title: Case C-611/12 P: Appeal brought on 31 December 2012 by Jean-François Giordano against the judgment of the General Court (Fifth Chamber) delivered on 7 November 2012 in Case T-114/11 Giordano v Commission

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/9

         Appeal brought on 31 December 2012 by Jean-François Giordano against the judgment of the General Court (Fifth Chamber) delivered on 7 November 2012 in Case T-114/11 Giordano v Commission
   (Case C-611/12 P)
   2013/C 71/15
   Language of the case: French

      Parties

      Appellant: Jean-Francois Giordano (represented by: D. Rigeade and A. Scheuer, lawyers)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside the judgment of 7 November 2012 delivered by the General Court of the European Union in Case T-114/11.

         And consequently:

               —

               Hold that the adoption of Regulation (EC) No 530/2008 of 12 June 2008 (1) of the Commission of the European Communities caused Mr Jean-François Giordano harm;

               —

               Order the Commission to pay Mr Jean-François Giordano damages in the sum of five hundred and forty-two thousand five hundred and ninety-four Euro (EUR 542 594), plus interest at the statutory rate and on a compound basis;

               —

               Order the Commission to pay the whole costs.

      Pleas in law and main arguments

   The appellant relies on six pleas in law in support of his appeal.
   First, he considers that the General Court erred by holding that the harm he alleged was not genuine and certain, whereas the envisaged cessation of fishing would cause him harm because he would lose the opportunity to fish against his whole quota.
   Second, the appellant considers that the General Court infringed Article 7(1) of Regulation (EC) No 2371/2002 (2) and made a manifest error of assessment. Under Article 7 of that Regulation, only a serious threat to the conservation of marine resources would allow the Commission to adopt emergency measures. However, the Commission does not prove that there was fishing outside quotas during the 2008 bluefin tuna fishing season.
   Third, the adoption of Regulation (EC) No 530/2008 restricted the appellant’s activity, thereby infringing Article 15(1) of the Charter of Fundamental Rights which provides that everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.
   Fourth, the adoption of Regulation (EC) No 530/2008, which prohibits bluefin tuna fishing from 16 June 2008, infringes the principle of legal certainty, whereas individuals should be entitled to work under clear and fixed rules.
   Fifth, the adoption of Regulation (EC) No 530/2008 infringes the principle of the protection of legitimate expectations. According to the appellant, persons have the right to be reasonably sure that the undertakings they have been given will be respected. Bluefin tuna fishing was initially authorised in France until 30 June 2008, meaning that the appellant had a legitimate expectation that he would be able to carry on fishing until that date.
   Finally, the adoption of Regulation (EC) No 530/2008 infringed the appellant’s right of property which is however protected by Article 1 of the First Protocol to the ECHR. Since bluefin tuna coming from fishing is ‘property’ within the meaning of that Article, the envisaged cessation of fishing would cause the appellant serious economic loss and deprive him of a potential debt.

      (1)  Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea (OJ 2008 L 155, p. 9).

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


title: Case T-314/13: Action brought on 12 June 2013 — Portugal v Commission

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 226/23

         Action brought on 12 June 2013 — Portugal v Commission
   (Case T-314/13)
   (2013/C 226/32)
   Language of the case: Portuguese

      Parties

      Applicant: Portuguese Republic (represented by: L. Inez Fernandes, Agent, M. Gorgão-Henriques and J. da Silva Sampaio, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Articles 1 and 2 of Commission Decision C(2013) 1870 final;

               —

               declare that Regulation (EC) No 16/2003 (1) is not applicable in the present case, in particular Article 7 thereof, since it infringes essential procedural requirements and Regulation (EC) No 1164/94 (2) or, in any event, general principles of European Union law;

               —

               declare that the European Commission is required to pay the outstanding balance;

               —

               in the alternative:

                           (a)

                           declare that the limitation period has expired in respect of the procedure for recovering sums already paid and the right to retain the outstanding balance;

                           (b)

                           declare that the Commission is required to reduce the correction it made in relation to irregularities which could determine non-payment of the full outstanding balance and the recovery in full of payments made after 3 June 2003 but invoiced between June 2002 and February 2003;

               —

               in any event, order the European Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that Regulation (EC) No 16/2003 is unlawful, since it infringes essential procedural requirements and a higher-ranking legal norm
               Regulation (EC) No 16/2003 is unlawful since it was not adopted by the College of Commissioners in accordance with the authorisation procedure or the written procedure, or any other simplified procedure in accordance with the Rules of Procedure of the Commission, (3) as in force at the time of adoption of Regulation (EC) No 16/2003, and did not comply with Article 18 of the Rules of Procedure of the Commission as in force on the date of adoption of that regulation, and in so far as the Commission failed to interpret Article 7 of that regulation in conformity with Regulation (EC) No 1164/94.

               2.

               Second plea in law, alleging infringement of European norms on the eligibility of expenditure
               The contested decision infringes legal norms implementing the Treaty, in particular in so far as concerns the question whether payments made after and during the beginning of the eligibility period, though invoiced prior to that period, constitute expenditure which is eligible for European financing.

               3.

               Third ground of appeal, alleging infringement of the principles of legitimate expectations and legal certainty and the obligation on administrative bodies to observe their own acts
               The European Commission has consistently interpreted the legislative norm in question in the way defended by the Portuguese Republic.
               That interpretation came from authorised Commission sources, which was communicated to the Portuguese Republic as well as other Member States; the context thereof was clearly such that the Portuguese Republic could legitimately expect that the invoices received prior to, and paid after, receipt by the European Commission of the request for full payment were eligible.
               The interpretation which the Commission now defends manifestly infringes the principle of legal certainty in that it imposes a substantial financial burden on the Portuguese Republic, even though that interpretation was neither certain nor foreseeable.

               4.

               Fourth plea in law, alleging, in the alternative, infringement of the principle of proportionality
               Although it is true that, in accordance with Article H of Annex II to Regulation (EC) No 1164/94, the European Commission is empowered to make financial corrections as its deems necessary, and which may imply full or partial annulment of the aid granted for the project, it must observe the principle of proportionality, taking account of the circumstances of the individual case, such as the type of irregularity and the possible financial impact of potential deficiencies in the management or monitoring systems. In that regard, it is incomprehensible why it was regarded necessary to cancel all of the aid granted, since corrections at a rate of 100 % apply only when the deficiencies in the management and monitoring systems are so significant, or the irregularity found is so serious, as to constitute a complete disregard of European Union law rendering all of the payments improper.
               Difficulties in interpretation are a decisive attenuating circumstance which should always be taken into account by the European Commission. In the light of the circumstances described, less restrictive means exist — such as the application of a reduced rate or even no correction at all — to achieve the desired objective.

               5.

               Fifth plea in law, in the alternative, alleging that the limitation period has expired
               In any event, the limitation period in relation to expenditure predating 3 June 2003 has already expired, given that the last invoice was dated 28 February 2008, namely three months and two days earlier than the date at issue.
               In accordance with Regulation (EC) No 2988/95 (4) of 18 December 1995, the limitation period for proceedings is four years as from the time when the irregularity was committed.

      (1)  Commission Regulation (EC) No 16/2003 of 6 January 2003 laying down special detailed rules for implementing Council Regulation (EC) No 1164/94 as regards eligibility of expenditure in the context of measures part-financed by the Cohesion Fund (OJ 2003 L 2, p. 7).

      (2)  Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p. 1).

      (3)  OJ 2000 L 308, p. 26.

      (4)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).


title: Case T-22/10: Action brought on 25 January 2010 — Esprit International v OHIM — Marc O’Polo International (Representation of the letter e on a trouser pocket)

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/42

         Action brought on 25 January 2010 — Esprit International v OHIM — Marc O’Polo International (Representation of the letter ‘e’ on a trouser pocket)
   (Case T-22/10)
   2010/C 100/66
   Language in which the application was lodged: German

      Parties

      Applicant: Esprit International LP (New York, United States of America) (represented by: M. Treis, 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: Marc O’Polo International GmbH (Stephanskirchen, Germany)

      Form of order sought

               —

               Annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2009 in Case R 1666/2008-4;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Esprit International

      Community trade mark concerned: a figurative mark representing the letter ‘e’ on a trouser pocket for goods in Classes 18 and 25 (Application No 5 089 859)

      Proprietor of the mark or sign cited in the opposition proceedings: Marc O’Polo International GmbH

      Mark or sign cited in opposition: in particular, a German figurative mark No 30 303 672 representing the letter ‘e’ for goods in Classes 18 and 25

      Decision of the Opposition Division: Opposition upheld

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no 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).


