title: Judgment of the Court (Second Chamber) of 29 April 1999 in Case C-136/97 (reference for a preliminary ruling by the VAT and Duties Tribunal, Manchester Tribunal Centre): Norbury Developments Ltd v Commissioners of Customs & Excise (VAT - Sixth Directive - Transitional provisions - Maintenance of exemptions - Supply of building land)

text:
17.7.1999                EN                     Official Journal of the European Communities                                            C 204/9
                  JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                          (Sixth Chamber)                                                          (Second Chamber)
                          of 29 April 1999                                                          of 29 April 1999
in Case C-342/96 Kingdom of Spain v Commission of the                      in Case C-136/97 (reference for a preliminary ruling
                    European Communities (1)                               by the VAT and Duties Tribunal, Manchester Tribunal
                                                                           Centre): Norbury Developments Ltd v Commissioners of
                                                                                Customs & Excise (1)
(State aid — Application of the statutory interest rate to
agreements for the repayment of wages and the payment of
        debts in respect of social security contributions)                 (VAT — Sixth Directive — Transitional provisions —
                                                                              Maintenance of exemptions — Supply of building land)
                           (1999/C 204/16)
                                                                                (1999/C 204/17)
                    (Language of the case: Spanish)
                                                                                (Language of the case: English)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                           In Case C-136/97: reference to the Court under Article 177 of
In Case C-342/96: Kingdom of Spain (Agent: Paloma Plaza                    the EC Treaty by the VAT and Duties Tribunal, Manchester
Garcia) v Commission of the European Communities (Agents:                  Tribunal Centre (United Kingdom), for a preliminary ruling in
Paul F. Nemitz and Fernando Castillo de la Torre) — application            the proceedings pending before that court between Norbury
under Article 173 of the EC Treaty for annulment of Com-                   Developments Ltd and Commissioners of Customs & Excise,
mission Decision 97/21/ECSC, EC of 30 July 1996 on State                   on the interpretation of Article 28(3)(b) of the Sixth Council
aid granted in favour of Compañı́a Española de Tubos por                 Directive (77/388/EEC) of 17 May 1977 on the harmonisation
Extrusión SA, located in Llodio, Alava (OJ 1997 L 8, p. 14)               of the laws of the Member States relating to turnover taxes —
— the Court (Sixth Chamber), composed of: G. Hirsch                        Common system of value added tax: uniform basis of assess-
(Rapporteur), President of the Second Chamber, acting for                  ment (OJ 1977 L 145, p. 1), read in conjunction with point
the President of the Sixth Chamber, G.F. Mancini and R.                    16 of Annex F thereto — the Court (Second Chamber),
Ragnemalm, Judges; Advocate General: A. La Pergola, Regis-                 composed of G. Hirsch (Rapporteur), President of the Chamber,
trar: H.A. Rühl, Principal Administrator, has given a judgment             G.F. Mancini and R. Schintgen, Judges; N. Fennelly, Advocate
on 29 April 1999, in which it:                                             General; D. Louterman-Hubeau, Principal Administrator, for
                                                                           the Registrar, has given a judgment on 29 April 1999, in
                                                                           which it has ruled:
1. Annuls Commission Decision 97/21/ECSC, EC of 30 July
     1996 on State aid granted in favour of Compañia Española de
     Tubos por Extrusión SA in so far as it declares incompatible
     with Article 92 of the EC Treaty the measures adopted by the          In relation to the supply of building land, a Member State is entitled
     Kingdom of Spain in favour of Compañia Española de Tubos            to exempt that supply under Article 28(3)(b) of the Sixth Council
     por Extrusión SA inasmuch as the interest rate of 9 % charged        Directive (77/388/EEC) of 17 May 1977 on the harmonisation of
     on the sums owed by the latter to the Fondo de Garantı́a Salarial     the laws of the Member States relating to turnover taxes — Common
    and to the Social Security Fund is lower than the prevailing           system of value added tax: uniform basis of assessment, read in
    market rates;                                                          conjunction with point 16 of Annex F thereto, notwithstanding the
                                                                           fact that, on the one hand, it has since the adoption of that directive
                                                                           introduced an election to waive the exemption from value added tax
2. Dismisses the remainder of the application;                             in respect of such supplies and, on the other hand, it has reduced the
                                                                           material scope of the exemption applicable to such supplies so that
                                                                           some previously exempt supplies are now subject to value added tax.
3. Orders each party to bear its own costs.
(1) OJ C 388 of 21.12.1996.                                                (1) OJ C 166 of 31.5.1997.


title: Case T-274/09: Action brought on 14 July 2009 — Deutsche Bahn v OHIM — DSB (IC4)

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/38

         Action brought on 14 July 2009 — Deutsche Bahn v OHIM — DSB (IC4)
   (Case T-274/09)
   2009/C 220/80
   Language in which the application was lodged: German

      Parties

      Applicant: Deutsche Bahn AG (Berlin, Germany) (represented by: E. Haag, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: DSB (Copenhagen, Denmark)

      Form of order sought

               —

               Annul the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 30 April 2009 and the decision of the Opposition Division of 26 July 2007;

               —

               order OHIM to pay all the costs of the proceedings, including those incurred during the appeal and opposition proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: DSB

      Community trade mark concerned: the word mark ‘IC4’ for goods in Class 39 (application No 4 255 411)

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

      Mark or sign cited in opposition: the word mark ‘ICE’ for goods and services in Classes 6, 7, 9, 11, 12, 19, 37, 38, 39, 41 and 42 (Community trade mark No 170 605) and the German figurative mark ‘IC’ for services in Classes 39 and 42 (No 1 009 258)

      Decision of the Opposition Division: rejection of the opposition

      Decision of the Board of Appeal: dismissal of the appeal

      Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1) since there is a likelihood of confusion between the opposing marks.

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


title: Judgment of the Court of 14 September 1999 in Case C-249/97 (reference for a preliminary ruling from the Landesgericht Linz): Gabriele Gruber v Silhouette International Schmied GmbH & Co. KG (Equal pay for men and women - Payments on termination of employment - Indirect discrimination)

text:
C 352/6                 EN                      Official Journal of the European Communities                                           4.12.1999
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                                                                                of 14 September 1999
                          (First Chamber)
                                                                           in Case C-249/97 (reference for a preliminary ruling from
                                                                           the Landesgericht Linz): Gabriele Gruber v Silhouette
                      of 9 September 1999                                             International Schmied GmbH & Co. KG (1)
                                                                           (Equal pay for men and women — Payments on termination
in Case C-257/98 P: Arnaldo Lucaccioni v Commission of
                                                                                of employment — Indirect discrimination)
                 the European Communities (1)
                                                                                (1999/C 352/12)
                (Appeal — Action for damages)
                                                                                (Language of the case: German)
                          (1999/C 352/11)
                                                                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                    (Language of the case: French)
                                                                           In Case C-249/97: reference to the Court under Article 177 of
                                                                           the EC Treaty (now Article 234 EC) from the Landesgericht
                                                                           (Regional Court) Linz (Austria) for a preliminary ruling in the
                                                                           proceedings pending before that court between Gabriele
(Provisional translation; the definitive translation will be published     Gruber and Silhouette International Schmied GmbH & Co. KG
                   in the European Court Reports)                          — on the interpretation of Article 119 of the EC Treaty
                                                                           (Articles 117 to 120 of the EC Treaty have been replaced by
                                                                           Articles 136 EC to 143 EC) —the Court, composed of:
In Case C-257/98 P: Arnaldo Lucaccioni, a former official of               G.C. Rodrı́guez Iglesias, President, P.J.G. Kapteyn (Rapporteur),
the Commission of the European Communities, residing in                    J.-P. Puissochet, G. Hirsch and P. Jann (Presidents of Cham-
Paris, represented by Georges Vandersanden, Laure Levi and                 bers), J.C. Moitinho de Almeida, C. Gulmann, J.L. Murray,
Olivier Eben, of the Brussels Bar, with an address for service in          D.A.O. Edward, H. Ragnemalm, L. Sevón, M. Wathelet and
Luxembourg at the offices of Fiduciaire Myson SARL, 30 Rue                 R. Schintgen, Judges; P. Léger, Advocate General; H.A. Rühl,
de Cessange — appeal against the judgment of the Court of                  Principal Administrator, for the Registrar, has given a judgment
First Instance (Second Chamber) of 14 May 1998 in Case                     on 14 September 1999, in which it has ruled:
T-165/95 Lucaccioni v Commission[1998] ECR-SC I-A-203
and II-627, seeking to have that judgment set aside, the other             1. Article 119 of the EC Treaty (Articles 117 to 120 of the EC
party to the proceedings being Commission of the European                       Treaty have been replaced by Articles 136 EC to 143 EC) does
Communities (Agent: Julian Currall, assisted by Jean-Luc                        not preclude national legislation under which a termination
Fagnart) — the Court (First Chamber), composed of: P. Jann,                     payment is granted to workers who end their employment
President of the Chamber, D.A.O. Edward and L. Sevón                           relationship prematurely in order to take care of their children
(Rapporteur), Judges; S. Alber, Advocate General; H.A. Rühl,                    owing to a lack of child-care facilities for them, where that
Principal Administrator, for the Registrar, has given a judgment                payment is reduced in relation to that received, for the same
on 9 September 1999, in which it:                                               actual period of employment, by workers who give notice of
                                                                                resignation for an important reason related to working conditions
                                                                                in the undertaking or to the employer’s conduct.
1. Dismisses the appeal;
                                                                           2. The fact that in the Member State concerned nurseries are mostly
2. Orders Mr Lucaccioni to pay the costs.                                       run by the public services or with their financial support does not
                                                                                affect the answer given to the first question.
(1) OJ C 278 of 5.9.1998.
                                                                           (1) OJ C 271 of 6.9.1997.


