcement .                           By order of the President of 24 August 1995 the Court of
                                                                    Justice of the European Communities ordered the removal
 Moreover, to hold that private parties had no rights to seek       from the register of Case C-256/94 : Commission of the
 judicial review under Article 173 of the EC Treaty of              European Communities v. Kingdom of Spain .
 Community acts which violated Community environmental
 obligations or which caused other harm to the environment           (') OJ No C 304, 29 . 10 . 1994 .


title: Joined Cases C-430/08 and C-431/08: Judgment of the Court (Fourth Chamber) of 14 January 2010 (Reference for a preliminary ruling from the VAT and Duties Tribunal, Edinburgh and the VAT and Duties Tribunal, Northern Ireland — United Kingdom) — Terex Equipment Ltd (C-430/08), FG Wilson (Engineering) Ltd (C-431/08), Caterpillar EPG Ltd (C-431/08) v The Commissioners for Her Majesty’s Revenue & Customs (Regulation (EEC) No 2913/92 establishing the Community Customs Code — Articles 78 and 203 — Regulation (EEC) No 2454/93 — Article 865 — Inward processing procedure — Incorrect customs procedure code — Circumstances under which a customs debt is incurred — Revision of a customs declaration)

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/11

         Judgment of the Court (Fourth Chamber) of 14 January 2010 (Reference for a preliminary ruling from the VAT and Duties Tribunal, Edinburgh and the VAT and Duties Tribunal, Northern Ireland — United Kingdom) — Terex Equipment Ltd (C-430/08), FG Wilson (Engineering) Ltd (C-431/08), Caterpillar EPG Ltd (C-431/08) v The Commissioners for Her Majesty’s Revenue & Customs
   (Joined Cases C-430/08 and C-431/08) (1)

   (Regulation (EEC) No 2913/92 establishing the Community Customs Code - Articles 78 and 203 - Regulation (EEC) No 2454/93 - Article 865 - Inward processing procedure - Incorrect customs procedure code - Circumstances under which a customs debt is incurred - Revision of a customs declaration)
   2010/C 63/17
   Language of the case: English

      Referring court

   VAT and Duties Tribunal, Edinburgh and the VAT and Duties Tribunal, Northern Ireland — United Kingdom

      Parties to the main proceedings

      Applicants: Terex Equipment Ltd (C-430/08), FG Wilson (Engineering) Ltd (C-431/08), Caterpillar EPG Ltd (C-431/08)

      Defendant: The Commissioners for Her Majesty’s Revenue & Customs

      Re:

   Reference for a preliminary ruling — Edinburgh Tribunal Centre — Interpretation of Articles 78, 203 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Interpretation of Article 865 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1) — Goods entered into the European Community under the inward processing relief system — Mistaken use of an incorrect customs procedure code (CPC) on declarations made when the goods were re-exported from the Community, identifying the goods as ‘permanent export’ rather than ‘re-export’ — Possibility of revising the export declaration in order to correct the CPC and regularise the situation

      Operative part of the judgment

               1.

               The use in the export declarations at issue in the main proceedings of customs code 10 00 indicating the export of Community goods, instead of code 31 51 used for goods for which duties are suspended under the inward processing procedure, gives rise to a customs debt pursuant to Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and the first paragraph of Article 865 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 1677/98 of 29 July 1998.

               2.

               Article 78 of Regulation No 2913/92 permits the revision of the export declaration of the goods in order to correct the customs procedure code given to them by the declarant, and the customs authorities are obliged, first, to assess whether the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information and whether the objectives of the inward processing regime have not been threatened, in particular in that the goods subject to that customs procedure have actually been re-exported, and, second, where appropriate, to take the measures necessary to regularise the situation, taking account of the new information available to them.

      (1)  OJ C 327, 20.12.2008.


title: Case T-139/07: Action brought on 2 May 2007 — Pioneer Hi-Bred International v Commission

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/28

         Action brought on 2 May 2007 — Pioneer Hi-Bred International v Commission
   (Case T-139/07)
   (2007/C 155/53)
   Language of the case: English
   Parties

      Applicant: Pioneer Hi-Bred International Inc. (Johnston, USA) (represented by: J. Temple Lang, Solicitor)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Find that the Commission has failed to act in accordance with Article 18 of Directive 2001/18 on the deliberate release into the environment of genetically modified organisms, in having failed to submit to the Regulatory Committee a draft of the measures to be taken pursuant to Article 5(2) of the Council decision;

               —

               order the Commission to pay the applicant's costs.

         Pleas in law and main arguments
   The applicant claims, pursuant to Article 232 EC, that the Commission has failed to act, in infringement of Article 18 of Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms (1), to ensure the adoption of a decision concerning the applicant's notification for the placing on the market of insect-resistant genetically modified maize 1507.
   The applicant contends that under the procedure set out in the directive, the Commission is obliged to ensure that a decision on a notification is adopted and published within the period of time prescribed in the directive. The applicant furthermore submits that by failing to submit to the Regulatory Committee a draft of the measures to be taken the Commission failed to ensure that such a decision was adopted even though all requirements on the applicant and other parties under the directive had been completed in accordance with the directive.
   The applicant moreover submits that the Commission has been called upon to define its position within the terms of Article 232 EC which the Commission has failed to do. This has, according to the applicant, had adverse effects on the applicant's legal situation.