C 109/40              EN                   Official Journal of the European Communities                                4.5.2002
       Removal from the register of Case C-234/00 (1)                        Removal from the register of Case C-31/01 (1)
                        (2002/C 109/72)                                                      (2002/C 109/75)
By order of 22 January 2002 the President of the Court of             By order of 15 January 2002 the President of the Court of
Justice of the European Communities ordered the removal               Justice of the European Communities ordered the removal
from the register of Case C-234/00 (Reference for a preliminary       from the register of Case C-31/01: Commission of the
ruling by the High Court of Justice (England & Wales), Queen’s        European Communities v United Kingdom of Great Britain
Bench Division (Crown Office)): The Queen v Minister of               and Northern Ireland.
Agriculture, Fisheries and Food, ex parte: F. Machin & Sons
Ltd.
                                                                      (1) OJ C 79 of 10.3.2001.
(1) OJ C 247 of 26.8.2000.
                                                                             Removal from the register of Case C-41/01 (1)
      Removal from the register of Case C-239/00 P (1)
                                                                                (2002/C 109/76)
                        (2002/C 109/73)
                                                                      By order of 23 November 2001 the President of the Court of
                                                                      Justice of the European Communities ordered the removal
By order of 7 February 2002 the President of the Court of             from the register of Case C-41/01: Commission of the
Justice of the European Communities ordered the removal               European Communities v Federal Republic of Germany.
from the register of Case C-239/00 P: Aldo Kuijer v Council of
the European Union.
                                                                      (1) OJ C 79 of 10.3.2001.
(1) OJ C 247 of 26.8.2000.
                                                                             Removal from the register of Case C-85/01 (1)
       Removal from the register of Case C-449/00 (1)
                                                                                (2002/C 109/77)
                        (2002/C 109/74)
                                                                      By order of 5 February 2002 the President of the Court of
By order of 7 December 2001 the President of the Court of             Justice of the European Communities ordered the removal
Justice of the European Communities ordered the removal               from the register of Case C-85/01: Commission of the
from the register of Case C-449/00: Commission of the                 European Communities v United Kingdom of Great Britain
European Communities v French Republic.                               and Northern Ireland.
(1) OJ C 45 of 10.2.2001.                                             (1) OJ C 134 of 5.5.2001.


title: Action brought on 16 December 1997 by Nederlandse Antillen against the Council of the European Union (Case T-310/97)

text:
20.2.98               EN                   Official Journal of the European Communities                                    C 55/27
The applicant claims that the Court should:                           April 1997 that in view of the proposed review of the
                                                                      GBP the Article 169 procedure had been suspended and
                                                                      the reasoned opinion had not been served on the United
Ð annul the Commission's Decision dated 16 May 1997,                  Kingdom Government.
     9 July 1997 and 18 September 1997 in so far as it
     relates to refusal of access to the following documents:
                                                                      The applicant remains of the opinion that the amended
                                                                      GBP still contravenes Article 30 and that the Commission
     The reasoned opinion of the Commission formulated                was mistaken in its decision to terminate the Article 169
     following an investigation into the provisions of                procedure against the United Kingdom. It considers that
     Article 7(3) of The Supply of Beer (Tied Estates) Order          access to the reasoned opinion will assist in its action
     1989 SI 1989/2390,                                               against the United Kingdom Government because that
                                                                      opinion will formally reflect the Commission's views as to
                                                                      the legality under Community law of the GBP as
Ð order that the Commission pay the costs of these                    originally drafted and will enable the applicant's legal
     proceedings.                                                     representatives to advise at a preliminary stage on the
                                                                      likelihood of success in an action against the United
                                                                      Kingdom Government before undertaking the expense of
Pleas in law and main arguments adduced in support:
                                                                      litigation.
The applicant, an importer of German beer mainly for
sale in public houses and bars in the North of England,               Nevertheless, the Commission refused repeated requests by
found itself unable to sell its products as a large number            the applicant for a copy of the reasoned opinion on the
of public houses in the United Kingdom are covered by                 ground that refusal to grant access to the reasoned
tie' arrangements under which they are obliged to                    opinion was justified where disclosure could undermine
purchase their supplies of beer from particular brewers               the protection of the public interest, in particular where
under exclusive purchasing agreements and because of the              Commission inspections          and investigations       were
overwhelming market dominance enjoyed by the major                    concerned. This exception is provided for in the Code of
British brewers.                                                      Conduct concerning public access to Commission and
                                                                      Council documents, adopted by the Commission on
                                                                      8 February 1994.
In 1989 The Supply of Beer (Tied Estate) Order 1989 SI
1989/2390 was brought into effect by the United Kingdom
Government. This order provided that those UK brewers                 The applicant submits that this approach is contrary to
with an interest in more than 2 000 pubs would be                     this Code of Conduct which provides that the public will
obliged to allow the tenants of those pubs the opportunity            have the widest possible access to documents held by the
to purchase a guest beer' from another brewery.                      Commission'. Furthermore, it is in particular contrary to
Article 7(2)(a) (known as the Guest Beer Provision GBP')             the legal principles set forth by the Court of First Instance
provided that the guest beer should be a cask                        in Case T-105/95 (WWF UK Worldwide Fund for Nature
conditioned' beer with an alcoholic strength exceeding                v. Commission of the European Communities).
1,2 % by volume.                                                      Fundamental objectives of proper administration,
                                                                      transparency and accountability demand that the reasoned
                                                                      opinion be released to the applicant as requested.
This provision had the effect of barring the applicant's
product from the pubs controlled by the regional brewers.
Therefore, the applicant contends that the GBP represents
a measure having an effect equivalent to a quantitative
restriction on imports and is therefore illegal pursuant to
Article 30 of the EC Treaty. By effectively denying the
British public the opportunity to taste German beer, the              Action brought on 16 December 1997 by Nederlandse
GBP restricts competition and consumer choice at both                      Antillen against the Council of the European Union
wholesale and retail levels.
                                                                                (Case T-310/97)
                                                                                (98/C 55/56)
Having regard to these circumstances, the applicant
submitted a complaint to the Commission in April 1993,
which by notification to the applicant in September 1995                             (Language of the case: English)
initiated an investigation into the GBP and had served a
notice on the United Kingdom Government to that effect
in accordance with the procedure laid down in Article 169             An action against the Council of the European Union was
of the EC Treaty. After a press release issued by the                 brought before the Court of First Instance of the European
Commission in August 1996 announcing that the decision                Communities on 16 December 1997 by Nederlandse
had been taken to serve a reasoned opinion on the United              Antillen, represented by P. V. F. Bos and M. M. Slotboom,
Kingdom Government, the United Kingdom Government                     of the Rotterdam Bar, with an address for service in
announced a proposal to amend the GBP. As a result of                 Luxembourg at the offices of Loesch & Wolter, 11, rue
this, the applicant was informed by the Commission in                 Goethe.
 ---pagebreak--- C 55/28                EN                Official Journal of the European Communities                                    20.2.98
The applicant claims that the Court should:                         Ð breach of the order of preference established by the
                                                                        EC Treaty in favour of OCT goods,
Ð annul Council Decision 97/803/EC of 24 November
     1997 (OJ L 329, 29.11.1997, p. 50) pursuant to                 Ð infringement of Article 85 of the OCT Decision in
     Articles 173 and 174 of the EC Treaty,                             conjunction with Annex XXXII to the LomeÂ
                                                                        Convention,
     or, in the alternative,
                                                                    Ð infringement of Article 18 of the Vienna Convention
                                                                        on the Law of Treaties.
Ð annul paragraphs 31, 32, 53 (in so far as it concerns
     Article 232(1), first and second indents), 54 and 55 of
                                                                    (1) OJ L 263, 19.9.1991, p. 1.
     Article 1 of Council Decision 97/803/EC of
     24 November 1997 (OJ L 329, 29.11.1997, p. 50)
     pursuant to Articles 173 and 174 of the EC Treaty,
     and
                                                                    Action brought on 8 December 1997 by Masotti and
Ð order the Council to pay the costs.                               Others against the Commission of the European
                                                                                Communities
                                                                                (Case T-312/97)
Pleas in law and main arguments adduced in support:
                                                                                (98/C 55/57)
The contested Decision (hereinafter the Decision') amends
Decision 91/482/EEC on the association of the overseas                             (Language of the case: Italian)
countries and territories with the EEC (1) (hereinafter the
OCT Decision') by supplementing a number of
                                                                    An action against the Commission of the European
provisions. As the OCT Decision is addressed to the
                                                                    Communities was brought before the Court of First
Netherlands Antilles pursuant to Articles 237 and 238 of
                                                                    Instance of the European Communities on 8 December
the OCT Decision and Annex I to that Decision, expressly
                                                                    1997 by Masotti srl, Masotti Ermidio, F.lli Pevere
listing the Netherlands Antilles as one of the OCT, the
                                                                    autotrasporti srl, Giacomo Folicaldi & figli snc, Tam
Decision modifies the rights and obligations of the
                                                                    Alceo di Tam Pierluigi, Nuova Friultrasport srl, Del
applicant, in particular the preferential treatment of goods
                                                                    Fabbro Rudi e del Fabbro Raffaele, Assisped srl,
originating in the OCT and the system for minimum
                                                                    Castagnara Trasporti srl, Castelletti Ezio autotrasporti di
export prices.
                                                                    Castelletti Ezio & C. sas, Cesca Nazzario, Cesca Roberto,
                                                                    D. & G. Spedizioni srl, Tracev srl, S. N. U. A. srl, Tecno
The applicant fears that it will suffer substantial damage          Trasport srl, Italspurghi ecologia srl, Tib-cunja srl,
and be deprived of a valuable tool for its social and               Grusovin Edoardo, La Goriziana srl, Luigi Kodermac
economic development.                                               succ. srl, Autotrasporti Kusterle srl, Romano Caprara srl,
                                                                    Gia.Tra.Gianesini trasporti srl, Autotrasporti Ribi SpA,
                                                                    Mattia Winkler srl, Interbartolo SpA, Paolo Ceriani
The pleas in law raised by the applicant to contest the             Autotrasporti srl, Trasporti teatrali di Paoletti Roberto &
Decision concern lack of competence, breach of essential            C. snc, Gianesini Erminio srl, Mar-Ter spedizioni SpA,
procedural requirements and infringements of the                    represented by Roberto Petiziol and Alessandra Pergolese,
EC Treaty, of provisions implementing the EC Treaty and/            of the Udine Bar, with an address for service at their
or general principles of Community law. In particular, the          Chambers at Udine, via Ginnasio Vecchio, 6.
applicant puts forward the following pleas:
                                                                    The applicants claim that the Court should:
Ð lack of competence ratione temporis,
                                                                    Ð annul Commission Decision C(97) 2735 final of
Ð breach of Articles 131(3), 132(1) and (5), 133(1),                    30 July 1997,
     136(2) and 227(1) of the EC Treaty,
                                                                    Ð in the alternative, annul Article 5 of that Decision
Ð breach of the principle of legal certainty,                           inasmuch as it requires the Member State to recover
                                                                        the aid (granted as from 1 July 1990), together with
                                                                        the interest accrued as from the date on which the aid
Ð breach of Article 3(r) of the EC Treaty in conjunction                was paid,
     with Article 131(2) of the EC Treaty,
                                                                    Ð in any event, order the Commission of the European
Ð breach of the principle of proportionality,                           Communities to pay the costs.