title: Judgment of the Court of 5 November 2002 in Case C-325/00: Commission of the European Communities v Federal Republic of Germany (Free movement of goods — Measures having equivalent effect — Label of origin and quality)

text:
C 323/16                 EN                        Official Journal of the European Communities                                        21.12.2002
            directive in relation to group water supplies, Ireland has                         JUDGMENT OF THE COURT
            failed to fulfil its obligations under Articles 7(6), 18 and
            19 of that directive;
2.    Orders Ireland to pay the costs.                                                                  (Sixth Chamber)
( 1) OJ C 302 of 21.10.2002.
                                                                                of 7 November 2002
                                                                              in Case C-333/00 (Reference for a preliminary ruling from
                                                                                the Tarkastuslautakunta): Eila Päivikki Maaheimo ( 1)
                  JUDGMENT OF THE COURT
                                                                              (Regulation (EEC) No 1408/71 — Family benefits — Home
                        of 5 November 2002
                                                                                child-care allowance — Residence condition for children)
in Case C-325/00: Commission of the European Communi-
             ties v Federal Republic of Germany (1)
                                                                                (2002/C 323/19)
(Free movement of goods — Measures having equivalent
               effect — Label of origin and quality)
                                                                                (Language of the case: Finnish)
                            (2002/C 323/18)
                    (Language of the case: German)                            (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-325/00, Commission of the European Communities
(Agents: J. C. Schieferer and C. Schmidt) v Federal Republic of               In Case C-333/00: Reference to the Court under Article 234
Germany (Agent: W.-D. Plessing, acting as Agent, assisted by                  EC by the Tarkastuslautakunta (Finland) for a preliminary
M. Loschelder): Application for a declaration that by awarding                ruling in the proceedings pending before that court by Eila
the quality label ‘Markenqualität aus deutschen Landen’ (quality              Päivikki Maaheimo, on the interpretation of Articles 4(1)(h),
label for produce made in Germany) to finished products of a                  10(a), 73 and 75 of Council Regulation (EEC) No 1408/71 of
certain quality produced in Germany, the Federal Republic of                  14 June 1971 on the application of social security schemes to
Germany has failed to fulfil its obligations under Article 30 of              employed persons, to self-employed persons and to members
the EC Treaty (now, after amendment, Article 28 EC), the                      of their families moving within the Community, as amended
Court, composed of: G. C. Rodríguez Iglesias, President,                      and updated by Council Regulation (EC) No 118/97 of
J.-P. Puissochet and M. Wathelet (Presidents of Chambers),                    2 December 1996 (OJ 1997 L 28, p. 1), the Court (Sixth
C. Gulmann (Rapporteur), A. La Pergola, P. Jann, V. Skouris,                  Chamber), composed of: R. Schintgen, President of the Second
F. Macken, N. Colneric, S. von Bahr and J. N. Cunha Rodrigues,                Chamber, acting for the President of the Sixth Chamber,
Judges; F. G. Jacobs, Advocate General; R. Grass, Registrar, has              V. Skouris, F. Macken, N. Colneric (Rapporteur) and J. N. Cunha
given a judgment on 5 November 2002, in which it:                             Rodrigues, Judges; F. G. Jacobs, Advocate General; L. Hewlett,
                                                                              Administrator, for the Registrar, has given a judgment on
                                                                              7 November 2002, in which it has ruled:
1.    Declares that, by awarding the quality label ‘Marenqualität aus
      deutschen Landen’ (quality label for produce made in Germany)
      to finished products of a certain quality made in Germany, the
      Federal Republic of Germany has failed to fulfil its obligations        1.    A benefit such as the home child-care allowance provided for by
      under Article 30 of the EC Treaty (now, after amendment,                      the Laki lasten kotihoidon ja yksityisen hoidon tuesta (Law
      Article 28 EC);                                                               No 1128/96 on home child-care allowance and private child-
                                                                                care allowance) is a family benefit within the meaning of
2.    Orders the Federal Republic of Germany to pay the costs.                      Article 4(1)(h) of Council Regulation (EEC) No 1408/71 of
                                                                                14 June 1971 on the application of social security schemes to
                                                                                employed persons, to self-employed persons and to members of
( 1) OJ C 316 of 4.11.2000.                                                         their families moving within the Community, as amended and
                                                                                updated by Council Regulation (EC) No 118/97 of 2 December
                                                                                1996.


title: Case C-56/99: Reference for a preliminary ruling by the Tribunal Administratif de Paris by decision of 9 December 1998 in the case of Gascogne Limousin Viandes SA v. Office National Interprofessionnel des Viandes, de l'Élevage et de l'Aviculture (OFIVAL)