      (1)  Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1).


title: Reference for a preliminary ruling by the Tribunal Administratif, Amiens (Third Chamber), by judgment of that court of 22 May 1995 in the case of Société Sucrière Agricole de Maizy and Société Sucrière de Berneuil-sur-Aisne v. Directeur Régional des Impôts (Case C-172/95)

text:
 No C 189/ 12            I EN                  Official Journal of the European Communities                                     22 . 7 . 95
Reference for a preliminary ruling by judgment of the                     Justice, Queen's Bench Division, of 26 April 1995 , which
Supremo Tribunal Administrative of 25 January 1995 in                     was received at the Court Registry on 30 May 1995 , for a
the case of Fâbrica de Queijo ERU Portuguesa, Lda against                 preliminary ruling in the case of The Queen against the
                        the Alfândega de Lisboa                           Ministry of Agriculture Fisheries and Food, ex parte: B. L.
                            ( Case C-164/95 )                             Lay and The Queen against the Ministry of Agriculture
                                                                          Fisheries and Food, ex parte: D. G. Gage and D. J. Gage, on
                               ( 95/C 189/23 )                            the following questions :
Reference has been made to the Court of Justice of the
European Communities by order of the Supremo Tribunal                     1 . In determining a part transferee's entitlement to a
Administrative ( Supreme Administrative Court) of                              reference quantity under Articles 1 (2 ) and 2 of Council
25 January 1995 , which was received at the Court Registry                     Regulation ( EEC ) No 2055/93 of 19 July 1993
on 29 May 1995 , for a preliminary ruling in the case of                       allocating a special reference quantity to certain
Fâbrica de Queijo ERU Portuguesa, Lda against Alfândega                        producers of milk and milk products i 1 ) must a Member
de Lisboa ( Lisbon Customs Administration ) on the                             State having regard to Regulation ( EEC ) No 2055/93
following questions :                                                          and the general principles of Community law on
                                                                               legitimate expectation, proportionality and the respect
 1 . Having regard to Commission Regulation ( EEC )                            for property apportion the reference quantity between
       No 316/91 of 7 February 1991 (*) should the said                        transferor and - part transferee by ascertaining what
       cheese ( 2 ) be classified under tariff heading 0406 20 90 ,            proportion of the holding was used for milk production
       as 'grated or powdered cheese, of all kinds', or under                  at the time the transferor entered into the non-marketing
       tariff heading 0406 90 11 as 'other cheese , for                        undertaking and then apportioning the reference
       processing'?                                                            quantity between the transferor and transferee in
                                                                               proportion to the percentage of land used for milk
2 . Is the said Regulation interpretative and therefore                        production transferred to the part transferee ?
       applicable retroactively to the import of the said
       cheese ?
                                                                          2 . If the answer to question 1 is in the negàtive, are
                                                                               Articles 1 (2 ) and 2 of Regulation ( EEC ) No 2055/93
3 . In the event of either of the foregoing questions being                    invalid as contravening the general principles of
       answered in the negative, is account to be taken in this                Community law in particular those as to legitimate
       case of the Explanatory Notes to the combined                           expectation, proportionality and the respect for
       nomenclature of the European Communities in the                         property ?
       version referred to in Official Journal of the European
       Communities No C 263 of 18 October 1990, page 110,
       or of the previous Explanatory Notes ?                             3 . If the answer to questions 1 and 2 are in the negative, in
                                                                               determining a part transferee's entitlement to a reference
4 . In either case, under which of the two tariff headings                     quantity under Articles 1 ( 2 ) and 2 of Regulation ( EEC )
       mentioned above is the said cheese to be classified ?                   No 2055/93 is a Member State entitled to apportion the
                                                                               reference quantity between transferor and part
0 ) OJ No L 37, 9 . 2 . 1991 , p . 25 .
                                                                               transferee in proportion to that part of the transferor's
( 2 ) Cheese coming from a Community country, described by the                 holding transferred to the transferee ?
      exporter as grated cheese, which had been ground and subjected
      to an industrial process in which oxygen was replaced by an
                                                                          (!) OJ No L 187, 29 . 7. 1993 , p . 8 .
      injected nitrogen/002 solution, in order to enhance its
      preservation, and then packaged and compacted in plastic bags,
      each containing about 15 kgs , with a high moisture content,
      having the appearance of a compact mass or paste, which, after
      unpacking and exposure to the atmosphere breaks down into
      irregular granules.
                                                                         Reference for a preliminary ruling by the Tribunal
                                                                         Administratif, Amiens (Third Chamber), by judgment
                                                                         of that court of 22 May 1995 in the case of Société
Reference for a preliminary ruling by the High Court of                  Sucrière Agricole de Maizy and Société Sucrière de
Justice, Queen's Bench Division, by order of that court of                    Berneuil-sur-Aisne v. Directeur Régional des Impôts
26 April 1995 , in the case of The Queen against the Ministry
of Agriculture Fisheries and Food, ex parte: B. L. Lay and                                        (Case C-172/95 )
The Queen against the Ministry of Agriculture Fisheries and                                        ( 95/C 189/25 )
           Food, ex parte: D. G. Gage and D. J. Gage
                             Case C-165/95 )
                                                                         Reference has been made to the Court of Justice of the
                              ( 95/C 189/24 )                            European Communities by judgment of the Tribunal
                                                                         Administratif (Administrative Court), Amiens (Third
Reference has been made to the Court of Justice of the                   Chamber), of 22 May 1995 , which was received at the
European Communities by an order of the High Court of                    Court Registry on 6 June 1 995 .
 ---pagebreak--- 22 . 7. 95                  EN                 Official Journal of the European Communities                                  No C 189/13
The Tribunal Administratif, Amiens, seeks a preliminary                   2 . Regard being had to the principle of proportionality,
ruling concerning:                                                            does not the criterion of 'technical suitability for
                                                                              carriage of goods by inland waterway' applied by the
                                                                              Commission of the European Communities in its
— the chargeable event for the storage levy provided for by                   decision of 6 May 1993, which makes even vessels
     Article 8 of Council Regulation ( EEC ) No 1785/81 of                    which are not actually used for transport on the linked
     30 June 1981 on the common organization of the                           inland waterway networks of the Member States subject
     markets in the sugar sector ( 1 ), Article 12 of Commission              to the obligation to make a contribution in the
     Regulation ( EEC) No 1998/78 of 18 August 1978 laying                    framework of the 'old-for-new' rule, conflict with
     down detailed rules for the offsetting of storage costs for              the objective and purport of Regulation ( EEC )
     sugar ( 2 ) and Article 6 of Council Regulation ( EEC )                  No 1101 /89 ?
     No 1358/77 of 20 June 1977 laying down general rules
     for offsetting storage costs for sugar ( 3 ),
                                                                          3 . Regard being had to the aim, the general objective and
— the period in respect of which are payable the                              the specific purport of Regulation ( EEC ) No 1101 /89 , is
     elimination levies provided for in Article 32a of Council                a purely theoretical suitability of a vessel for inland
     Regulation (EEC ) No 934/86 of 24 March 1986 on the                      transport, in the sense that it could be made suitable for
     common organization of the market in sugar (4 ) and                      inland transport only after laborious and expensive and
     Council Regulation ( EEC ) No 1914/87 of 2 July 1987,                    therefore economically unrealistic conversion or that
     which introduced a special elimination levy in the sugar                 use of the vessel for inland waterway transport would be
     sector for the 1986/87 marketing year.                                   wholly unprofitable because the vessel is not designed or
                                                                              equipped for inland transport, sufficient for it to be
                                                                              subject to the obligation to make a contribution in the
(M   OJ  No  L  177, 1 . 7 . 1981 , p . 4 .                                   framework of the ' old-for-new' rule ?
(2)  OJ  No  L  213 , 23 . 8 . 1978 , p . 5 .
(3)  OJ  No  L  156 , 25 . 6 . 1977, p. 4 .
(4 ) OJ  No  L  87 , 2 . 4 . 1986 , p . 1 .
                                                                          4 . Regard being had to the aim, the general objective and
                                                                              the specific purport of Regulation ( EEC ) No 1101 /89
                                                                              can the decision of the Commission of the European
                                                                              Communities of 6 May 1993 be regarded as applicable
                                                                              to the mts . 'Smaragd ' since it subjects to the obligation
                                                                              to pay the single contribution in the framework of the
                                                                              'old-for-new' rule a vessel which is especially designed,
                                                                              constructed and equipped as a bunkering vessel with the
Reference for a preliminary ruling from the Rechtbank van                     exclusive purpose of supplying sea-going ships with fuel
Koophandel te Antwerpen by judgment of that court of                          and is not particularly suitable or intended for carriage
  6 June 1995 in the case of N. V. Wiljo v. Belgian State                     for a third party, or even on own account, of fuel
                             (Case C-1 78/95 )                                products on inland waterways and hence does not
                               ( 95/C 189/26 )                                increase the cargo capacity of shipping or tonnage of
                                                                              inland transport ?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Rechtbank
van Koophandel te Antwerpen ( Commercial Court,                           5 . Does not the application by the Commission of the
Antwerp ) of 6 June 1995 , which was received at the Court                    criterion of technical suitability instead of the actual use
Registry on 8 June 1995, for a preliminary ruling in the                      of the vessel constitute an infringement of the
case of N. V. Wiljo v. Belgian State on the following                         prohibition of discrimination since, in accordance with
questions:                                                                    the criterion used by the Commission for vessels
                                                                              operating in Belgium, the Netherlands, Luxembourg,
                                                                               Germany and France, the single contribution is due in
                                                                              certain cases although the vessel is not actually used for
 1 . Regard being had to the aim, the general objective and
     the specific purport of Council Regulation ( EEC )                       inland waterway transport and does not therefore
                                                                              contribute to increasing the tonnage of inland waterway
     No 1101 /89 of 27 April 1989 on structural
      improvements in inland waterway transport, does the                     transport, whereas the single contribution on the
     concept 'specialized vessels' in Article 8 ( 3 ) (c ) of the             putting into service of a vessel in the other Member
     Regulation in question refer to vessels which, as a result               States is due only if that is justified by its actual use ( on
                                                                              the network of linked Community waterways ).
      of their specific construction and equipment or of their
      specific use, do not increase the cargo capacity or the
     tonnage of inland waterway transport and are therefore
      not of such a nature as to affect the structural
      over-capacity of carriage of goods on the linked inland
     waterway networks of the Member States ?