title: Case C-125/09: Action brought on 2 April 2009 — Commission of the European Communities v Republic of Cyprus

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/31

         Action brought on 2 April 2009 — Commission of the European Communities v Republic of Cyprus
   (Case C-125/09)
   2009/C 141/53
   Language of the case: Greek

      Parties

      Applicant: Commission of the European Communities (represented by: G. Zavvos and A. Nijenhuis)

      Defendant: Republic of Cyprus

      Form of order sought

               —

               declare that, by not ensuring that rights of way on, over or under public property are granted in good time, without discrimination and transparently, the Republic of Cyprus has failed to fulfil its obligations under Article 11(1) of the Framework Directive (2002/21/EC) and Article 4(1) of the Authorisation Directive (2002/20/EC);

               —

               order the Republic of Cyprus to pay the costs.

      Pleas in law and main arguments

               1.

               It is apparent from the information supplied to the Commission that the second mobile telephony provider has been unable to establish its network effectively in order to provide electronic communications services competitively vis-à-vis the established network operator, the Arkhi Tilepikinonion Kiprou (Cyprus Telecommunications Authority; ‘ATHK’), because of time-consuming and uncoordinated procedures in Cyprus.

               2.

               The Commission alleges that, as a result of the conduct of the competent Cypriot public authorities (municipalities and/or districts), the second mobile telephony provider does not have at the moment the construction authorisations which are required under national legislation and therefore its existing network, which is expected to correspond to the strict requirement regarding geographical coverage that is entered in its authorisation, could be regarded as operating in breach of Cypriot law.

               3.

               The Commission considers that that situation gives rise to substantial disadvantages for the activities of the second mobile telephony network operator. Since it has not completed the development of its network, it can offer end users full geographical coverage only by means of the national roaming service available to it, at wholesale prices, from ATHK. This results in the second operator currently being dependent on ATHK’s wholesale national roaming service for approximately 20 % of its total traffic. Thus, since the second operator’s own network does not provide full geographical coverage, it is obliged to shoulder the real external cost of use of ATHK’s wholesale national roaming service and is dependent on that service.

               4.

               In the Commission’s view, this significant delay regarding the grant, to the second mobile telephony provider, of rights of way on, over or under public property for the installation of masts and antennae constitutes an infringement of Article 11(1) of the Framework Directive, which provides that the competent authority must act on the basis of transparent and publicly available procedures, applied without discrimination and without delay.

               5.

               The Republic of Cyprus states that the decree which was to be issued immediately after the vote on the draft law was expected also to cover other important points of the Code, such as the six-week rule and, generally, all the provisions of paragraph 4 of the Code. However, the abovementioned decree was never issued, with the result that the situation remains essentially unchanged. Consequently, the Commission considers that the Framework Directive and the Authorisation Directive are currently not implemented correctly in Cyprus so far as concerns the grant of town-planning and construction authorisations.

               6.

               Therefore, Article 4(1) of the Authorisation Directive and Article 11(1) of the Framework Directive will not be fully implemented prior to formal implementation of the forthcoming measures implementing the Code since, in the absence of completion of the necessary procedure and issue of the decree, the new construction authorisation regime will not be capable of being brought into force.


title: Case T-19/13: Order of the General Court of 29 June 2015 — Frank Bold v Commission (Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Decision granting the Czech Republic an option for transitional free allocation for the modernisation of electricity generation — Request for internal review of that decision — Lack of measure of individual scope — Commission decision declaring the request for a review inadmissible — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

text:
               21.9.2015

               EN

               Official Journal of the European Union

               C 311/44

         Order of the General Court of 29 June 2015 — Frank Bold v Commission
   (Case T-19/13) (1)

   ((Environment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - Decision granting the Czech Republic an option for transitional free allocation for the modernisation of electricity generation - Request for internal review of that decision - Lack of measure of individual scope - Commission decision declaring the request for a review inadmissible - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law))
   (2015/C 311/47)
   Language of the case: English

      Parties

      Applicant: Frank Bold Society, formerly Ekologický právní servis (Brno, Czech Republic) (represented by: P. Černý, lawyer)

      Defendant: European Commission (represented initially by: P. Oliver and L. Pignataro-Nolin, and subsequently by: L. Pignataro-Nolin and J. Tomkin, acting as Agents)

      Intervener in support of the defendant: Czech Republic (represented by: M. Smolek, T. Müller and D. Hadroušek, acting as Agents)

      Re:

   Application for annulment of (i) Commission Decision C(2012) 8382 final of 12 November 2012 rejecting as inadmissible the request for internal review of Commission decision C(2012) 4576 final of 6 July 2012 granting the Czech Republic an option for transitional free allocation for the modernisation of electricity generation, and (ii) the latter decision.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Frank Bold Society is ordered to bear its own costs and to pay those incurred by the European Commission.

               3.

               The Czech Republic shall bear its own costs.

      (1)  OJ C 79, 16.3.2013.