text:
10.4.1999             EN                 Official Journal of the European Communities                                  C 100/17
     potential risk to public health involved in the event of       Reference for a preliminary ruling by the Tribunal
     their proving to be unreliable, of a registration              Administratif de Paris by decision of 9 December 1998 in
     procedure which necessitates the compilation of a              the case of Gascogne Limousin Viandes SA v. Office
     substantial amount of documentation by the                     National Interprofessionnel des Viandes, de l'EÂlevage et de
     manufacturer, the importer or the distributor and                                  l'Aviculture (OFIVAL)
     which delays the placing of the reagent on the market,
     constitutes a measure having equivalent effect to a                                    (Case C-56/99)
     quantitative restriction on imports which, having                                     (1999/C 100/32)
     regard to its disproportionate nature, is not justified
     on grounds of the protection of health and life of
     humans under Article 36 of the EC Treaty.                      Reference has been made to the Court of Justice of the
                                                                    European Communities by decision of 9 December 1998
                                                                    by the Tribunal Administratif de Paris (Administrative
2. Article 5 of the Decree provides that the
                                                                    Court, Paris), which was received at the Court Registry
     accompanying notice, the primary packaging and the
                                                                    on 19 February 1999, for a preliminary ruling in the case
     external packaging of each reagent are to state the
                                                                    of Gascogne Limousin Viandes SA v. Office National
     registration with the medicinal products agency. The
                                                                    Interprofessionel des Viandes, de l'EÂlevage et de
     Commission       considers   that    that    requirement
                                                                    l'Aviculture (OFIVAL) on the following question:
     constitutes an unjustified restriction on intra-
     Community trade within the meaning of Article 30 of
     the EC Treaty.                                                 Do the provisions in Article 40 of the Treaty of 25 March
                                                                    1957 preclude the adoption of aid measures benefiting
(1) JORF of 26.4.1996, p. 6386.                                     products distinguished according to criteria established at
                                                                    national level where those products may be marketed in
                                                                    all of the Community Member States?
                                                   COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           Rechtsanwalt, Hamburg, with an address for service in
                                                                    Luxembourg at the Chambers of Marc Baden, 34b Rue
                     of 11 February 1999                            Philippe II, v. Commission of the European Communities
in Case T-86/96, Arbeitsgemeinschaft Deutscher Luft-                (Agents: Anders Jessen, Paul Nemitz, Hans-Jürgen Rabe
fahrt-Unternehmen v. Commission of the European                     and Georg M. Berrisch) Ð application for annulment of
                        Communities (1)                             Commission Decision 96/369/EC of 13 March 1996
                                                                    concerning fiscal aid given to German airlines in the form
(State aid Ð Air transport Ð Tax measure Ð Action for               of a depreciation facility (OJ L 146, 20.6.1996, p. 42) Ð
                  annulment Ð Inadmissible)                         the Court of First Instance (Fifth Chamber, Extended
                                                                    Composition), composed of: J. D. Cooke, President, R.
                       (1999/C 100/33)
                                                                    García-Valdecasas, P. Lindh, J. Pirrung and M. Vilaras,
                                                                    Judges; J. Palacio GonzaÂlez, Administrator, for the
                                                                    Registrar, has given a judgment on 11 February 1999, in
                (Language of the case: German)                      which it:
In Case T-86/96: Arbeitsgemeinschaft Deutscher Luftfahrt-           1. Dismisses the action as inadmissible.
Unternehmen, established in Bonn and comprising the
following members: Aero Lloyd Flugreisen GmbH & Co.
Luftverkehrs-KG, established in Oberursel (Germany), Air
Berlin GmbH & Co. Luftverkehrs KG, established in                   2. Orders the applicants jointly and severally to pay the
Berlin, Condor Flugdienst GmbH, established in                           costs.
Kelsterbach (Germany), Germania Fluggesellschaft mbH,
established in Berlin, Hapag-Lloyd Fluggesellschaft mbH,
                                                                    (1) OJ C 233, 10.8.1996.
established in Langenhagen (Germany), LTU Lufttransport
Unternehmen GmbH & Co. KG, established in Düsseldorf
(Germany), and Hapag-Lloyd Fluggesellschaft mbH,
established in Langenhagen, represented by Gerrit Schohe,


title: ORDER OF THE COURT OF FIRST INSTANCE of 11 July 1997 in Case T-16/97: Bruno Chauvin v. Commission of the European Communities (Officials - Judgment of the Court of First Instance - Application for reclassification in grade - Objection of inadmissibility - Material new fact - Admissibility)

text:
C 318/ 14                 EN                  Official Journal of the European Communities                                   18 . 10 . 97
already reimbursed, at Lfrs 180 000, together with any                   of the Rotterdam Bar, with an address for service in
VAT due on that sum.                                                     Luxembourg at the Chambers of M. Loesch, 11 Rue
                                                                         Goethe, against Council of the European Union ( Agents:
(') OJ C 120, 30 . 4 . 1994 .                                            R. Torrent, J. Huber and G. Houttuin ), supported by
                                                                         Commission of the European Communities ( Agent: T. van
                                                                         Rijn ), Kingdom of Spain ( Agent: R. Silva de Lapuerta ),
                                                                         French Republic ( Agents: K. Rispal-Bellanger and, at the
                                                                         hearing of the parties, C. Chavance ) and Italian Republic
                                                                         (Agents: U. Leanza and F. Quadri ) — application for
                                                                         interim measures in the form of an order of the President
       ORDER OF THE COURT OF FIRST INSTANCE
                                                                         of the Court of First Instance enjoining the applicant and
                             of 11 July 1997                             defendant to negotiate a minimum price for imports into
in Case T-16/97: Bruno Chauvin v. Commission of the                      the Community of rice originating in the Netherlands
                       European Communities (')                          Antilles, to replace the tariff quotas introduced by Council
                                                                         Regulation ( EC ) No 1036/97 of 2 June 1997 introducing
(Officials — Judgment of the Court of First Instance —                   safeguard measures in respect of imports of rice
Application for reclassification in grade — Objection of                 originating in the overseas countries and territories ( OJ
      inadmissibility — Material new fact — Admissibility)               L 151 , 10 . 6 . 1997, p. 8 ), and to submit their conclusions
                                97/C 318/27 )                            to him within seven days — the President of the Court of
                                                                         First Instance made an order on 15 July 1997, the
                                                                         operative part of which is as follows:
                   (Language of the case: French)
In Case T-16/97: Bruno Chauvin, an official of the                       1 . The Kingdom of Spain, the French Republic, the
Commission of the European Communities, residing in                          Italian Republic and the Commission are granted leave
Brussels, represented by Nicolas Lhoëst, of the Brussels                     to intervene in support of the defendant in the
Bar, with an address for service in Luxembourg at the                        interlocutory proceedings.
office of Fiduciaire Myson sari, 30 Rue de Cessange, v.
Commission of the European Communities ( Agents :
Florence Clotuche and Christine Berardis-Kayser ) —                      2 . The application for interim measures is dismissed.
application for annulment of the Commission's decision of
18 June 1996 rejecting the applicant's request for a review
                                                                         3.   Costs are reserved.
of his classification in grade — the Court of First Instance
( First Chamber), composed of: B. Vesterdorf, President;
C. P. Briët and A. Potocki, Judges; H. Jung, Registrar,
made an order on 11 July 1997, the operative part of
which is as follows :
1 . The application is dismissed as inadmissible.                            ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 18 July 1997
2. The parties are ordered to bear their own costs.
                                                                         in Case T-180/95 : Nutria AE v. Commission of the
( ] ) OJ C 74, 8 . 3 . 1997.                                                                European Communities ( 1 )
                                                                         (Tendering procedure for the free supply of olive oil to the
                                                                         people of Georgia and Armenia — Damage alleged by the
                                                                         successful tenderer as a result of a delay in the collection
                                                                         of the olive oil by the carrier designated by the
                                                                         Commission       —   Action     to  establish non-contractual
                  ORDER OF THE PRESIDENT                                 liability — Contractual origin of the Commission 's
           OF THE COURT OF FIRST INSTANCE                                obligation on which the action is based — Absence of any
                             of 15 July 1997                             arbitration clause within the meaning of Article 181 of the
                                                                         EC Treaty — Clear lack of jurisdiction on the part of the
in Case T-l 79/97 R: Government of the Netherlands
                                                                                Court of First Instance)
           Antilles v. Council of the European Union
                                                                                ( 97/C 318/29 )
(Association of the overseas countries and territories —
Safeguard measure — Interlocutory proceedings —
     Application for interim measures — Urgency — None)                                   (Language of the case: Greek)
                              ( 97/C 318/28 )
                                                                         In Case T-180/95 , Nutria AE, established in Athens,
                   (Language of the case: Dutch)                         represented by Konstantinos Adamantopoulos, of the
                                                                         Athens Bar, with an address for service in Luxembourg at
In Case. T-179/97 R, Government of the Netherlands                       the Chambers of Arsène Kronshagen, 12 Boulevard de la
Antilles, represented by P. V. F. Bos and M. M. Slotboom,                Foire, against Commission of the European Communities