title: Case T-104/17: Action brought on 15 February 2017 — Apple v EUIPO — Apo International (apo)

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/23

         Action brought on 15 February 2017 — Apple v EUIPO — Apo International (apo)
   (Case T-104/17)
   (2017/C 129/36)
   Language in which the application was lodged: English

      Parties

      Applicant: Apple Inc. (Cupertino, California, United States) (represented by: J. Olsen and P. Andreottola, Solicitors, and G. Tritton, Barrister)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Apo International Co. Ltd (Taipei City, Taiwan)

      Details of the proceedings before EUIPO

      Applicant of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: EU figurative mark containing the word element ‘apo’ — Application for registration No 11 293 628

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 1 December 2016 in Case R 698/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               uphold the Applicant’s appeal against the contested decision in its entirety;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of Articles 8(1)(b) and (5) of Regulation No 207/2009;

               —

               The contested decision offends against the principle of reformatio in peius;

               —

               The Board of Appeal erred in finding that the passing off claim under Article 8(4) was not substantiated.


title: Case C-289/09: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 24 July 2009 — Pace plc v The Commissioners for Her Majesty's Revenue & Customs

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/9

         Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 24 July 2009 — Pace plc v The Commissioners for Her Majesty's Revenue & Customs
   (Case C-289/09)
   2009/C 256/17
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicant: Pace plc

      Defendant: The Commissioners for Her Majesty's Revenue & Customs

      Questions referred

               1.

               Is a set top box with a communication function (‘STB’) and a hard disk drive (‘HDD’) to be classified under Combined Nomenclature (‘CN’) subheading 8528 71 13, as set out in Commission Regulation 1549/2006 (1) and Commission Regulation 1214/2007 (2) amending Annex 1 to Council Regulation 2658/87, despite the Explanatory Notes to the CN (‘CNEN’) adopted by the European Commission on 7 May 2008 (2008/C113/02) concerning CN subheading 8521 90 00 and subheading 8528 71 13?

               2.

               In the event that a STB with a HDD with the specifications of a STB-HDD were to be classified under CN subheading 8521 90 00, would the application of a positive rate of customs duty be unlawful as a matter of Community law, as a consequence of violating the Community's obligations under the Information Technology Agreement and Article II:1 (b) of the General Agreement on Tariffs and Trade 1994 or does classification under heading 8521 entail a conclusion that the product in question falls outside the scope of the relevant part of the ITA?