C 121/14              EN                    Official Journal of the European Communities                                     1.5.1999
References for a preliminary ruling from the Verwal-                          Removal from the register of Case C-289/98 (1)
tungsgericht Frankfurt am Main by orders of that court of
23 February 1999 in the cases of Ernst-Otto Flemmer,                                           (1999/C 121/27)
Renate Christoffel and Marike Leitensdorfer v. Council of
the European Union and Commission of the European                      By order of 16 December 1998 the president of the Court of
Communities represented by Bundesanstalt Für                           Justice of the European Communities has ordered the removal
                Forstwirtschaft und Ernährung                          from the register of Case C-289/98: Commission of the
                                                                       European Communities v. Hellenic Republic.
            (Cases C-80/99, C-81/99 and C-82/99)
                                                                       (1) OJ C 278, 5.9.1998.
                        (1999/C 121/26)
Reference has been made to the Court of Justice of the
European Communities by orders of the First Chamber of the
Verwaltungsgericht (Administrative Court) Frankfurt am Main
of 23 February 1999, which were received at the Court
Registry on 4 March 1999, for preliminary rulings in the cases                Removal from the register of Case C-197/97 (1)
of 1. Ernst Otto Flemmer, 2. Renate Christoffel 3. And
Marike Leitensdorfer v. Council of the European Union and                                      (1999/C 121/28)
Commission of the European Communities represented by
Bundesanstalt für Forstwirtschaft und Ernährung on the fol-            By order of 27 January 1999 the president of the Court of
lowing questions:                                                      Justice of the European Communities has ordered the removal
                                                                       from the register of Case C-197/97 (reference for a preliminary
a) Is the second paragraph of Article 215 of the EC Treaty in          ruling from the Liverpool Industrial Tribunal): Donna Marie
    conjunction with Article 178 of the EC Treaty in conjunc-          Davies v. Girobank plc.
    tion with the provisions of Council Regulation (EEC) No
    2187/93 (1) to be interpreted as meaning that the Court of         (1) OJ C 212, 12.7.1997.
    Justice also has jurisdiction in disputes which derive from
    a contract concluded by the competent national authority
    in the name and on behalf of the Council and Commission
    in accordance with Council Regulation (EEC) No 2187/93
    providing for an offer of compensation to certain pro-
    ducers of milk and milk products temporarily prevented
    from carrying on their trade?
                                                                              Removal from the register of Case C-24/98 (1)
b) If that question is answered in the negative and if there is a
    case falling within the first paragraph of Article 215 of the                              (1999/C 121/29)
    EC Treaty and if the national courts thus have jurisdiction
    under Article 183 of the EC Treaty, the further question           By order of 2 February 1999 the President of the Court of
    arises whether the provisions of national procedural law           Justice of the European Communities has ordered the removal
    or the general principles of law common to the legal               from the register of Case C-24/98: Commission of the
    systems of the Member States are to be applied to such a           European Communities v. Ireland.
    contract, in so far as Regulation (EEC) No 2187/93 makes
    no provision.
                                                                       (1) OJ C 72, 7.3.1998.
c) If the general principles of law are applicable, the question
    then arises whether and under what conditions the com-
    petent national authority may set aside in whole or in part
    a contract concluded in the name and on behalf of the
    Council and Commission if it subsequently transpires that
    the conditions to be fulfilled under Regulation (EEC) No
    2187/93 for the making of an offer of compensation were                   Removal from the register of Case C-371/96 (1)
    in whole or in part not met, or if the conditions for the
    making of an offer of compensation are met only because                                    (1999/C 121/30)
    the competent national authorities consider that they are
    precluded for reasons of the protection of legitimate              By order of 3 February 1999 the President of the Court of
    expectations from annulling the definitive allocation of a         Justice of the European Communities has ordered the removal
    special reference quantity which is a precondition for             from the register of Case C-371/96 (reference for a preliminary
    granting compensation.                                             ruling from the Tribunale di Trento): Ministero delle Finanze
                                                                       v. Cotonificio del Trentino SpA.
(1) OJ L 196, 5.8.1993, p. 6.
                                                                       (1) OJ C 40, 8.2.1997.


title: Case C-31/02: Reference for a preliminary ruling by the Socialgericht Aachen by order of 18 January 2002 in the case of Maria Barth against Landesversicherungsanstalt Rheinprovinz, additional parties (1) PAX Familienfürsorge Krankenversicherung and (2) Landesamt für Besoldung und Versorgung Nordrhein-Westfalen

text:
C 109/24                EN                   Official Journal of the European Communities                                        4.5.2002
where on the basis of the documents sent to him a sensible              3.    Are carers within the meaning of Paragraph 19 of
consumer could have thought that all he had to do to claim                    Volume XI of the SGB workers within the meaning of
the amount held for him was to return an enclosed payment                     Article 39 EC? If so, does that preclude denying them the
notice, so that the payment of the prize did not depend on an                 right to have ‘pension insurance contributions’ paid on
order for and delivery of goods from the undertaking promis-                  their behalf on the basis that they do not have their
ing the prize, but where a catalogue and a voucher for a trial                residence or habitual place of stay in the relevant country?
offer without obligation are sent to the consumer with the
prize notification?
If the first question is answered in the affirmative, there is no       (1) OJ, English Special Edition 1971 (II), p. 416.
need to answer the other two questions.
Reference for a preliminary ruling by the Socialgericht
Aachen by order of 18 January 2002 in the case of Maria
Barth against Landesversicherungsanstalt Rheinprovinz,
additional parties (1) PAX Familienfürsorge Krankenver-                 Reference for a preliminary ruling by the Bundesverwal-
sicherung and (2) Landesamt für Besoldung und Versor-                   tungsgericht by order of that Court of 8 November 2001
                   gung Nordrhein-Westfalen                             in the case of Landeszahnärztekammer Hessen against
                                                                                Dr Markus Vogel
                           (Case C-31/02)
                                                                                (Case C-35/02)
                          (2002/C 109/38)
                                                                                (2002/C 109/39)
Reference has been made to the Court of Justice of the
European Communities by order of the Socialgericht Aachen
(Social Court, Aachen) of 18 January 2002, received at the
Court Registry on 4 February 2002, for a preliminary ruling in
the case of Maria Barth against Landesversicherungsanstalt              Reference has been made to the Court of Justice of the
Rheinprovinz, additonal parties (1) PAX Familienfürsorge                European Communities by order of the Bundesverwaltungsger-
Krankenversicherung and (2) Landesamt für Besoldung und                 icht (Federal Administrative Court) of 8 November 2001,
Versorgung Nordrhein-Westfalen on the following questions:              received at the Court Registry on 12 February 2002, for a
                                                                        preliminary ruling in the case of Landeszahnärztekammer
1.    Are the provisions of Regulation EEC No 1408/71 (1) of            Hessen against Dr Markus Vogel on the following question:
      the Council of 14 June 1971 on the application of social
      security schemes to employed persons and their families
      moving within the Community also applicable to the                Is it compatible with Article 1 of Council Directive
      German care insurance regime if cover for the risk                78/687/EEC (1) of 25 July 1978 concerning the coordination
      of becoming reliant on care under Paragraph 23, in                of provisions laid down by law, regulation or administrative
      conjunction with Paragraph 110, of Volume XI of the               action in respect of the activities of dental practitioners (OJ
      Sozialgesetzbuch (German Code of Social Law, herein-              1978 L 233, p. 10) for national legislation to permit doctors
      after ‘the SGB’), which relates to Social Care Insurance, is      in general to practise dentistry on a permanent basis without
      based in whole or in part on a private care insurance             having the dental training required by the directive and
      policy?                                                           certified by an appropriate diploma?
2.    Do the contributions payable to the statutory pension
                                                                        Does the answer to this question turn on whether the activity
      insurance scheme by care insurance institutions on behalf
                                                                        is pursued under the title ‘dental practitioner’?
      of carers not acting in the course of employment pursuant
      to Paragraph 44 of Volume XI of the SGB, in conjunction
      with Paragraphs 3(1)(1)(a) and 166(2) of Volume VI of
      the SGB, which relates to Statutory Pension Insurance,
      constitute ‘sickness benefits’ within the meaning of              (1) OJ L 233 of 24.8.1978, p. 10.
      Article 4(1)(a) of Regulation No EEC No 1408/71? If so,
      may such benefits be payable on behalf of carers who
      provide care in the country of the competent institution
      but live in a different Member State?


title: Case T-42/06: Action brought on  13 February 2006  — Bruno Gollnisch v European Parliament

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/36

         Action brought on 13 February 2006 — Bruno Gollnisch v European Parliament
   (Case T-42/06)
   (2006/C 86/73)
   Language of the case: French
   Parties

      Applicant(s): Bruno Gollnisch (Limonest, France) (represented by: W. de Saint Just, lawyer)

      Defendant(s): European Parliament
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               annul the decision of the European Parliament of 13 December 2005 to adopt Report No A6-0376/2005,

               —

               award Mr Gollnisch the sum of EUR 8 000 in compensation for non-material damage,

               —

               further, award the applicant the sum of EUR 4 000 by way of costs incurred for legal advice and the preparation of this action.