title: Judgment of the Court of First Instance of 19 September 2001 in Case T-119/00: Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Shape of a product for washing machines or dishwashers — Three-dimensional mark — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
5.1.2002               EN                       Official Journal of the European Communities                                      C 3/27
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                     of 19 September 2001                                                       of 19 September 2001
in Case T-118/00: Procter & Gamble Company v Office                        in Case T-119/00: Procter & Gamble Company v Office
for Harmonisation in the Internal Market (Trade Marks                      for Harmonisation in the Internal Market (Trade Marks
                    and Designs) (OHIM) (1)                                                    and Designs) (OHIM) (1)
(Community trade mark — Shape of a product for washing                     (Community trade mark — Shape of a product for washing
machines or dishwashers — Three-dimensional mark —                         machines or dishwashers — Three-dimensional mark —
Absolute ground for refusal — Article 7(1)(b) of Regulation                Absolute ground for refusal — Article 7(1)(b) of Regulation
                          (EC) No 40/94)                                                             (EC) No 40/94)
                           (2002/C 3/45)                                                              (2002/C 3/46)
                  (Language of the case: English)                                            (Language of the case: English)
In Case T-118/00: Procter & Gamble Company, established in                 In Case T-119/00: Procter & Gamble Company, established in
Cincinnati, Ohio (United States of America), represented by                Cincinnati, Ohio (United States of America), represented by
C.J.J.C. van Nispen and G. Kuipers, lawyers, with an address               C.J.J.C. van Nispen and G. Kuipers, lawyers, with an address
for service in Luxembourg, against Office for Harmonisation                for service in Luxembourg, against Office for Harmonisation
in the Internal Market (Trade Marks and Designs) (OHIM)                    in the Internal Market (Trade Marks and Designs) (OHIM)
(Agents: A. von Mühlendahl, D. Schennen and C. Røhl Søberg)                (Agents: A. von Mühlendahl, D. Schennen and C. Røhl Søberg)
— application brought against the decision of the First Board              — application brought against the decision of the First Board
of Appeal of the Office for Harmonisation in the Internal                  of Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 3 March 2000 (Case                     Market (Trade Marks and Designs) of 29 February 2000 (Case
R-516/1999-1), which was notified to the applicant on                      R-519/1999-1), which was notified to the applicant on
7 March 2000 — the Court of First Instance (Second Chamber),               3 March 2000 — the Court of First Instance (Second Chamber),
composed of A.W.H. Meij, President, A. Potocki and J. Pirrung,             composed of A.W.H. Meij, President, A. Potocki and J. Pirrung,
Judges; D. Christensen, Administrator, for the Registrar, has              Judges; D. Christensen, Administrator, for the Registrar, has
given a judgment on 19 September 2001, in which it:                        given a judgment on 19 September 2001, in which it:
1.    Dismisses the action;                                                1.    Dismisses the action;
2.    Orders the parties to bear their own costs.                          2.    Orders the parties to bear their own costs.
(1) OJ C 192 of 8.7.2000.                                                  (1) OJ C 192 of 8.7.2000.


title: Case C-539/11: Judgment of the Court (Fourth Chamber) of 26 September 2013 (request for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione Siciliana — Italy) — Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara (Articles 49 TFEU and 56 TFEU — Freedom of establishment — Public health — Opticians — Regional legislation making the establishment of new opticians’ shops subject to authorisation — Demographic and geographical limitations — Justification — Appropriateness for attaining the objective pursued — Coherency — Proportionality)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/13

         Judgment of the Court (Fourth Chamber) of 26 September 2013 (request for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione Siciliana — Italy) — Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara
   (Case C-539/11) (1)

   (Articles 49 TFEU and 56 TFEU - Freedom of establishment - Public health - Opticians - Regional legislation making the establishment of new opticians’ shops subject to authorisation - Demographic and geographical limitations - Justification - Appropriateness for attaining the objective pursued - Coherency - Proportionality)
   2013/C 344/20
   Language of the case: Italian

      Referring court

   Consiglio di Giustizia Amministrativa per la Regione Siciliana

      Parties to the main proceedings

      Applicant: Ottica New Line di Accardi Vincenzo

      Defendant: Comune di Campobello di Mazara

      Intervener: Fotottica Media Visione di Luppino Natale Fabrizio e. C. s.n.c.

      Re:

   Request for a preliminary ruling — Consiglio di Giustizia Amministrativa per la Regione siciliana — Interpretation of Articles 49 and 56 TFEU and of Articles 2(2)(f), 4(8) and 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) — Regional legislation under which authorisation to establish new opticians’ practices is made conditional upon there being only one such practice for every 8 000 inhabitants and a minimum distance of 300 metres between one practice and the next — Restriction on the freedom to provide services — Overriding reasons in the public interest — Protection of health — Proportionality

      Operative part of the judgment

   Article 49 TFEU must be interpreted as not precluding regional legislation, such as that at issue in the main proceedings, which imposes restrictions on the grant of authorisation for the establishment of a new optician’s shop, by providing that:

               —

               in each geographical area, only one optician’s shop may be established, in principle, for every 8 000 residents, and

               —

               each new optician’s shop must, in principle, be a minimum distance of 300 metres from an existing optician’s shop,

         provided that the competent authorities use appropriately, in accordance with transparent and objective criteria, the powers made available under the legislation concerned, with a view to attaining, in a coherent and systematic manner, the objectives pursued by that legislation relating to the protection of public health throughout the given territory, which is a matter for the national court to assess.

      (1)  OJ C 370, 17.12.2011.


title: Case C-264/17: Request for a preliminary ruling from the Finanzgericht Münster (Germany) lodged on 17 May 2017 — Harry Mensing v Finanzamt Hamm

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/17

         Request for a preliminary ruling from the Finanzgericht Münster (Germany) lodged on 17 May 2017 — Harry Mensing v Finanzamt Hamm
   (Case C-264/17)
   (2017/C 283/24)
   Language of the case: German

      Referring court

   Finanzgericht Münster

      Parties to the main proceedings

      Applicant: Harry Mensing

      Defendant: Finanzamt Hamm

      Questions referred

               1.

               Is Article 316(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) to be interpreted as meaning that taxable dealers may apply the margin scheme also to the supply of works of art supplied to the taxable dealer within the Community by their creators or their successors in title where such creators or successors in title are not persons referred to in Article 314 of Directive 2006/112?

               2.

               If the answer to Question 1 is in the affirmative: does Article 322(b) of Directive 2006/112 require that the dealer be denied the right to deduct input tax paid on the intra-Community acquisition of works of art, even if there is no equivalent provision under national law?

      (1)  OJ 2006 L 347, p. 1.


               24.3.2007

               EN

               Official Journal of the European Union

               C 69/2

         Taking of the oath by the new members of the Court of Justice
   (2007/C 69/02)
   Appointed Judges at the Court of Justice of the European Communities by decision of the Representatives of the Governments of the Member States of the European Union of 1 January 2007 (1), for the period from 1 January 2007 to 6 October 2012 and the period from 1 January 2007 to 6 October 2009, respectively, Mr Arabadjiev and Ms Toader took the oath before the Court on 12 January 2007.

      (1)  OJ L 1, 4.1.2007, p. 18.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 14 May 1998 in Case T-21/97: Sofia Goycoolea v. Commission of the European Communities (Temporary staff - False information given in the application for appointment - Article 50(1) of the Conditions of Employment of Other Servants - Third subparagraph of Article 5(1) of the Staff Regulations - Conditions governing the form in which complaints are to be made)