               3.

               Are the provisions of Article 12(5)(a)(i) to be understood to mean that the BTI dated 8 April 2005 relied upon by Pace plc automatically ceased to be valid after 31 December 2006 on the basis that it no longer conformed to the law laid down in Commission Regulation 1549/2006. In particular, is Article 12(5)(a)(i) to be interpreted in such a way that Commission Regulation 1549/2006 does not fall within the concept of a ‘regulation’ for the purposes of that Article either because it is an annual update to the CN or because it is not a specific classification regulation.

               4.

               Are the provisions of Article 12 (6) of the Customs Code to be understood to mean that where an annual CN update is adopted which contains no provision confirming the extent of an available grace period to BTI holders, that such holders shall not be entitled to a grace period, or should they be entitled to the usual grace period of six months for Commission classification regulations under the principle of legitimate expectation?

      (1)  Commission Regulation (EC) No 1549/2006 of 17 October 2006 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff
   OJ L 301, p. 1

      (2)  Commission Regulation (EC) No 1214/2007 of 20 September 2007 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff
   OJ L 286, p. 1


title: Case C-41/05: Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) by judgment of that court of 24 January 2005 in Air Liquide Industries Belgium SA v Province de Liège

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/9

         Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) by judgment of that court of 24 January 2005 in Air Liquide Industries Belgium SA v Province de Liège
   (Case C-41/05)
   (2005/C 93/16)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by judgment of the Tribunal de première instance de Liège (Belgium) of 24 January 2005, received at the Court Registry on 3 February 2005, for a preliminary ruling in the proceedings between Air Liquide Industries Belgium SA and Province de Liège on the following questions:

               1.

               Must exemption from a provincial tax on motive force granted solely in respect of motors used in natural gas installations, to the exclusion of motors used for other industrial gases, be regarded as State aid within the meaning of Article 87 of the consolidated version of the Treaty establishing the European Community?

               2.

               If the answer to the preceding question is ‘yes’, must the national court, before which an action is brought by a taxpayer who has not enjoyed exemption from the provincial tax on motive force, order the public authority which levied that tax to repay it to that taxpayer if it finds that, in law and in fact, it is not possible for the public authority which levied that tax to claim it from the taxpayer who enjoyed exemption from the tax on motive force?

               3.

               Must a tax on motive force levied on motors used for transporting industrial gas by means of pipes under very high pressure, which requires the use of compression installations, be regarded as a charge having equivalent effect prohibited by Articles 25 et seq. of the consolidated version of the Treaty, if it is apparent that, de facto, it is levied by a province or a municipality on the transport of industrial gas outside its territorial limits, when in the same conditions the transport of natural gas is exempt from such a tax?

               4.

               Must a tax on motive force levied on motors used for transporting industrial gas by means of pipes under very high pressure, which requires the use of compression installations, be regarded as an internal taxation measure, prohibited by Articles 90 et seq. of the Treaty, if it is apparent that the transport of natural gas is exempt from that tax?

               5.

               If the answer to the questions above is ‘yes’, is a taxpayer who has paid the tax on motive force justified in seeking the reimbursement of that tax from 16 July 1992, the date on which the Legros and Others judgment was given?


title: Judgment of the Court of 18 June 2002 in Case C-60/01: Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Directives 89/369/EEC and 89/429/EEC — Air pollution — Municipal waste incineration plants — Incinerators in France)