         Pleas in law and main arguments
   By this action, the applicant, a Member of the European Parliament, seeks the annulment of the decision made by the Parliament in plenary sitting on 13 December 2005 to adopt the report of the Committee on Legal Affairs No A6-0376/2005 concerning remarks the applicant made at a press conference and consequently not to defend his immunity and privileges. He also seeks compensation for the damage allegedly suffered as a result of the contested decision.
   In support of his application, the applicant relies on several pleas in law alleging inter alia the unlawfulness of the form of the decision of Parliament whose annulment is sought, its inconsistency with general principles of law such as legal certainty and protection of legitimate expectations and procedural irregularities at the time of its adoption. He also submits that the contested decision is contrary to the precedents set by previous decisions of the Committee on Legal Affairs of the European Parliament as regards freedom of expression and fumus persecutionis and that it undermines the independence of an elected representative in that, according to the applicant, it is disputed that he spoke in the exercise of his national and European political activities at the press conference in question.


title: Judgment of the Court (Sixth Chamber) of 9 September 1999 in Case C-217/97: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations - Directive 90/313/EEC - Freedom of access to information on the environment - Definition of public authorities - Exclusion of the courts, criminal prosecution authorities and disciplinary authorities - Partial communication of information - Exclusion of the right to information during administrative proceedings - Amount of charges and mode of collecting them)

text:
4.12.1999                 EN                     Official Journal of the European Communities                                            C 352/3
2. The demands of an investigation conducted by the national                1. Declares that, by failing to take the measures necessary to
     authorities may, in the absence of any deception or negligence on          give priority to the processing of waste oils by regeneration,
     the part of the person liable, and where that person has not been          notwithstanding that technical, economic and organisational
     informed that the investigation is being carried out, constitute a         constraints so allowed, the Federal Republic of Germany has
     special situation within the meaning of Article 13(1) of Council           failed to fulfil its obligations under Article 3(1) of Council
     Regulation (EEC) 1430/79 of 3 July 1979 on the repayment                   Directive 75/439/EEC of 16 June 1975 on the disposal of
     or remission of import or export duties, as amended by Council             waste oils, as amended by Council Directive 87/101/EEC of
     Regulation (EEC) No 3069/86 of 7 October 1986, where the                   22 December 1986;
     fact that the national authorities have, in the interests of the
     investigation, deliberately allowed offences or irregularities to be   2. Orders the Federal Republic of Germany to pay the costs.
     committed, thus causing the principal to incur a customs debt,
     places the principal in an exceptional situation in comparison
     with other operators engaged in the same business.                     (1) OJ C 142 of 10.5.1997.
3. Commission Decision C(98) 372 of 18 February 1998 is
     invalid.
(1) OJ C 113 of 11.4.1998.
                                                                                JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                   JUDGMENT OF THE COURT
                                                                                of 9 September 1999
                            (Fifth Chamber)
                                                                            in Case C-217/97: Commission of the European Communi-
                        of 9 September 1999                                             ties v Federal Republic of Germany(1)
in Case C-102/97 Commission of the European Communi-
              ties v Federal Republic of Germany(1)                         (Failure of a Member State to fulfil obligations — Directive
                                                                            90/313/EEC — Freedom of access to information on the
                                                                            environment — Definition of public authorities — Exclusion
(Failure of a Member State to fulfil obligations — Directive                of the courts, criminal prosecution authorities and disciplin-
87/101/EEC — Disposal of waste oils — Transposition of                      ary authorities — Partial communication of information —
                              the directive)                                Exclusion of the right to information during administrative
                                                                            proceedings — Amount of charges and mode of collecting
                            (1999/C 352/05)                                                                them)
                     (Language of the case: German)                                                   (1999/C 352/06)
(Provisional translation; the definitive translation will be published                         (Language of the case: German)
                     in the European Court Reports)
In Case C-102/97: Commission of the European Communities                    (Provisional translation; the definitive translation will be published
(Agent: Götz zur Hausen) v Federal Republic of Germany                                         in the European Court Reports)
(Agents: initially Ernst Röder and Bernd Kloke, and, sub-
sequently, Ernst Röder and Claus-Dieter Quassowski) —
Application for a declaration that, by failing to give priority to          In Case C-217/97: Commission of the European Communities
the recycling, rather than the thermal processing, of waste oils,           (Agent: Götz zur Hausen) v Federal Republic of Germany
notwithstanding that such processing is not precluded by any                (Agent: Ernst Röder, assisted by Dieter Sellner) — application
economic, technical or organisational constraints, the Federal              for a declaration that the Federal Republic of Germany
Republic of Germany has failed to fulfil its obligations under              has failed to fulfil its obligations under Council Directive
Article 3(1) of Council Directive 75/439/EEC of 16 June 1975                90/313/EEC of 7 June 1990 on the freedom of access to
on the disposal of waste oils (OJ 1975 L 194, p. 23), as                    information on the environment (OJ 1990 L 158, p. 56), in
amended by Council Directive 87/101/EEC of 22 December                      particular Article 2(b), Article 3(2), third indent of the first
1986 (OJ 1987 L 42, p. 43) — the Court (Fifth Chamber),                     subparagraph and second subparagraph, and Article 5 thereof
composed of: J.-P. Puissochet, President of the Chamber,                    — the Court (Sixth Chamber), composed of: P.J.G. Kapteyn,
P. Jann, J.C. Moitinho de Almeida, L. Sevón (Rapporteur) and               President of the Chamber, G. Hirsch and R. Schintgen (Rappor-
M. Wathelet, Judges, N. Fennelly, Advocate General; D. Louter-              teur), Judges; N. Fennelly, Advocate General; L. Hewlett, Princi-
man-Hubeau, Principal Administrator, for the Registrar, has                 pal Administrator, for the Registrar, has given a judgment on
given a judgment on 9 September 1999, in which it:                          9 September 1999, in which it held:
 ---pagebreak--- C 352/4                  EN                     Official Journal of the European Communities                                          4.12.1999
1. The Federal Republic of Germany has failed to fulfil its                L 39, p. 40) — the Court (Sixth Chamber), composed of:
    obligations under the third indent of the first subparagraph, and      G. Hirsch (Rapporteur), President of the Second Chamber,
    the second subparagraph, of Article 3(2) and under Article 5 of        acting for the President of the Sixth Chamber, J.L. Murray and
    Directive 90/313,                                                      H. Ragnemalm, Judges; P. Léger, Advocate General; H. Rühl,
                                                                           Principal Administrator, for the Registrar, has given a judgment
    — By failing to provide for access to be given to information          on 9 September 1999, in which it has ruled:
         during administrative proceedings where the public auth-
         orities have received information in the course of those          Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty
         proceedings,                                                      have been replaced by Articles 136 EC to 143 EC) must be
                                                                           interpreted as meaning that exclusion by a collective agreement from
    — by failing to provide in the Umweltinformationsgesetz for            entitlement to a special annual bonus provided for by that collective
         information to be supplied in part where it is possible to        agreement of persons in employment which involves a normal
         separate out information concerning the interests referred to     working week of less than 15 hours and normal pay not exceeding a
         in Article 3(2) of Council Directive 90/313/EEC of 7 June         fraction of the monthly baseline and is, on that basis, exempt from
         1990 on the freedom of access to information on the               compulsory social insurance constitutes indirect discrimination based
         environment, and                                                  on sex, where that exclusion applies independently of the sex of the
                                                                           worker but actually affects a considerably higher percentage of women
    — by failing to provide that a charge is to be made only where         than men.
         information is in fact supplied.
2. The remainder of the application is dismissed.                          (1) OJ C 295 of 27.9.1997.
3. The Federal Republic of Germany is ordered to pay the costs.
(1) OJ C 252 of 16.8.1997.
                                                                                JUDGMENT OF THE COURT
                                                                                (Second Chamber)
                                                                                of 9 September 1999
                 JUDGMENT OF THE COURT
                                                                           in Case C-374/97 (reference for a preliminary ruling from
                          (Sixth Chamber)                                  the Bayerischer Verwaltungsgerichtshof): Anton Feyrer v
                                                                                Landkreis Rottal-Inn (1)
                       of 9 September 1999
                                                                           (Directive 85/73/EEC — Fees in respect of health inspections
in Case C-281/97 (reference for a preliminary ruling from                            and controls of fresh meat — Direct effect)
the Arbeitsgericht, Munich): Andrea Krüger v Kreiskran-
                       kenhaus Ebersberg (1)                                                         (1999/C 352/08)
(Equal treatment for men and women — End-of-year bonus
                    — Conditions for granting)                                                (Language of the case: German)
                           (1999/C 352/07)                                 (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                    (Language of the case: German)                         In Case C-374/97: reference to the Court under Article 177 of
                                                                           the EC Treaty (now Article 234 EC) from the Bayerischer
                                                                           Verwaltungsgerichtshof, Germany, for a preliminary ruling in
(Provisional translation; the definitive translation will be published     the proceedings pending before that court between Anton
                    in the European Court Reports)                         Feyrer and Landkreis Rottal-Inn (Intervener: Landesanwalt-
                                                                           schaft Bayern als Vertreter des öffentlichen Interesses) —
In Case C-281/97: reference to the Court under Article 177 of              on the interpretation of Article 2(3) of Council Directive
the EC Treaty (now Article 234 EC) from the Arbeitsgericht                 85/73/EEC of 29 January 1985 on the financing of health
(Labour Court), Munich, Germany, for a preliminary ruling in               inspections and controls of fresh meat and poultrymeat (OJ
the proceedings pending before that court between Andrea                   1985 L 32, p. 14), as amended by Council Directive 93/118/EC
Krüger and Kreiskrankenhaus Ebersberg — on the interpret-                  of 22 December 1993 (OJ 1993 L 340, p. 15), and of points 1
ation of Article 119 of the EC Treaty (Articles 117 to 120 of              and 4(b) of Chapter I of the Annex thereto — the Court
the EC Treaty have been replaced by Articles 136 EC to 143                 (Second Chamber), composed of: G. Hirsch, President of the
EC) and Council Directive 76/207/EEC of 9 February 1976 on                 Chamber, G.F. Mancini and R. Schintgen (Rapporteur), Judges;
the implementation of the principle of equal treatment for                 P. Léger, Advocate General; D. Louterman-Hubeau, Principal
men and women as regards access to employment, vocational                  Administrator, for the Registrar, has given a judgment on
training and promotion, and working conditions (OJ 1976                    9 September 1999, in which it has ruled:


title: Case T-7/09: Action brought on 12 January 2009 — Schunk v OHIM (cylinder-shaped section of a chuck)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/46

         Action brought on 12 January 2009 — Schunk v OHIM (cylinder-shaped section of a chuck)
   (Case T-7/09)
   (2009/C 69/101)
   Language in which the application was lodged: Germany
   Parties

      Applicant: Schunk GmbH & Co. KG Spann- und Greiftechnik (Lauffen am Neckar, Germany) (represented by C. Koppe-Zagouras, lawyer)

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

               —

               annul the decision of the First Board of Appeal of 31 October 2008 — Case R 1109/2007-1;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: another type of mark, showing the cylinder-shaped section of a chuck, for goods in Classes 7 and 8 — Application No 3 098 894

      Decision of the Examiner: Refusal of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the registered mark has the necessary distinctive character. Further, the registered mark has distinctive character in consequence of use under Article 7(3) of Regulation No 40/94.

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


title: Case T-180/02: Action brought on 11 June 2002 by Georgios Gouvras against Commission of the European Communities

text:
C 191/30                EN                     Official Journal of the European Communities                                      10.8.2002
for the conclusions concerning the impact of the scheme on                In support of his application, the applicant alleges infringement
intra-Community trade.                                                    of the first indent of Article 37(a) and Article 38 of the Staff
                                                                          Regulations in that the contested decision changes the place of
                                                                          employment of the applicant during the period in which he
(1) OJ 1997 C 283, p. 2.                                                  was on secondment in the interests of the service. The
                                                                          applicant further alleges infringement of Article 85 of the Staff
                                                                          Regulations and breach of the principle prohibiting arbitrary
                                                                          decisions, the principle that legitimate expectations are to be
                                                                          protected and the duty to have regard for the welfare of
                                                                          officials inasmuch as the applicant was unaware of the irregular
                                                                          nature of the payments received. Finally, the applicant alleges
                                                                          infringement of Articles 5 and 10 of Annex VII to the Staff
                                                                          Regulations.
Action brought on 11 June 2002 by Georgios Gouvras
    against Commission of the European Communities
                          (Case T-180/02)
                          (2002/C 191/51)                                 Action brought on 14 June 2002 by BMI Bertollo S.r.l.
                                                                          against Office for the Harmonization of the Internal
                                                                                Market (trade marks and designs) (OHIM)
                    (Language of the case: French)
                                                                                (Case T-186/02)
An action against the Commission of the European Communi-                                         (2002/C 191/52)
ties was brought before the Court of First Instance of the
European Communities on 11 June 2002 by Georgios                          (Language of the case: to be determined in accordance with
Gouvras, residing in Bereldange (Luxembourg), represented by              Article 131(2) of the Rules of Procedure — Language in which the
Jean-Noël Louis, Etienne Marchal and Albert Coolen, lawyers,                                application was drafted: Italian)
with an address for service in Luxembourg.
The applicant claims that the Court should:                               An action against Office for Harmonization in the Internal
                                                                          Market (trade marks and designs) (OHIM) was brought before
—     annul the decision of 14 August 2001 of the Staff                   the Court of First Instance of the European Communities on
                                                                          14 June 2002 by BMI Bertollo S.r.l., whose registered office is
      Administration and Management Directorate Luxem-
      bourg and Ispra of DG Admin:                                        in Pianezze San Lorenzo (Italy), represented by Federico
                                                                          Tedeschini, Maurizio Pinnarò and Patrik Santer.
      —     fixing, with effect from 1 November 2000, the place
            of employment as Athens, retrospectively removing             The applicant claims that the Court should:
            his right to the expatriation allowance, to the annual
            travel expenses and applying to his salary the                annul the decision of 19 March 2002 of the Third Board of
            weighting applicable to Greece;                               Appeal of the Office for Harmonization in the Internal Market
                                                                          in the appeal against the decision of 28 February 2001 of the
      —     to withhold from his remuneration, pursuant to that           Fifth Unit of the Opposition Division and consequently
            decision, any amount in general;                              uphold the registration application submitted by the applicant
                                                                          undertaking.
—     order the defendant to pay the costs.
                                                                          Pleas in law and main arguments
Pleas in law and main arguments                                           Applicant for the Com-         The applicant
                                                                          munity trade mark:
The applicant, whose place of employment was Luxembourg,                  The Community trade            Figurative mark ‘DIESELIT’ —
was seconded in the interests of the service to the Greek                 mark concerned:                Registration            application
Ministry of Health. The contested decision fixes, with retrospec-                                        No 880211, registration sought
tive effect as from 1 November 2000, his place of employment                                             in respect of goods and services
as Athens, with all the implications of that decision. Further-                                          within Classes 7, 11 and 21 (flat
more, the Commission decided to withhold from his salary,                                                irons, steam irons and ironing
pursuant to the contested decision, any amount in general.                                               boards)


title: Joined Cases T-350/04 to T-352/04: Judgment of the Court of First Instance of 19 October 2006 — Bitburger Brauerei v OHIM — Anheuser-Busch (BUD, American Bud and Anheuser Busch Bud) (Community trade mark — Opposition proceedings — Application for registration of the Community word mark BUD — Applications for registration of the Community figurative marks American Bud and Anheuser Busch Bud — Earlier national word and figurative marks including the term bit — Article 8(1)(b) of Regulation No 40/94)

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/14

         Judgment of the Court of First Instance of 19 October 2006 — Bitburger Brauerei v OHIM — Anheuser-Busch (BUD, American Bud and Anheuser Busch Bud)
   (Joined Cases T-350/04 to T-352/04) (1)

   (Community trade mark - Opposition proceedings - Application for registration of the Community word mark BUD - Applications for registration of the Community figurative marks American Bud and Anheuser Busch Bud - Earlier national word and figurative marks including the term ‘bit’ - Article 8(1)(b) of Regulation No 40/94)
   (2006/C 310/26)
   Language of the case: English
   Parties

      Applicant: Bitburger Brauerei Th. Simon GmbH (Bitburg Germany) (represented by M. Huth-Dierig, lawyer,)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by A. Folliard-Monguiral)