text:
4.7.98                EN                 Official Journal of the European Communities                                 C 209/39
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           Currall and Rosemary Caudwell), supported by National
                       of 14 May 1998                               Association of Licensed Opencast Operators, having its
                                                                    registered office in Swindon (United Kingdom),
in Case T-21/97: Sofia Goycoolea v. Commission of the               represented by Nicholas Green and Mark Hoskins,
                  European Communities (1)                          Barristers, instructed by David Wilson, Alexander Dowie
(Temporary staff Ð False information given in the                   and Christopher Jobson, Solicitors, with an address for
application for appointment Ð Article 50(1) of the                  service in Luxembourg at the Chambers of Victor Gillen,
Conditions of Employment of Other Servants Ð Third                  13 Rue Aldringen Ð application for the annulment of the
subparagraph of Article 5(1) of the Staff Regulations Ð             Commission's implied decision refusing to reject the
Conditions governing the form in which complaints are to            complaint against the applicant lodged by the National
                           be made)                                 Association of Licensed Opencast Operators on 15 June
                                                                    1994 Ð the Court of First Instance (Third Chamber),
                        (98/C 209/82)                               composed of: V. Tiili, President, C. P. BrieÈt and A.
                                                                    Potocki, Judges; H. Jung, Registrar, has made an order on
               (Language of the case: French)                       29 April 1998, the operative part of which is as follows:
In Case T-21/97: Sofia Goycoolea, a former member of                1. The application is dismissed.
the temporary staff of the Commission of the European
Communities, represented by Jean-NoeÈl Louis, Thierry
Demaseure and Ariane Tornel, of the Brussels Bar, with an           2. The applicant shall pay the costs in their entirety,
address for service in Luxembourg at the offices of                     including those of the intervener.
Fiduciaire Myson SARL, 30 Rue de Cessange, v.
Commission of the European Communities (Agents: Julian              (1) OJ C 386, 31.12.1994.
Currall and Florence Duvieusart-Clotuche) Ð application
for annulment of the decision of the authority empowered
to conclude contracts of employment within the
Commission of 7 May 1996 terminating the applicant's
contract as a member of the temporary staff Ð the Court
of First Instance (Fifth Chamber), composed of: J. Azizi,
President, and R. García-Valdecasas and M. Jaeger,                  Action brought on 6 April 1998 by Danagro Adviser A/S,
Judges; A. Mair, Administrator, for the Registrar, has              Plunkett Foundation and Irish Agri-Food Development
given a judgment on 14 May 1998, in which it:                       Ltd; having formed a joint venture under Danish law
                                                                    entitled Ecord Consortium for Russian Cooperation,
                                                                       against the Commission of the European Communities
1. Dismisses the application.
                                                                                (Case T-60/98)
2. Orders the parties to bear their own costs.                                               (98/C 209/84)
(1) OJ C 108, 5.4.1997.                                                             (Language of the case: French)
                                                                    An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 6 April 1998
                                                                    by Danagro Adviser A/S, established at Glostrup
     ORDER OF THE COURT OF FIRST INSTANCE                           (Denmark), Plunkett Foundation, established at Long
                       of 29 April 1998                             Hanborough (United Kingdom) and Irish Agri-Food
                                                                    Development Ltd; established at Dublin (Ireland), having
in   Case T-367/94: British Coal Corporation                v.
                                                                    formed a joint venture under Danish law entitled Ecord
       Commission of the European Communities (1)
                                                                    Consortium for Russian Cooperation, represented by Mia
(ECSC Treaty Ð Action for annulment of an implied                   Declercq and Kurt Haegeman, of the Brussels Bar, with an
decision of refusal Ð Action manifestly lacking any                 address for service in Luxembourg at the chambers of
                      foundation in law)                            Marc Loesch, 11 Rue Goethe.
                        (98/C 209/83)
                                                                    The applicant claims that the Court should:
               (Language of the case: English)
                                                                    Ð annul the Commission's decision of 17 March 1998
In Case T-367/94: British Coal Corporation, having its                  rejecting the applicants' tender, submitted in response
registered office in London, represented by David Vaughan               to an invitation to tender by the European
QC, David Lloyd Jones, Barrister, and Cyrus Mehta,                      Commission for a project financed by the TACIS fund
Solicitor, with an address for service in Luxembourg at the             entitled: Russia': Promoting Co-operative Ventures by
Chambers of Loesch & Wolter, 11 Rue Goethe, against                     Independent Farmers', brief title: Independent
Commission of the European Communities (Agents: Julian                  Farmers' Co-ops (Project No FDRUS 9701),


title: Case T-317/02: Action brought on 16 October 2002 by Fédération des Industries Condimentaires de France and Others against Commission of the European Communities

text:
21.12.2002            EN                     Official Journal of the European Communities                                      C 323/37
Action brought on 10 October 2002 by Svend Klitgaard                    Action brought on 16 October 2002 by Fédération des
  against the Commission of the European Communities                    Industries Condimentaires de France and Others against
                                                                                Commission of the European Communities
                        (Case T-315/02)
                                                                                (Case T-317/02)
                        (2002/C 323/61)
                                                                                (2002/C 323/62)
                  (Language of the case: Danish)
                                                                                (Language of the case: French)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              An action against the Commission of the European Communi-
European Communities on 10 October 2002 by Svend                        ties was brought before the Court of First Instance of the
Klitgaard, of Skørping (Denmark), represented by Søren Koll             European Communities on 16 October 2002 by Fédération
Espensen, advokat.                                                      des Industries Condimentaires de France, established in Paris,
                                                                        the Confédération Générale des Producteurs de lait de brebis
                                                                        et des Industriels du Roquefort, established in Millau (France),
                                                                        the Comité Economique Agricole Régional fruits et légumes
The applicant claims that the Court should:                             de Bretagne, established in Morlaix (France) and the Comité
                                                                        Interprofessionnel des Palmipèdes à foie gras, established in
—     Order the defendant to pay to the applicant an amount             Paris, represented by Michel Jacquot and Olivier Prost, avocats.
      totalling EUR 19 867.40 plus interest from 30 April
      2002 and a collection fee of EUR 8 100 or EUR 592,95,
      together with interest thereon from 30 March 2002 until           The applicant claims that the Court should:
      final payment, at the rate offered by the Danish National
      Bank plus 5 %.
                                                                        —     annul the decision of 9 July 2002 terminating the
                                                                              examination procedures concerning obstacles to trade,
                                                                              within the meaning of Council Regulation (EC) No 3286/
                                                                              94, consisting of trade practices maintained by the United
Pleas in law and main arguments                                               States of America in relation to imports of prepared
                                                                              mustard;
The applicant and defendant entered into a contract in                  —     order the Commission to pay the costs.
December 1997 under which the applicant was to provide
assistance in the auditing of a specified number of projects,
coordination of network activities between those projects and
membership of the steering committee for the PLAN project.
                                                                        Pleas in law and main arguments
According to the applicant, the defendant has paid in full the
fees owing to the applicant but the applicant has not obtained          Since 1999 the applicants have been and continue to be
reimbursement of his travel expenses, which total                       subject to the application by the United States of America of a
EUR 19 867,40.                                                          100 % increase in customs duties as a result of the ‘beef
                                                                        hormones’ case before the World Trade Organisation.
The applicant submits that payment of the amount claimed
was a matter agreed on pursuant to the contract entered into            One of the applicants lodged a complaint on the basis of
by the parties, under which the defendant is obligated to pay           Council Regulation (EC) No 3286/94 (1), in particular those
documented travel and subsistence expenses. Moreover, by its            established under the auspices of the World Trade Organis-
conduct and the fact that it has honoured all instalments of            ation. The remaining applicants joined the complainant in that
the fees payable, the defendant has indirectly accepted its             complaint.
obligation to pay positive expenditure as requested by the
applicant.
                                                                        Following that complaint, the Commission decided to open
                                                                        an examination procedure. By the contested decision, the
                                                                        Commission decided to terminate that procedure.
 ---pagebreak--- C 323/38                EN                        Official Journal of the European Communities                                     21.12.2002
In support of their application, the applicants allege infringe-             on 22 October 2002 by Monika Esch-Leonhardt, Frankfurt
ment of Article 3(2) of Regulation No 3286/94 (EC). According                (Germany), Tillmann Frommhold, Karben (Germany), and
to the applicants, the Commission misassessed the definition                 Emmanuel Larue, Frankfurt (Germany), represented by B. Kart-
of ‘obstacle to trade’.                                                      haus, C. Roth and T. Raab-Rhein (lawyers), with an address for
                                                                             service in Luxembourg.
The applicants claim, next, that that misassessment necessarily
implies infringement of Article 2(4) of Regulation No 3286/
94 (EC) as regards assessment of the adverse trade effects                   The applicants claims that the Court should:
arising from the United States measures.
                                                                             1.    declare the inclusion of the Director of Personnel’s letter
The applicants take the view, moreover, that the Commission                        of 4 December 2001 in the applicants’ personal files to
infringed, in its examination of the adverse trade effects, the                    be of no legal effect;
obligation to have regard to the provisions, principles or
practice which govern the right of action under relevant
international rules, contained in Article 10(5) of Regulation                2.    in the alternative, declare void the defendant’s refusal to
                                                                                remove the Director of Personnel’s letter of 4 December
No 3286/94 (EC).
                                                                                2001 from the applicants’ personal files;
The applicants further claim that the Commission, when                       3.    declare void the defendant’s refusal to number the pages
deciding to terminate the procedure, restricted the concept of                     of the personal files in sequence;
interests of the Community to the interests of the complainant
alone, contrary to Article 10 of Regulation No 3286/94 (EC).
                                                                             4.    order the defendant to pay the applicants damages of
                                                                                EUR 1 by way of compensation for non-pecuniary loss;
The applicants also allege breach of the obligation to provide
a statement of reasons, both as regards the analysis of the
obstacles to trade and the interests of the Community,                       5.    as an alternative to claims 1 to 3, order the defendant to
infringement of Article 2(4) and Article 11(1) of Regulation                       remove the Director of Personnel’s letter of 4 December
No 3286/94 (EC) and a manifest error of assessment of                              2001 from the personal files;
the facts. Finally, the applicants allege infringement by the
Commission of the rights of the defence and breach of the
duty to exercise due care.                                                   6.    order the defendant to pay the costs of the proceedings.
( 1) Council Regulation (EC) No 3286/94 of 22 December 1994
     laying down Community procedures in the field of the common
     commercial policy in order to ensure the exercise of the Com-
     munity’s rights under international trade rules.                        Pleas in law and main arguments
                                                                             The applicants, employees of the European Central Bank,
                                                                             complain that a document sent to them by the defendant
                                                                             warning them to refrain in the future from circulating infor-
                                                                             mation about the union via the defendant’s internal e-mail
                                                                             system was included in their respective personal files.
Action brought on 22 October 2002 by Monika Esch-
Leonhardt, Tillmann Frommhold and Emmanuel Larue
               against the European Central Bank
                                                                             The applicants regard the warning itself, and in particular the
                          (Case T-320/02)                                    storage thereof, as a breach of their right to determine what
                                                                             information is placed on the file and an infringement of their
                                                                             right to carry out activities connected with the union. In
                          (2002/C 323/63)                                    addition, the measure amounts to discrimination on account
                                                                             of their union activities.
                    (Language of the case: German)
                                                                             The applicants also submit that their rights have been infringed
                                                                             in that the pages of their personal files have not been numbered
An action against the European Central Bank was brought                      in sequence, with the result that it is not possible to check
before the Court of First Instance of the European Communities               which documents are placed on, or removed from, those files.