text:
C 191/8                  EN                      Official Journal of the European Communities                                          10.8.2002
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                          (Sixth Chamber)                                                              of 18 June 2002
                           of 18 June 2002
                                                                            in Case C-60/01: Commission of the European Communi-
                                                                                ties v French Republic (1)
in Case C-398/00: Kingdom of Spain v Commission of the
                    European Communities (1)
                                                                            (Failure of a Member State to fulfil its obligations —
                                                                            Directives 89/369/EEC and 89/429/EEC — Air pollution —
(State aid — Plans notified — No decision by the Com-                       Municipal waste incineration plants — Incinerators in
mission within the two-month time-limit — Time-limit of                                                    France)
15 working days for initiating the formal investigation
procedure — Calculation of the time-limit — Conditions
governing prior notice by the Member State and notification                                            (2002/C 191/13)
        of the Commission’s decision — Service by fax)
                                                                                (Language of the case: French)
                           (2002/C 191/12)
                   (Language of the case: Spanish)                          (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-60/01, Commission of the European Communities
                                                                            (Agents: H. Støvlbaek and J. Adda) v French Republic (Agents:
                                                                            G. de Bergues and D. Colas, and, subsequently, R. Abraham
In Case C-398/00, Kingdom of Spain (Agent: S. Ortiz Vaamon-                 and D. Colas): Application for a declaration that, by failing to
de) v Commission of the European Communities (Agents:                       adopt all the necessary and appropriate measures to ensure
G. Rozet and R. Vidal): Application for annulment of the                    that all incinerators currently operating in France are operated
Commission’s decision of 17 August 2000, notified to the                    in accordance with the combustion conditions laid down by
Kingdom of Spain by letter SG (2000) D/106322 of 22 August                  Council Directive 89/369/EEC of 8 June 1989 on the preven-
2000 and published in the Official Journal of the European                  tion of air pollution from new municipal waste incineration
Communities of 18 November 2000 (OJ 2000 C 328, p. 19), to                  plants (OJ 1989 L 163, p. 32) and Council Directive 89/429/
initiate the formal investigation procedure for assessing the               EEC of 21 June 1989 on the reduction of air pollution from
compatibility with the EC Treaty of aid to Santana Motor SA,                existing municipal waste incineration plants (OJ 1989 L 203,
in respect of all measures therein referred to, other than the              p. 50) or that they ceased to operate by the due date, namely
guarantee granted in June 1998, the Court (Sixth Chamber),                  1 December 1990 as regards new plants and 1 December
composed of: F. Macken, President of the Chamber, J-P. Puisso-              1996 as regards existing plants, the French Republic has failed
chet (Rapporteur), and V. Skouris, Judges; S. Alber, Advocate               to fulfil its obligations under Article 4(1) of Directive 89/
General; R. Grass, Registrar, has given a judgment on 18 June               369, Articles 2(a) and 4 of Directive 89/429 and the third
2002, in which it:                                                          paragraph of Article 249 EC, the Court, composed of:
                                                                            G.C. Rodrı́guez Iglesias, President, P. Jann, F. Macken, N. Col-
                                                                            neric and S. von Bahr (Presidents of Chambers), A. La Pergola,
1.    Annuls the Commission’s decision of 17 August 2000, notified
                                                                            J.-P. Puissochet, M. Wathelet, V. Skouris, J.N. Cunha Rodrigues
      to the Kingdom of Spain by letter SG (2000) D/106322 of               and C.W.A. Timmermans (Rapporteur), Judges; S. Alber,
      22 August 2000, to initiate the formal investigation procedure
                                                                            Advocate General; R. Grass, Registrar, has given a judgment
      for assessing the compatibility with the EC Treaty of aid to          on 18 June 2002, in which it:
      Santana Motor SA, in respect of all measures therein referred
      to, other than the guarantee granted in June 1998;
                                                                            1.     Declares that, by failing to adopt all the necessary and
2.    Orders the Commission of the European Communities to pay                     appropriate measures to ensure that all incinerators in France
      the costs.                                                                   are operated in accordance with the combustion conditions laid
                                                                                down by Council Directive 89/369/EEC of 8 June 1989 on
                                                                                the prevention of air pollution from new municipal waste
(1) OJ C 28 of 27.1.2001.                                                          incineration plants and Council Directive 89/429/EEC of
                                                                                21 June 1989 on the reduction of air pollution from existing
                                                                                municipal waste incineration plants or that they ceased to
                                                                                operate by the due date, namely 1 December 1990 as regards
 ---pagebreak--- 10.8.2002               EN                       Official Journal of the European Communities                                            C 191/9
      new plants and 1 December 1996 as regards existing plants,            1.    Declares that, by maintaining a condition relating to duration
      the French Republic has failed to fulfil its obligations under              of residence in the territory of Luxembourg for the grant of the
      Article 4(1) of Directive 89/369 and Articles 2(a) and 4 of                 guaranteed minimum income provided for by its legislation, the
      Directive 89/429;                                                           Grand Duchy of Luxembourg has failed to fulfil its obligations
                                                                                under Article 7(2) of Regulation (EEC) No 1612/68 of the
2.    Orders the French Republic to pay the costs.                                Council of 15 October 1968 on freedom of movement for
                                                                                workers within the Community and Article 43 EC;
                                                                            2.    Orders the Grand Duchy of Luxembourg to pay the costs.
(1) OJ C 108 of 7.4.2001.
                                                                            (1) OJ C 289 of 13.10.2001.
                 JUDGMENT OF THE COURT
                                                                                ORDER OF THE COURT
                        (Fourth Chamber)
                                                                                (Fifth Chamber)
                          of 20 June 2002
                                                                                of 5 June 2002
in Case C-299/01: Commission of the European Communi-
            ties v Grand Duchy of Luxembourg (1)                            in Case C-204/00 P: Aalborg Portland A/S v Commission
                                                                                of the European Communities (1)
(Failure by a Member State to fulfil its obligations —                      (Appeals — Competition — Cement — Article 85(1) of the
Article 7(2) of Regulation (EEC) No 1612/68 — Freedom of                    EC Treaty (now, Article 81(1) EC) — Appeal in part
movement for workers — Article 43 EC — Freedom of                                                  manifestly unfounded)
establishment — Social advantages — Guaranteed mini-
                            mum income)
                                                                                (2002/C 191/15)
                          (2002/C 191/14)
                                                                                (Language of the case: Danish)
                    (Language of the case: French)                          (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-204/00 P: Aalborg Portland A/S, established in
                                                                            Aalborg (Denmark), represented by K. Dyekjær-Hansen and
                                                                            K. Høegh, lawyers — appeal against the judgment of the
In Case C-299/01, Commission of the European Communities                    Court of First Instance of the European Communities, Fourth
(Agent: H. Michard) v Grand Duchy of Luxembourg (Agent:                     Chamber, Extended Composition, of 15 March 2000 in Joined
N. Mackel): Application for a declaration that, by maintaining              Cases T-25/95, T-36/95, T-30/95 to T-32/95, T-34/95 to
a condition relating to duration of residence in the territory of           T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95,
Luxembourg for the grant of a guaranteed minimum income,                    T-68/95 to T-71/95, T-87/95 to T-88/95 and T-103/95 to
the Grand Duchy of Luxembourg has failed to fulfil its                      T-104/95 Cimenteries CBR and Others v Commission [2000]
obligations under Article 7(2) of Regulation (EEC) No 1612/                 ECR II-491, seeking to have that judgment partially set aside,
68 of the Council of 15 October 1968 on freedom of                          the other party to the proceedings being Commission of
movement for workers within the Community (OJ, English                      the European Communities (Agents: R. Lyal, assisted by
Special Edition 1968 (II), p. 475) and Article 43 EC, the Court             H.P. Hartvig) &mdash the Court (Fifth Chamber), composed of
(Fourth Chamber), composed of: S. von Bahr, President of the                P. Jann, President of the Chamber, D.A.O. Edward (Rappor-
Chamber, D.A.O. Edward (Rapporteur) and C.W.A. Timmer-                      teur), A. La Pergola, M. Wathelet and A. Rosas, Judges; D. Ruiz-
mans, Judges; D. Ruiz-Jarabo Colomer, Advocate General;                     Jarabo Colomer, Advocate General; R. Grass, Registrar, made
R. Grass, Registrar, has given a judgment on 20 June 2002, in               an order on 5 June 2002, the operative part of which is as
which it:                                                                   follows:


title: Case T-25/08: Order of the General Court of 11 November 2010 — Katjes Fassin v OHMI (Yoghurt-Gums)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/35