      Other party/ to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Anheuser-Busch, Inc., (Saint Louis, Missouri, United States (represented by: A. Renck, V. von Bomhard, A. Pohlmann, D. Ohlgart and B. Goebel, lawyers,)
   Re:
   Three applications brought against the decision of the Second Board of Appeal of OHIM of 22 June 2004 in cases R447/2002-2, R451/2002-2 and R453/2002-2, concerning opposition proceedings between Bitburger Brauerei Th. Simon and Anheuser-Busch, Inc.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Bitburger Brauerei Th. Simon GmbH to pay the costs

      (1)  OJ C 19,22.1.2005.


title: Case C-505/06: Order of the Court (Seventh Chamber) of 7 December 2007 (reference for a preliminary ruling from the Commissione tributaria regionale di Genova (Italy)) — Agenzia Dogane Circoscrizione Doganale di Genova v Euricom SpA (First paragraph of Article 104(3) of the Rules of Procedure — Community Customs Code — Inward processing — Association Agreement — Prior export of rice to a non-member country bound by a preferential customs agreement — Article 216 of the Customs Code)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/14

         Order of the Court (Seventh Chamber) of 7 December 2007 (reference for a preliminary ruling from the Commissione tributaria regionale di Genova (Italy)) — Agenzia Dogane Circoscrizione Doganale di Genova v Euricom SpA
   (Case C-505/06) (1)

   (First paragraph of Article 104(3) of the Rules of Procedure - Community Customs Code - Inward processing - Association Agreement - Prior export of rice to a non-member country bound by a preferential customs agreement - Article 216 of the Customs Code)
   (2008/C 64/20)
   Language of the case: Italian
   Referring court
   Commissione tributaria regionale di Genova (Italy)
   Parties

      Applicant: Agenzia Dogane Circoscrizione Doganale di Genova

      Defendant: Euricom SpA
   Re:
   Reference for a preliminary ruling — Commissione tributaria regionale di Genova Interpretation of Article 114, Article 115(1) and (3) and Article 216 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Rice exported under inward processing arrangements to a third country with which there is an agreement for preferential customs treatment
   Operative part of the order
   Article 216 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 is applicable to the inward processing operations referred to in Article 115(1)(b) of that regulation in which compensating products have been exported from the Community before importation of the import goods.

      (1)  OJ C 42, 24.2.2007.


title: Case T-325/09 P: Judgment of the General Court of 21 September 2011 — Adjemian and Others v Commission (Appeals — Civil service — Agents — Contract of employment for a fixed period — Refusal to conclude a new contract of employment or to renew a contract of employment for an indefinite period — Framework Agreement on fixed-term work — Directive 1999/70/EC — Article 88 of the CEOS — Commission decision concerning the maximum duration of the recourse to non-permanent staff in the Commission’s services)

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/16

         Judgment of the General Court of 21 September 2011 — Adjemian and Others v Commission
   (Case T-325/09 P) (1)

   (Appeals - Civil service - Agents - Contract of employment for a fixed period - Refusal to conclude a new contract of employment or to renew a contract of employment for an indefinite period - Framework Agreement on fixed-term work - Directive 1999/70/EC - Article 88 of the CEOS - Commission decision concerning the maximum duration of the recourse to non-permanent staff in the Commission’s services)
   2011/C 319/32
   Language of the case: French

      Parties

      Appellant: Vahan Adjemian (Angera, Italy) and the 175 agents and former agents of the European Commission whose names appear in annex to the judgment (represented by: S. Orlandi, A. Coolen, J-N. Louis and É. Marchal, lawyers)

      Other parties to the proceedings: European Commission (represented by: J. Currall and D. Martin, Agents); and Council of the European Union (represented by: M. Bauer and K. Zieleśkiewicz, Agents)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) delivered on 4 June 2009 in Joined Cases F-134/07 and F-8/08 Adjemian and Others v Commission (not yet published in the ECR), asking for that judgment to be set aside.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 4 June 2009 in Joined Cases F-134/07 and F-8/08 Adjemian and Others v Commission in so far as it found that there was no need to adjudicate on the claims made by the applicants in Case F-134/07 whose names appear in annex against the decision rejecting their complaints;

               2.

               Dismisses the appeal as to the remainder;

               3.

               The action brought by the applicants in Case F-134/07 whose names appear in annex is dismissed to the extent that that action seeks the annulment of the decisions rejecting their complaints.

               4.

               Orders Vahan Adjemian and the 175 agents and former agents of the European Commission whose names appear in annex to bear their own costs and to pay those incurred by the Commission and the Council of the European Union in these proceedings.

      (1)  OJ C 256, 24.10.2009.


title: Case C-395/15: Judgment of the Court (Third Chamber) of 1 December 2016 (request for a preliminary ruling from the Juzgado de lo Social No 33 de Barcelona — Spain) — Mohamed Daouidi v Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal (Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Articles 1 to 3 — Prohibition of all discrimination based on a disability — Whether a ‘disability’ exists — Concept of ‘long-term physical, mental, intellectual or sensory impairments’ — Charter of Fundamental Rights of the European Union — Articles 3, 15, 21, 30, 31, 34 and 35 — Dismissal of a worker who is temporarily unable to work, within the definition of national law, for an indeterminate period of time)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/9

         Judgment of the Court (Third Chamber) of 1 December 2016 (request for a preliminary ruling from the Juzgado de lo Social No 33 de Barcelona — Spain) — Mohamed Daouidi v Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal
   (Case C-395/15) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment in employment and occupation - Articles 1 to 3 - Prohibition of all discrimination based on a disability - Whether a ‘disability’ exists - Concept of ‘long-term physical, mental, intellectual or sensory impairments’ - Charter of Fundamental Rights of the European Union - Articles 3, 15, 21, 30, 31, 34 and 35 - Dismissal of a worker who is temporarily unable to work, within the definition of national law, for an indeterminate period of time))
   (2017/C 030/08)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social No 33 de Barcelona

      Parties to the main proceedings

      Applicant: Mohamed Daouidi

      Defendants: Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal

      Operative part of the judgment

   Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that:

               —

               the fact that the person concerned finds himself or herself in a situation of temporary incapacity for work, as defined in national law, for an indeterminate amount of time, as the result of an accident at work, does not mean, in itself, that the limitation of that person’s capacity can be classified as being ‘long-term’, within the meaning of the definition of ‘disability’ laid down by that directive, read in the light of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009;

               —

               the evidence which makes it possible to find that such a limitation is ‘long-term’ includes the fact that, at the time of the allegedly discriminatory act, the incapacity of the person concerned does not display a clearly defined prognosis as regards short-term progress or the fact that that incapacity is likely to be significantly prolonged before that person has recovered; and

               —

               in the context of the verification of that ‘long-term’ nature, the referring court must base its decision on all of the objective evidence in its possession, in particular on documents and certificates relating to that person’s condition, established on the basis of current medical and scientific knowledge and data.

      (1)  OJ C 354, 26.10.2015, p. 19.


title: Case T-350/08: Action brought on 22 August 2008 — Papierfabrik Hamburger-Spremberg v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/43

         Action brought on 22 August 2008 — Papierfabrik Hamburger-Spremberg v Commission
   (Case T-350/08)
   (2008/C 272/86)
   Language of the case: German
   Parties

      Applicant: Papierfabrik Hamburger-Spremberg GmbH & Co. KG (Spremberg, Germany) (represented by: S. Polster, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the contested Commission Decision C(2008) 1107 final of 2 April 2008 in State aid case N 582/2007 — Germany, according to which the regional aid in favour of Propapier PM 2 GmbH & Co. KG is compatible with the EC Treaty;

               —

               Order the Commission to pay the applicant's costs.