title: Case T-53/01: Action brought on 6 March 2001 by Poste Italiane S.p.A. against Commission of the European Communities

text:
C 134/28               EN                     Official Journal of the European Communities                                       5.5.2001
The pleas in law and main arguments are similar to those relied          The applicant submits that the Commission justifies that
on in Case T-93/00 Alessandrini and Others v Commission (2).             decision by alleging that the Paraguayan authorities have
                                                                         expressed reservations about him but that it fails to mention
                                                                         the factual and legal matters of which the applicant should be
                                                                         aware in order, if necessary, to be able to defend his own
(1) OJ 1998 L 293, p. 32.                                                professional conduct.
(2) OJ 2000 C 176, p. 25.
                                                                         The applicant considers that the decision at issue infringes
                                                                         Article 7 of the Staff Regulations since it is contrary to the
                                                                         interest of the service. In his view, the interest of the service
                                                                         specifically requires him to remain in his current post and
                                                                         continue the complex work which has been assigned to him
                                                                         and of which he has already gained sound experience.
                                                                         The applicant further submits that the decision is vitiated by a
Action brought on 6 March 2001 by Juergen Schaefer                       complete failure to state the grounds and has been adopted
  against the Commission of the European Communities                     without the Commission at any time taking account of the
                                                                         views of the party concerned, contrary to the requirements of
                                                                         case-law.
                          (Case T-52/01)
                        (2001/C 134/59)
                   (Language of the case: Spanish)
                                                                         Action brought on 6 March 2001 by Poste Italiane S.p.A.
                                                                             against Commission of the European Communities
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 March 2001 by Juergen Schaefer,                                         (Case T-53/01)
represented by Juan Ramón Iturriagagoitia, lawyer.
                                                                                (2001/C 134/60)
The applicant claims that the Court should:
                                                                                (Language of the case: Italian)
—     annul the Commission’s decision of 12 February 2001
      relating to the applicant’s transfer back from Montevideo          An action against the Commission of the European Communi-
      (Uruguay) to Brussels;                                             ties was brought before the Court of First Instance of the
                                                                         European Communities on 6 March 2001 by Poste Italiane
                                                                         S.p.A., represented by Gian Michele Roberti, Petrus Mathijsen,
—     annul, if appropriate, the Commission’s note of 30 No-             Alessandra Perrazzelli, Elisabetta Rubini and Andrea Sandulli,
      vember 2000 informing the applicant of the decision to             avvocati.
      transfer him back from Montevideo (Uruguay) to Brussels;
                                                                         The applicant claims that the Court should:
—     order the immediate suspension and, if appropriate, the
      subsequent annulment of any procedure initiated with a             —     annul the contested decision
      view to filling the vacancy arising from the order
      transferring the applicant;                                        —     order the Commission to pay the costs.
—     order, if appropriate, the annulment of the corresponding
      appointment of an official to fill the post;                       Pleas in law and main arguments
                                                                         By this action, Poste Italiane SpA is seeking the annulment of
—     order the Commission to pay the costs.
                                                                         the decision of the Commission of 21 December 2000,
                                                                         adopted on the basis of Article 86(3) of the Treaty, in relation
                                                                         to the provision of certain new postal services with a
Pleas in law and main arguments                                          guaranteed day- or time-certain delivery. That decision declares
                                                                         incompatible with Article 4(4) of the Treaty Legislative Decree
                                                                         No 261/99 of 22 July 1999 implementing Directive 97/67/EC
The applicant, who is based in the European Commission’s                 of the European Parliament and of the Council of 15 December
Delegation in Montevideo (Uruguay), was notified of a decision           1997 on common rules for the development of the internal
dated 12 February 2001 posting him back to Brussels with                 market of Community postal services and the improvement of
effect from 12 March 2001.                                               quality of service.(1);
 ---pagebreak--- 5.5.2001               EN                    Official Journal of the European Communities                                        C 134/29
The Commission objects, in particular, to the inclusion in the          —     the principles and rules have not be observed regarding
area reserved to the incumbent operator of a guaranteed day-                  protection of services of general economic interest and in
or time-certain delivery service for time-sensitive electronic                particular of universal services. The applicant points out,
correspondence.                                                               in that respect, the particularly high costs of the universal
                                                                              postal system in Italy as well as the destabilising effect of
                                                                              the decision in question on the financial equilibrium of
                                                                              the provider of the universal service.
In support of its arguments, the applicant claims that:
                                                                        (1) OJ 1998 L 15, p. 14.
—    in the final decision the Commission altered substantially
     essential elements of the infringement complained of
     originally consisting in particular in: the definition of the
     relevant market and the legal classification and assessment
     of the infringement at issue. In this regard, the applicant
     takes the view that, in the final decision the Commission
     does not further identify the relevant market on the basis         Action brought on 16 March 2001 by The Procter &
     of a number of bundled services which, taken as a                  Gamble Company against the Office for Harmonization
     whole, confer on the service significant added-value by                                 in the Internal Market
     comparison with basic postal services. Rather, on the
     contrary, the Commission merely points to a single
     additional service (the date- and time-certain delivery of                                   (Case T-63/01)
     time-sensitive electronic mail) as a factor capable by itself
     of characterising a discrete relevant market.                                               (2001/C 134/61)
—    the Commission has not allowed either the applicant or                                (Language of the case: French)
     the Italian authorities to make their own points of view
     effectively known. Furthermore, despite a finding by               An action against the Office for Harmonization in the Internal
     the Commission originally that Directive 97/67/EC was              Market was brought before the Court of First Instance on
     essential for the legal assessment of the facts, that directive    16 March 2001 by The Procter & Gamble Company, estab-
     is not even cited in the final decision. In that respect, the      lished in Cincinnati (United States of America), represented by
     applicant affirms that the interpretation of the directive is      Thierry van Innis, lawyer, with an address for service in
     essential in order to decide whether the decree in issue is        Luxembourg.
     compatible. Indeed, if the Commission had assessed
     properly the decree in issue in the light of Directive
     97/67/EC, it would have concluded that the disputed                The applicant claims that the Court should:
     national provisions were fully consistent with the content
     and purpose of the directive itself.                               —     annul the Board of Appeal’s decision of 14 December
                                                                              2001;
                                                                        —     order the Office to pay all the costs.
—    the definition of the relevant market is vague and general
     inasmuch as it merely describes the service involved
     in general terms such as, basically, the time-certainty
     (date/time) of the service and the fact that the deadline          Pleas in law and main arguments
     for each delivery is subject to a contractual relationship
     with the user. The definition of the relevant market is not
                                                                        The action is directed against the decision of the Office’s Third
     even founded in the light of the relevant economic
                                                                        Board of Appeal, dated 14 December 2000 (Case R 74/1998-
     circumstances and practice of the Commission. Moreover,
                                                                        3), rejecting the applicant’s appeal against the decision of
     it has omitted to take into consideration the prices
                                                                        18 March 1998 whereby the examiner refused registration of
     charged to customers.
                                                                        the Community trade mark applied for under number 230680
                                                                        on the absolute ground referred to in Article 7(1)(e)(i) of
                                                                        Regulation No 40/94 on the Community trade mark.
—    there is no abuse of a dominant position, so that the
     Commission is mistaken in its hypothesis that Poste                Attention is drawn in this regard to the fact that, by decision
     Italiane has extended its position in the market with              of 15 March 1998, the same Board of Appeal rejected an
     respect to conventional deliveries into the neighbouring           application for registration in respect of the same mark. That
     but distinct market for day- or time-certain deliveries of         decision was annulled by the judgment delivered by the Court
     time-sensitive items.                                              of First Instance on 16 February 2000 in Case T-122/99