         Order of the General Court of 11 November 2010 — Katjes Fassin v OHMI (Yoghurt-Gums)
   (Case T-25/08) (1)

   ()
   2011/C 13/67
   Language of the case: German
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 64, 8.3.2008.


title: Case T-263/06: Action brought on 25 September 2006 — Greece v Commission

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/41

         Action brought on 25 September 2006 — Greece v Commission
   (Case T-263/06)
   (2006/C 281/72)
   Language of the case: Greek
   Parties

      Applicant: Hellenic Republic (represented by: I. Khalkias, G. Kanellopoulos)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the Commission Decision of 27 July 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), notified under document number C(2006) 3331 final and published under number 2006/554/EC (1);

               —

               in the alternative, alter it as set out more specifically below;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   By the contested decision, the Commission, clearing accounts under Regulation (EEC) No 729/70 (2), excluded from Community financing inter alia certain expenditure which had been incurred by the Hellenic Republic in the area of measures accompanying rural development and had been declared under the Guarantee Section of the EAGGF.
   The applicant advances as a general ground for annulment of Commission Decision C(2006) 3331 final the infringement of an essential requirement of the procedure for clearing accounts laid down in subparagraph (a) of the third subparagraph of Article 8(1) of Regulation No 1663/95 (3). Specifically, it submits that the Commission failed to engage in a bilateral discussion with the Greek authorities on an evaluation of the gravity of the infringements attributed to them and the financial loss to the Community; in the alternative it raises the Commission's lack of power ratione temporis to impose the financial corrections at issue.

      (1)  OJ L 218, 9.8.2006, p. 12.

      (2)  Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (I), p. 218).

      (3)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ L 158, 8.7.1995, p. 6).


title: Case C-290/16: Judgment of the Court (Fourth Chamber) of 6 July 2017 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Air Berlin plc & Co. Luftverkehrs KG v Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV (Reference for a preliminary ruling — Transport — Common rules for the operation of air services in the European Union — Regulation (EC) No 1008/2008 — Provisions on pricing — Article 22(1) — Article 23(1) — Information required on presentation of fares and rates available to the general public — Obligation to indicate the actual sum of taxes, charges, surcharges or fees — Pricing freedom — Invoicing of handling fees in the event of cancellation of a flight booking by a passenger or failure to present for boarding — Consumer protection)

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/10

         Judgment of the Court (Fourth Chamber) of 6 July 2017 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Air Berlin plc & Co. Luftverkehrs KG v Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV
   (Case C-290/16) (1)

   ((Reference for a preliminary ruling - Transport - Common rules for the operation of air services in the European Union - Regulation (EC) No 1008/2008 - Provisions on pricing - Article 22(1) - Article 23(1) - Information required on presentation of fares and rates available to the general public - Obligation to indicate the actual sum of taxes, charges, surcharges or fees - Pricing freedom - Invoicing of handling fees in the event of cancellation of a flight booking by a passenger or failure to present for boarding - Consumer protection))
   (2017/C 283/13)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellant: Air Berlin plc & Co. Luftverkehrs KG

      Respondent: Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV

      Operative part of the judgment

               1.

               The third sentence of Article 23(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community must be interpreted as meaning that, when publishing their air fares, air carriers must specify separately the amounts payable by customers in respect of taxes, airport charges and other charges, surcharges or fees referred to in subparagraphs (b) to (d) of the third sentence of Article 23(1) of that regulation and may not, as a consequence include those items, even partially, in the air fare referred to in subparagraph (a) of the third sentence of Article 23(1) of that regulation.

               2.

               Article 22(1) of Regulation No 1008/2008 must be interpreted as not precluding the application of national legislation transposing Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts from leading to a declaration of invalidity of a term in general terms and conditions which allows separate flat-rate handling fees to be billed to customers who did not take a flight or who cancelled their booking.

      (1)  OJ C 343, 19.9.2016.


title: Case C-191/13 P: Appeal brought on 15 April 2013 by Confindustria Venezia, formerly Unione degli Industriali della Provincia di Venezia (Unindustria) and Others against the order of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-273/00 Unindustria and Others v European Commission

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/8

         Appeal brought on 15 April 2013 by Confindustria Venezia, formerly Unione degli Industriali della Provincia di Venezia (Unindustria) and Others against the order of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-273/00 Unindustria and Others v European Commission
   (Case C-191/13 P)
   2013/C 207/13
   Language of the case: Italian

      Parties

      Appellants: Confindustria Venezia, formerly Unione degli Industriali della Provincia di Venezia (Unindustria) and Others (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

      Other parties to the proceedings: European Commission, Siram SpA, Bortoli Ettore Srl, Arsenale Venezia SpA, Italian Republic

      Form of order sought

               —

               Set aside and/or vary the order of the General Court (Fourth Chamber) delivered in Case T-273/00, and order the Commission to pay the costs

      Pleas in law and main arguments

   In support of their appeal, the appellants allege errors of law in the application of the principles outlined by the Court of Justice in its judgment in Comitato ‘Venezia vuole vivere’ and Others v Commission, regarding (i) the duty to state the reasons for decisions of the Commission relating to State aid and (ii) the allocation of the burden of proof concerning the conditions laid down in Article 107(1) TFEU.
   In the order that is the subject of the present appeal, the General Court did not comply with the judgment delivered by the Court of Justice on 9 June 2011 in Comitato ‘Venezia vuole vivere’, in so far as that judgment states that a decision of the Commission ‘must contain in itself all the matters essential for its implementation by the national authorities’. However, even though the decision at issue in the present case lacked the matters essential for its implementation by the national authorities, the General Court failed to find any deficiency in the method used by the Commission in the contested decision, and consequently erred in law.
   On the basis of the principles outlined by the Court in its judgment in Comitato ‘Venezia vuole vivere’, when aid is being recovered, it is the Member State — and not, therefore, the individual beneficiary — which is required to show, in each individual case, that the conditions laid down in Article 107(1) TFEU are met. In the present case, however, in the contested decision the Commission failed to clarify the ‘modalities’ of any such verification; consequently, since it did not have available to it, at the time when the aid was to be recovered, the information necessary to show that the advantages granted constituted, in the hands of the beneficiaries, State aid, the Italian Republic — by Law No 228 of 24 December 2012 (Article 1, paragraph 351 et seq.) — decided to reverse the burden of proof, in breach of Community case-law. According to the Italian legislature, in particular, it is not for the State but for the individual beneficiaries of aid granted in the form of relief to prove that the advantages in question do not distort competition or affect trade between Member States. In the absence of any such proof, there is a presumption that the advantage granted was likely to distort trade and affect trade between Member States. That presumption is clearly contrary to the principles outlined by the Court in Comitato ‘Venezia vuole vivere’.