         Pleas in law and main arguments
   The applicant contests Commission Decision C(2008) 1107 final of 2 April 2008, by which the Commission declared that the regional aid which the Federal Republic of Germany approved for Propapier PM 2 is compatible with the EC Treaty.
   The applicant relies on the following three pleas in law in support of its action.
   First, the applicant alleges that, by not opening the formal investigation procedure, the Commission infringed Article 88(2) EC, Article 4 of Regulation (EC) No 659/1999 (1) and paragraph 68 et seq. of the Guidelines on national regional aid for 2007-2013 (2).
   By its second plea in law the applicant complains that the obligation to provide reasons was infringed in relation to the nature of the regional aid Guidelines as the exclusive basis for the decision; it also complains of infringements in relation to the need to take into account the market for recycled fibre as the upstream market for corrugated case material and regarding the assessment of the competitive position on those markets and on the downstream corrugated board market of the recipient of State aid Propapier PM 2.
   Finally the applicant claims with reference to the distortion of competition associated with the investment project affecting a total of three product markets that the regional aid approved for Propapier PM 2 is incompatible with the common market.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

      (2)  OJ 2006 C 54, p. 13.


title: Case T-423/09: Action brought on 22 October 2009 — Dashiqiao Sanqiang Refractory Materials v Council

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/38

         Action brought on 22 October 2009 — Dashiqiao Sanqiang Refractory Materials v Council
   (Case T-423/09)
   2009/C 312/62
   Language of the case: French

      Parties

      Applicant: Dashiqiao Sanqiang Refractory Materials Co. Ltd (Dashiqiao City, China) (represented by: J.-F. Bellis and R. Luff, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul the anti-dumping duty imposed with respect to the applicant by Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China (OJ 2009 L 240, p. 7), in so far as the anti-dumping duty that it sets exceeds that which would be applicable if that duty had been determined on the basis of the method applied in the original investigation in order to take account of the fact, in accordance with Article 2(10) of the basic regulation, that Chinese export VAT was not refunded;

               —

               order the Council to pay the costs.

      Pleas in law and main arguments

   By this action, the applicant, a company established in China, seeks the annulment of Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China, (1) in so far as the anti-dumping duty that it sets exceeds that which would be applicable if that duty had been determined on the basis of the method applied in the original investigation in order to take account of the fact, in accordance with Article 2(10) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (2) (basic regulation), that Chinese export VAT was not refunded.
   The applicant puts forward two pleas in support of its action.
   First, the applicant submits that the method used by the Commission in the review which gave rise to the contested regulation to deal with the fact that export VAT was not refunded infringes the principle of fair comparison between the export price and the normal value laid down by Article 2(10) of the basic regulation. Instead of deducting from the export price the non-refunded amount of export VAT, as it had done in the original investigation, the Commission, relying on an incorrect interpretation of Article 2(10)(b) of the basic regulation, compared the export price with the normal value on a VAT-inclusive basis.
   Second, the applicant submits that the Regulation is also vitiated by an infringement of Article 11(9) of the basic regulation since the method applied to take account of the fact that VAT was not refunded in the comparison between the export price and the normal value differs radically from that applied in the original investigation without any valid justification.

      (1)  OJ 2009 L 240, p. 7.

      (2)  OJ 1996 L 56, p. 1.


title: Case C-281/01: Action brought on 16 July 2001 by the Commission of the European Communities against the Council of the European Union

text:
29.9.2001             EN                    Official Journal of the European Communities                                         C 275/7
Action brought on 16 July 2001 by the Commission of                    Reference for a preliminary ruling by the Hoge Raad der
the European Communities against the Council of the                    Nederlanden by judgment of that court of 13 July 2001 in
                       European Union                                  the case of Shield Mark B.V. against Joost Kist, trading as
                                                                                Memex
                        (Case C-281/01)
                                                                                (Case C-283/01)
                        (2001/C 275/13)
                                                                                (2001/C 275/14)
An action against the Council of the European Union was                Reference has been made to the Court of Justice of the
brought before the Court of Justice of the European Communi-           European Communities by judgment of the Hoge Raad der
ties on 16 July 2001 by the Commission of the European                 Nederlanden (Netherlands Supreme Court) of 13 July 2001,
Communities, represented by Mr Hendrik van Lier and                    received at the Court Registry on 18 July 2001, for a
Mr Bernd Martenczuk, acting as agents, with an address for             preliminary ruling in the case of Shield Mark B.V. v Joost Kist,
service in Luxembourg.                                                 trading as Memex — on the following questions:
                                                                       1.   (a)   Must Article 2 of the First Council Directive
                                                                                89/104/EEC (1) of 21 December 1988 to approxi-
The Applicant requests that the Court should:                                     mate the laws of the Member States relating to trade
                                                                                marks be interpreted as precluding sounds or noises
—     annul decision 2001/469/EC of the Council of 14 May                         from being regarded as trade marks?
      2001, concerning the conclusion on behalf of the Euro-
      pean Community of the Agreement between the Govern-                   (b) If the answer to question 1(a) is in the negative, does
      ment of the United States of America and the European                       the system established by the Directive require that
      Community on the coordination of energy-efficient label-                    sounds or noises should be regarded as trade marks?
      ling programs for office equipment (1);
                                                                       2.   (a)   If the answer to question 1(a) is in the negative,
—     order the Council to pay the costs.                                         what requirements does the Directive lay down for
                                                                                sound marks as regards the reference in Article 2 to
                                                                                the need for the sign to be capable of being
                                                                                represented graphically and, in conjunction there-
                                                                                with, as regards the way in which the registration of
Pleas in law and main arguments                                                   such a trade mark must take place?
                                                                            (b) In particular, are the requirements referred to in (a)
The proposal submitted by the Commission to the Council for                       satisfied if the sound or the noise is registered in the
the conclusion of the Energy Star Agreement was based on                          form of:
Article 133 EC in conjunction with Article 300 EC. Amending
the Commission’s proposal, the Council decided to base its                        —     musical notation;
decision concerning the conclusion of the aforementioned
Agreement not on Article 133, but on Article 175(1) in                            —     an onomatopoeic description in words;
conjunction with Article 300 EC.
                                                                                —     a description in words in some other way;
The Commission considers that, given its aims and content,                        —     a graphical representation such as a spectro-
the Energy Star Agreement falls entirely within the scope of                            gram or sonogram;
the Community’s common commercial policy and that its
conclusion should have been based on Article 133. The                             —     a sound recording medium annexed to the
decision concerning the conclusion of the Agreement should                              registration form;
not, therefore, have been based on Article 175(1), which
concerns measures adopted in the field of the Community’s
                                                                                —     a digital recording that may be listened to on
environmental policy. The Commission considers the choice
                                                                                the internet;
of the legal basis by the Council for the conclusion of the
Agreement to be erroneous, and the attached decision to be
illegal.                                                                          —     a combination of those methods;
                                                                                —     some other method, and if so, which?
(1) OJ L 172, 26.06.2001, p. 1.
                                                                       (1) OJ 1989 L 40, p. 1.


title: Case C-350/13: Order of the Court (Eighth Chamber) of 5 June 2014 (request for a preliminary ruling from the Augstākās tiesas (formerly Augstākās tiesas Senāts) — Latvia) — Antonio Gramsci Shipping Corp. and Others v Aivars Lembergs (Request for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Recognition and enforcement of provisional and protective measures — Annulment of the initial decision — Maintenance of the request for a preliminary ruling — No need to adjudicate)

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/7

         Order of the Court (Eighth Chamber) of 5 June 2014 (request for a preliminary ruling from the Augstākās tiesas (formerly Augstākās tiesas Senāts) — Latvia) — Antonio Gramsci Shipping Corp. and Others v Aivars Lembergs
   (Case C-350/13) (1)

   ((Request for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Recognition and enforcement of provisional and protective measures - Annulment of the initial decision - Maintenance of the request for a preliminary ruling - No need to adjudicate))
   2014/C 261/10
   Language of the case: Latvian

      Referring court

   Augstākās tiesas (formerly Augstākās tiesas Senāts)

      Parties to the main proceedings

      Applicants: Antonio Gramsci Shipping Corp., Apollo Holdings Corp., Arctic Seal Shipping Co. Ltd, Atlantic Leader Shipping Co. Ltd, Cape Wind Trading Co. Ltd, Clipstone Navigation SA, Dawnlight Shipping Co. Ltd, Dzons Rids Shipping Co., Faroship Navigation Co. Ltd, Gaida Shipping Co., Gevostar Shipping Co. Ltd, Hose Marti Shipping Co., Imanta Shipping Co. Ltd, Kemeri Navigation Co., Klements Gotvalds Shipping Co., Latgale Shipping Co. Ltd, Limetree Shipping Co. Ltd, Majori Shipping Co. Ltd, Noella Marītime Co. Ltd, Razna Shipping Co., Sagewood Trading Inc., Samburga Shipping Co. Ltd, Saturn Trading Co., Taganroga Shipping Co., Talava Shipping Co. Ltd, Tangent Shipping Co. Ltd, Viktorio Shipping Co., Wilcox Holding Ltd, Zemgale Shipping Co. Ltd, Zoja Shipping Co. Ltd

      Defendant: Aivars Lembergs

      Operative part of the order

   There is no need to give a ruling on the request for a preliminary ruling made by the Augstākās tiesas Senāts (Latvia) by decision of 12 June 2013.

      (1)  OJ C 252, 31.8.2013.