title: Reference for a preliminary ruling by the Value Added Tax Tribunal, Manchester, by direction of that court of 18 September 1995, in the case of Goldsmiths (Jewellers) Ltd against Commissioners of Customs and Excise (Case C-330/95)

text:
No C 333/ 10          EN                       Official Journal of the European Communities                                       9 . 12 . 95
consists of a unilateral intervention in a field exhaustively             system in order to justify a failure to comply with its
and exclusively regulated by the common organization of                   obligations under Community law.
the market .
                                                                          (') OJ No L 119 , 11 . 5 . 1990 , p . 32 .
(') OJ, English Special Edition, Series ( I ) 1965 to 1966 , p. 221 .     ( 2 ) OJ No L 41 , 14 . 2 . 1991 , p . 15 .
                                                                          Reference for a preliminary ruling by the Value Added Tax
Action brought on 17 October 1995 by the Commission of                    Tribunal, Manchester, by direction of that court of
  the European Communities against the Italian Republic                   18 September 1995 , in the case of Goldsmiths (Jewellers )
                        ( Case C-328/95 )                                       Ltd against Commissioners of Customs and Excise
                          ( 95/C 333/ 18 )                                                           ( Case C-330/95 )
                                                                                ( 95/C 333/ 19 )
An action against the Italian Republic was brought before
the Court of Justice of the European Communities on                       Reference has been made to the Court of Justice of the
17 October 1995 by the Commission of the European                         European Communities by direction of the Value Added
Communities, represented by Eugenio March, Legal                          Tax Tribunal, Manchester, of 18 September 1995 , which
Adviser, acting as Agent, with an address for service in                  was received at the Court Registry on 19 October 1995 , for
Luxembourg at the office of Carlos Gomez de la Cruz, of its               a preliminary ruling in the case of Goldsmiths (Jewellers )
Legal Service , Wagner Centre , Kirchberg, Luxembourg.                    Ltd against Commissioners of Customs and Excise, on the
                                                                          following question :
The applicant claims that the Court should :
                                                                          Is the derogation contained in Article 11 ( c ) ( 1 ) of the Sixth
1 . declare that, by not adopting the measures necessary for              Council Directive of 17 May 1977 on the harmonization of
     the correct and full application of Council Regulation               the laws of Member States relating to turnover taxes
     ( EEC ) No 1186/90 (*) of 7 May 1990 extending the                   — Common system of value added tax: uniform
     scope of the Community scale for the classification of               basis of assessment (Directive 77/388/EEC ) (the 'Sixth
     carcases of adult bovine animals and Commission                      Directive ') (') to be interpreted as permitting a Member
     Regulation ( EEC ) No 344/91 ( 2 ) of 13 February 1991               State which enacts provisions for the refund of tax in the
                                                                          case of bad debts to exclude relief where the consideration
     laying down detailed rules for the implementation
     thereof, the Italian Republic has failed to fulfil its               lost consists of something other than money ?
     obligations under those regulations and the second
     paragraph of Article 189 of the EC Treaty .                          (!) OJ No L 145 , 13 . 6 . 1977, p . 1 .
2 . order the Italian Republic to pay the costs .
Pleas in law and main arguments:
Since Article 3 of Regulation ( EEC ) No 1186/90 requires
Member States to take all the measures necessary to ensure                Reference for a preliminary ruling by the Pretura
                                                                          Circondariale di Roma — Sezione Distaccata di Tivoli by
that the provisions are applied and to penalize any                       order of that court of 4 October 1995 in criminal
infringements, it requires the Member States therefore to
                                                                          proceedings against Giuseppe Piccolo ( Case C-331/95 ),
adopt in their national legal system the laws, regulations or             Mario Corbo and Others ( Case C-332/95 ) and Miranda
administrative provisions necessary actually to implement
                                                                                Viola ( Case C-342/95 )
the Community classification scale .
                                                                                ( Cases C-331/95 , C-332/95 and C-342/95 )
                                                                                ( 95/C 333/20 )
The Italian Republic has not yet taken the measures it was
required to adopt for the full and correct implementation
of Council Regulations ( EEC ) No 1186/90 and ( EEC )                      Reference has been made to the Court of Justice of
No 344/91 and has therefore failed to fulfil its obligations               the European Communities by orders of the Pretura
under those regulations and under the second paragraph of                  Circondariale di Roma — Sezione Distaccata di Tivoli
Article 189 of the EC Treaty. The Court has consistently                   ( Rome District Magistrate's Court, Tivoli Division ) of
held that a Member State may not plead provisions,                         4 October 1995 , which were received at the Court Registry
practices or circumstances existing in its internal legal                  on 19 October 1995 ( Cases C-331/95 and C-332/95 ) and


title: Case C-404/02: Reference for a preliminary ruling by the High Court of Justice (England and Wales) (Chancery Division) by order of that court dated 3 September 2002, in the case of Nichols plc against the Registrar of Trade Marks