title: Case C-69/14: Request for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 10 February 2014 — Dragoș Constantin Târșia v Romanian State, through the Ministerul Finanțelor și Economiei, Serviciul Public Comunitar Regim Permise de Conducere și Inmatriculare a Autovehiculelor

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/15

         Request for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 10 February 2014 — Dragoș Constantin Târșia v Romanian State, through the Ministerul Finanțelor și Economiei, Serviciul Public Comunitar Regim Permise de Conducere și Inmatriculare a Autovehiculelor
   (Case C-69/14)
   2014/C 142/20
   Language of the case: Romanian

      Referring court

   Tribunalul Sibiu

      Parties to the main proceedings

      Applicant: Dragoș Constantin Târșia

      Defendants: Romanian State, through the Ministerul Finanțelor și Economiei, Serviciul Public Comunitar Regim Permise de Conducere și Inmatriculare a Autovehiculelor

      Question referred

   Can Articles 17, 20, 21 and 47 of the Charter of Fundamental Rights of the European Union, Article 6 of the Treaty on the European Union, Article 110 of the Treaty on the Functioning of the European Union, the principle of legal certainty laid down in European Union law and in the case-law of the Court of Justice be interpreted as precluding a rule such as that found in Article 21(2) of Law No 554/2004 which allows for revision of national judicial decisions when there is an infringement of the principle of the primacy of [European Union] law exclusively in administrative proceedings and which does not allow for revision of national judicial decisions delivered in proceedings other than administrative proceedings (civil or criminal proceedings) when there is an infringement of the same principle of primacy of [European Union] law at issue in those decisions?


title: Case F-53/08: Judgment of the Civil Service Tribunal (Plenary Formation) of 5 May 2010 — Bouillez and Others v Council (Staff cases — Officials — Promotion — 2007 promotion procedure — Interest in bringing proceedings — Promotion decision — Liste of promoted officials — Consideration of the comparative merits — Criterion of the level of responsibility held — Application for annulment of the promotion decisions — Balance of interests)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/56

         Judgment of the Civil Service Tribunal (Plenary Formation) of 5 May 2010 — Bouillez and Others v Council
   (Case F-53/08) (1)

   (Staff cases - Officials - Promotion - 2007 promotion procedure - Interest in bringing proceedings - Promotion decision - Liste of promoted officials - Consideration of the comparative merits - Criterion of the level of responsibility held - Application for annulment of the promotion decisions - Balance of interests)
   2010/C 234/102
   Language of the case: French

      Parties

      Applicants: Vincent Bouillez (Overijse, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

      Defendant: Council of the European Union

      Interveners: Eliza Niniou and Maria-Béatrice Postiglione Branco, residing at Schaerbeek (Belgium) and at Kraainem (Belgium) respectively, (represented by: T. Bontinck and S. Woog initially, and then by T. Bontinck and S. Greco, lawyers)
   and
   Maria De Jesus Cabrita and Marie-France Liegard, officials of the Council of the European Union, residing in Brussels (Belgium), (represented by: N. Lhoëst initially, then by N. Lhoëst and L. Delhaye, lawyers)

      Re:

   Annulment of the decisions of the appointing authority not to promote the applicants to grade AST 7 under the 2007 promotion procedure

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decisions by which the Council of the European Union refused to promote Mr Bouillez and Van Neyghem and Ms Wagner-Leclercq to grade AST 7 under the 2007 promotion procedure;

               2.

               Dismisses the remainder of the claims in the actions brought by Mr Bouillez and Van Neyghem and by Ms Wagner-Leclercq;

               3.

               Orders the Council of the European Union to pay the costs;

               4.

               Orders the interveners to bear their own costs.

      (1)  OJ C 183, 19.7.2008, p. 35.


title: Case T-128/12: Action brought on 21 March 2012 — HTTS v Council

text:
               2.6.2012

               EN

               Official Journal of the European Union

               C 157/8

         Action brought on 21 March 2012 — HTTS v Council
   (Case T-128/12)
   2012/C 157/15
   Language of the case: German

      Parties

      Applicant: HTTS Hanseatic Trade Trust & Shipping GmbH (Hamburg, Germany) (represented by: J. Kienzle and M. Schlingmann, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (1) and Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (2) in so far as they concern the applicant;

               —

               Order the Council to pay the costs of the proceedings, in particular the applicant’s expenses.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the applicant’s rights of defence

                           —

                           The applicant submits in this context that the Council infringed the applicant’s right to effective legal protection and, in particular, the obligation to state reasons by failing to supply sufficient grounds for the renewed inclusion of the applicant in the lists of persons, bodies and entities subject to restrictive measures in accordance with Articles 19 and 20 of Decision 2010/413/CFSP (3) and with Article 16 of Regulation (EU) No 961/2010. (4)

                           —

                           Furthermore the Council failed, in spite of the applicant’s request, to review its decision to renew the applicant’s inclusion in the sanctions lists.

                           —

                           In addition the Council infringed the applicant’s right to be heard by not giving the applicant the opportunity to comment beforehand on its renewed inclusion in the sanctions lists and thereby to trigger a review by the Council.

               2.

               Second plea in law, alleging the absence of any legal basis for the contested regulation
               In the applicant’s view, the contested implementing regulation has no legal basis as Regulation No 961/2010 was annulled by the General Court by its judgment of 7 December 2011 in Case T-562/10 in so far as it concerns the applicant; despite the fact that the effects of Regulation No 961/2010 were maintained for a period of two months, that regulation cannot, with regard to the applicant, constitute an effective legal basis for the adoption of an implementing regulation.

               3.

               Third plea in law, alleging infringement of Article 266 TFEU
               The applicant further submits that the Council did not adopt any measures to give effect to the judgment of the General Court of 7 December 2011 in Case T-562/10; instead it renewed the applicant’s inclusion in the sanctions lists, contrary to the Court’s judgment.

               4.

               Fourth plea in law, alleging the absence of any basis for the applicant’s inclusion in the sanctions lists
               The applicant submits, moreover, that the reasons given by the Council for the inclusion of the applicant in the sanctions lists are largely inapplicable and do not justify the applicant’s inclusion in the sanctions lists.

               5.

               Fifth plea in law, alleging infringement of the applicant’s fundamental right to respect for property
               The applicant’s renewed inclusion in the sanctions lists represents unjustified interference with its fundamental right to property as the applicant cannot, given the Council’s inadequate reasoning, understand on what grounds it has been included in the sanctions lists. The applicant’s renewed inclusion in the sanctions lists is in addition based on a manifestly erroneous assessment by the Council of the applicant’s situation and of its activities and is, moreover, disproportionate.

      (1)  Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 19, p. 22).

      (2)  Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2012 L 19, p. 1).

      (3)  2010/413/CFSP: Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).

      (4)  Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1).


title: Case C-369/08: Action brought on 12 August 2008 — Commission of the European Communities v Federal Republic of Germany

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/23

         Action brought on 12 August 2008 — Commission of the European Communities v Federal Republic of Germany
   (Case C-369/08)
   (2008/C 285/37)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa and P. Dejmek, acting as Agents)

      Defendant: Federal Republic of Germany
   Form of order sought

               —

               declare that Point 2.1 of Annex VIIIb to the Straßenverkehrszulassungsordnung (German Regulation on the Entry into Service of Motor Vehicles) (‘the StVZO’) infringes Article 43 EC in conjunction with Article 48 EC;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   Under the first paragraph of Article 43 EC, all rules which restrict the freedom of establishment of nationals of a Member State in the territory of another Member State are prohibited. It follows from Article 48 EC that the Treaty provisions on the freedom of establishment are the same for companies having their registered office, central administration or principal place of business within the Community as they are for natural persons who are nationals of Member States. The provisions on equal treatment prohibit not only overt discrimination by reason of nationality or, in the case of companies, their registered office, but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.
   According to Point 2.1 of Annex VIIIb to the StVZO, an inspection organisation for carrying out technical inspections or safety checks and the inspection and approval of motor vehicles can be recognised in Germany only if it is constituted exclusively by at least 60 independent motor vehicle experts engaged in that activity as their main profession; in the defined area within which the organisation has received recognition, as many inspection engineers must be established as are necessary to ensure a ratio of at least one, and at most 30, inspection engineers for every 100 000 motor vehicles and trailers registered in that area.
   It is the view of the Commission that this requirement constitutes an inadmissible restriction on the right of establishment which infringes Article 43 EC or, alternatively, Article 43 EC in conjunction with Article 48 EC. The requirement that an organisation be made up exclusively of a minimum number of independent experts engaged in the activity in question as their main profession represents a qualitative restriction, inasmuch as undertakings wishing to carry out the activity in question would be obliged to adopt a particular structure. In particular, this requirement excludes dependent employees, who cannot become members of such an organisation. Moreover, the disputed provision also represents a quantitative restriction because it prescribes a minimum number of members for these inspection organisations. These preconditions governing recognition make it impossible for any economic operator which is lawfully established in another Member State and has a different legal form or internal structure to provide technical inspection services in Germany. Finally, the requirement that, within the area of recognition, as many inspection engineers must be established as are necessary to ensure a ratio of at least one inspection engineer for every 100 000 motor vehicles and trailers there registered amounts to a restriction that is contrary to Article 43 EC (in conjunction with Article 48 EC), because that criterion in particular places at a disadvantage legal persons already established in other Member States and whose inspection engineers are not necessarily established in the area of recognition.
   In the present case, the Commission claims, neither Article 45 EC nor Article 46 EC is relevant.
   According to Article 45 EC, the Treaty provisions on freedom of establishment do not apply to activities which in a Member State are connected, even occasionally, with the exercise of official authority. The criteria which emerge from settled case-law for establishing cases of direct and specific exercise of official authority are, however, not fulfilled with regard to the activities of the inspection organisations, in particular with regard to the carrying out of technical inspections. Neither the fact that the inspection organisations decide on the granting or removal of roadworthiness certificates nor the State supervision of those organisations proves that they exercise official authority. Firstly, the final decision on the refusal of a roadworthiness certificate can be made only by the competent body (that is, the licensing authority) in the corresponding federal Land and not by the inspection organisation. The inspection organisation, rather, assists and plays a preparatory role vis-à-vis the licensing authority. Secondly, the conclusion may not be drawn from the fact that the State supervises certain organisations that all tasks performed by such organisations are connected with the exercise of official authority. Even if isolated tasks of the inspection organisation were to be considered as amounting to an exercise of official authority, the exclusion of the technical inspections of motor vehicles from the application of the freedom of establishment would go too far and would extend significantly beyond the purpose of the derogation provided for by Article 45 EC. Vehicle inspection is a purely technical task which, although it may have legal consequences, cannot be regarded as constituting a direct exercise of official authority.
   So far as concerns Article 46 EC, which provides for the possibility of justification for unequal treatment on grounds of public policy, public security or public health, the case-law of the Court of Justice provides that, in order for reliance to be placed on this ground of justification, there must be a genuine and sufficiently serious threat affecting one of the aforementioned fundamental interests. As the German authorities have not provided evidence of any such threat, the conditions for invoking the derogating rule under Article 46 EC have not been met. The Commission is satisfied that the objective being pursued by the measures under challenge, namely the maintenance of road safety, could also be achieved by less restrictive measures, such as, for instance, an appropriate monitoring system for all inspection engineers and inspection organisations in Germany.