text:
11.1.2003              EN                  Official Journal of the European Communities                                            C 7/15
Reference for a preliminary ruling by the High Court of                      practice, deceiving the public by the use of his own name
Justice (England and Wales) (Chancery Division) by order                     or (ii) the Defendant is merely causing unintentional
of that court dated 3 September 2002, in the case of                         confusion thereby?
     Nichols plc against the Registrar of Trade Marks
                                                                      (1 ) First Council Directive, of 21 December 1988, to approximate
                                                                           the laws of the Member States relating to trade marks (OJ L 40,
                        (Case C-404/02)                                    11.02.1989, p. 1).
                          (2003/C 7/27)
                                                                      Action brought on 13 November 2002 by the Com-
                                                                      mission of the European Communities against the
Reference has been made to the Court of Justice of the                                        Kingdom of Belgium
European Communities by an order of the High Court
of Justice (England and Wales) (Chancery Division) dated
3 September 2002, which was received at the Court Registry                                       (Case C-406/02)
on 12 November 2002, for a preliminary ruling in the case of
Nichols plc and the Registrar of Trade Marks on the following                                     (2003/C 7/28)
questions:
1.   In what circumstances, if any, must a trade mark (i.e. a         An action against the Kingdom of Belgium was brought
     ‘sign’ which complies with the requirements of Article 2         before the Court of Justice of the European Communities on
     of the Trade Marks Directive 89/104/EC ( 1) consisting of        13 November 2002 by the Commission of the European
     a single surname be refused registration as being in itself      Communities, represented by Bruno Stromsky, acting as
     ‘devoid of any distinctive character’ within the meaning         Agent.
     of Article 3(1) (b) of the Directive?
                                                                      The applicant claims that the Court should:
2.   In particular (a) must or (b) may such a sign, before it
     has acquired distinctive character by use, be refused
     registration if it is a common surname in the Member             1.     Declare that, by failing to send, within the prescribed
                                                                             period, the reports relating to Directives 76/464/EEC (1),
     State in which the trade mark is sought to be registered
     or if it is a common surname in one or more of the other                78/659/EEC (2) and 80/68/EEC (3) in respect of the Brux-
     Member States?                                                          elles-Capitale Region, the Kingdom of Belgium has failed
                                                                             to fulfil its obligations under Council Directive 91/692/
                                                                             EEC of 23 December 1991 standardizing and rationaliz-
                                                                             ing reports on the implementation of certain Directives
3.   If the answer to either Question 2 (a) or (b) is in the
                                                                             relating to the environment (4);
     affirmative, is it appropriate for national authorities to
     determine the matter by reference to the presumed
     expectations of an average customer in relation to the           2.     Order the Kingdom of Belgium to pay the costs.
     goods/services in question in the Member State, taking
     into account the commonness of the surname, the nature
     of the goods/services at issue, and the prevalence (or
     otherwise) of the use of surnames in the relevant trade?         Pleas in law and main arguments
4.   Is it of significance for the purpose of determining             Under Article 2 of Directive 91/692/EEC, Belgium should have
     whether a surname is ‘devoid of any distinctive character’       sent to the Commission a report covering the period from
     within Article 3(1) (b) of the Directive that the effects        1993 to 1995 inclusive, drawn up on the basis of a question-
     of registration of the trade mark are restricted under           naire laid down in Decision 92/446/EEC and sent to Belgium
     Article 6(1) (a)?                                                in good time. Belgium was to have sent the report in question
                                                                      by 30 September 1996 at the latest. However, not all of
                                                                      those data were forwarded to the Commission within the
5.   If so, (a) is the word ‘person’ in Article 6(1) (a) of the       abovementioned period so far as concerns the Bruxelles-
     Directive to be understood as including a corporation or         Capitale Region:
     a business and (b) what amounts to ‘honest practices in
     industrial or commercial matters’; in particular, does that      —      As regards amended Directive 76/464/EEC, no data was
     expression apply where (i) the Defendant is not, in                     forwarded in respect of the years 1993 to 1995;


title: Reference for a preliminary ruling by the Landgericht Regensburg by order of that court of 16 December 1998 in the Business registry case relating to Firma Wiesenhof Geflügelspezialitäten, a branch of Lohmann & Co. AG (Case C-5/99)

text:
27.3.1999             EN                Official Journal of the European Communities                                    C 86/7
Reference for a preliminary ruling by the Landgericht              The applicant claims that the Court should:
Regensburg by order of that court of 16 December 1998
in the Business registry case relating to Firma Wiesenhof
   Geflügelspezialitäten, a branch of Lohmann & Co. AG             Ð declare that, by failing to adopt the necessary laws,
                                                                        regulations and administrative provisions to transpose
                        (Case C-5/99)
                                                                        Article 11 of European Parliament and Council
                       (1999/C 86/12)                                   Directive 94/62/EC of 20 December 1994 on
                                                                        packaging and packaging waste (1), the Kingdom of
                                                                        Belgium has failed to fulfil its obligations under that
                                                                        directive;
Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht
Regensburg (Regional Court, Regensburg) of 16 December             Ð order the Kingdom of Belgium to pay the costs.
1998, received at the Court Registry on 7 January 1999,
for a preliminary ruling in the commercial register case
relating to Firma Wiesenhof Geflügelspezialitäten, a               Pleas in law and main arguments adduced in support:
branch establishment of Lohmann & Co. AG, on the
following questions:
                                                                   Subject to certain exceptions in Article 11(2) and
                                                                   Article (3), Article 11 of Directive 94/62/EC provides that
(a) Are Articles 10 and 12 of Directive 69/335/EEC (1) to          Member States are to ensure that the sum of concentration
    be interpreted as meaning that the terms duties' and          levels of lead, cadmium, mercury and hexavelant
    duties paid by way of fees or dues' extend to fees            chromium present in packaging or packaging components
    payable by citizens for registration of a company in           does not exceed:
    the commercial register by a Court of a Member
    State?
                                                                   Ð 600 ppm by weight 2 years after the date referred to
                                                                        in Article 22(1);
(b) If Articles 10 and 12 of Directive 69/335/EEC are held
    to apply to fees demanded by courts:
                                                                   Ð 250 ppm weight 3 years after the date referred to in
                                                                        Article 22(1);
    Are Articles 10 and 12 of Directive 69/335/EEC to be
    interpreted as precluding national legislation, such as
    Sections 32 and 79 ff of the German Court Fee Rules,           Ð 100 ppm weight 5 years after the date referred to in
    requiring payment of a fee for registration of a                    Article 22(1).
    company in the commercial register, which increases
    proportionally to the company's share capital, with no
    upper limit, and in this case amounts to                       The date referred to in Article 22(1) is 30 June 1996.
    DEM 34 910,00 to register a branch establishment of
    a company?
                                                                   It is not disputed, nor can it be disputed, that the
                                                                   Kingdom of Belgium has not adopted any measure to
(1) OJ L 249, 3.10.1969, p. 25.                                    transpose the provisions of Article 11 of the directive into
                                                                   its domestic law.
                                                                   (1) OJ L 365, 31.12.1994, p. 10.
Action brought on 19 January 1999 by the Commission of
the European Communities against the Kingdom of
                            Belgium
                       (Case C-14/99)                              Reference for a preliminary ruling by the Finanzgericht
                                                                   Bremen by order of that court of 4 August 1998 in the
                       (1999/C 86/13)                              case of Hans Sommer GmbH & Co against Hauptzollamt
                                                                                Bremen
                                                                                (Case C-15/99)
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities                                   (1999/C 86/14)
on 19 January 1999 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal
Adviser, acting as Agent, with an address for service in           Reference has been made to the Court of Justice of the
Luxembourg at the Office of Carlos Gómez de la Cruz,               European Communities by order of the Finanzgericht Bre-
Wagner Centre, Kirchberg.                                          men (Finance Court, Bremen) of 4 August 1998, received


title: Case C-184/04: Reference for a preliminary ruling by the Korkein hallinto-oikeus by order of that court of 16 April 2004 in the case of Uudenkaupungin kaupunki

text:
               12.6.2004

               EN

               Official Journal of the European Union

               C 156/6

         Reference for a preliminary ruling by the Korkein hallinto-oikeus by order of that court of 16 April 2004 in the case of Uudenkaupungin kaupunki
   (Case C-184/04)
   (2004/C 156/13)
   Reference has been made to the Court of Justice of the European Communities by order of the Korkein hallinto-oikeus (Supreme Administrative Court) of 16 April 2004, received at the Court Registry on 19 April 2004, for a preliminary ruling in the case of Uudenkaupungin kaupunki on the following questions:

               1.

               Is Article 20 of Directive 77/388/EEC (1) to be interpreted as meaning that the adjustment of deductions in accordance with that article is mandatory for Member States in the case of capital goods unless it follows otherwise from Article 20(5)?

               2.

               Is Article 20 of the Directive to be interpreted as meaning that the adjustment of deductions in accordance with that article is applicable even where the capital goods, in this case real property, were first used in non-taxable activity, in which case an initial deduction could not have been made at all, and only later in taxable activity during the adjustment period ?

               3.

               May the second subparagraph of Article 13(C) of the Directive be interpreted as meaning that a Member State may restrict the right to deduct for acquisitions relating to real property investments in the manner laid down in the Finnish Arvonlisäverolaki, where the right to deduct is excluded altogether in situations such as the present one ?

               4.

               May the second subparagraph of Article 17(6) of the Directive be interpreted as meaning that a Member State may restrict the right to deduct for acquisitions relating to real property investments in the manner laid down in the Finnish Arvonlisäverolaki, where the right to deduct is excluded altogether in situations such as the present one ?

      (1)  Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145 of 13.6.77, p. 1).