title: Case T-366/03: Action brought on 3 November 2003 by the Land Oberösterreich against the Commission of the European Communities

text:
7.2.2004              EN                         Official Journal of the European Union                                           C 35/11
Action brought on 3 November 2003 by the Land                            forms a part. Moreover, agriculture in the Province of Upper
Oberösterreich against the Commission of the European                    Austria is almost exclusively based on small farms, and a
                          Communities                                    further specific element is the constant increase in the area
                                                                         under organic farming and in farming businesses operating on
                                                                         an organic basis. The study carried out by Mr Werner Müller
                        (Case T-366/03)
                                                                         found that it was impossible for conventional, ecological, non-
                                                                         genetically modified crop production and natural flora to co-
                         (2004/C 35/17)                                  exist with wide-scale GMO cultivation, a set of circumstances
                                                                         which the Commission should have taken into account with
                                                                         regard to the specific structure of the agriculture of the region
                  (Language of the case: German)                         of Upper Austria.
                                                                         Finally, the applicant claims that the provisions notified to the
An action against the Commission of the European Communi-
                                                                         Commission constitute a precautionary or preventive measure
ties was brought before the Court of First Instance of the
                                                                         in terms of Article 174(2) EC, and that because they will be in
European Communities on 3 November 2003 by the Land
                                                                         force for only three years the functioning of the internal
Oberösterreich (Province of Upper Austria, Austria), represent-
                                                                         market is affected — if at all — as little as possible; thus the
ed by F. Mittendorfer, lawyer.
                                                                         national measures may be assumed to be proportionate. The
                                                                         result is that the conditions laid down in Article 95(5) EC are
The applicant claims that the Court should:                              fulfilled, and so the Commission should have considered the
                                                                         national provisions notified to it to be in accordance with
                                                                         Community law.
—     annul Commission Decision C(2003) 3117 final of
      2 September 2003 by which national provisions on
      banning GMOs in Upper Austria, notified by Austria in
      accordance with Article 95(5) EC, were rejected;
—     order the Commission to pay the costs of the case.
                                                                         Action brought on 14 November 2003 by Fachvereini-
Pleas in law and main arguments                                          gung Mineralfaserindustrie e. V. Deutsche Gruppe der
                                                                         EURIMA — European Insulation Manufacturers’ Associ-
                                                                         ation against the Commission of the European Communi-
The subject matter of the action is the Commission Decision                                             ties
of 2 September 2003 by which the national provisions
banning the use of genetically modified organisms in Upper
Austria were rejected.                                                                           (Case T-375/03)
The applicant claims that the Commission by that decision                                         (2004/C 35/18)
infringes the right of the Province of Upper Austria to bring
in, following the adoption by the Council or the Commission
of harmonisation measures, national provisions based on new                                (Language of the case: German)
scientific knowledge for the protection of the environment or
the working environment on grounds of a specific problem
for Austria which arose following the adoption of the harmon-
isation measures.                                                        An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance on
                                                                         14 November 2003 by Fachvereinigung Mineralfaserindustrie
The applicant submits that the Commission did not enable the             e. V. Deutsche Gruppe der EURIMA — European Insulation
Province of Upper Austria to be informed of the opinion of               Manufacturers’ Association, of Frankfurt am Main (Germany),
the European Food Safety Authority (EFSA) of 4 July 2003, on             represented by T. Schmidt-Kötters, lawyer.
which the Commission’s decision was based, and to comment
thereon, during the hearing of the interested parties. The
decision-making process did not comply with constitutional               The applicant claims that the Court should:
principles relating to proper procedure and therefore consti-
tuted an infringement of essential procedural requirements.
                                                                         —      annul Commission Decision C(2003) 1473 final of 9 July
                                                                                2003 on State aid No N 694/2002 — Germany, measure
Furthermore, the applicant submits that the national pro-                       to promote the use of insulating materials produced from
visions satisfy the requirements for Article 95(5) EC to apply.                 renewable raw materials;
They constitute a measure to protect the conservation of the
natural environment, of which biodiversity in a broad sense              —      order the Commission to pay the costs of the case.


title: Case C-201/03: Action brought on 13 May 2003 by the Commission of the European Communities against the Kingdom of Sweden

text:
5.7.2003                 EN                       Official Journal of the European Union                                          C 158/15
Action brought on 13 May 2003 by the Commission                           Action brought on 12 May 2003 by the Commission
of the European Communities against the Kingdom of                        of the European Communities against the Republic of
                                Sweden                                                                 Austria
                                                                                (Case C-203/03)
                           (Case C-201/03)
                                                                                (2003/C 158/26)
                           (2003/C 158/25)
                                                                          An action against the Republic of Austria was brought before
                                                                          the Court of Justice of the European Communities on 12 May
                                                                          2003 by the Commission of the European Communities,
                                                                          represented by Nicola Yerrell, of its Legal Service, and Horstpe-
An action against the Kingdom of Sweden was brought before                ter Kreppel, a Labour Court judge on secondment to the Legal
the Court of Justice of the European Communities on 13 May                Service of the Commission in the course of an exchange of
2003 by the Commission of the European Communities,                       national officials, with an address for service in Luxembourg.
represented by L. Stöm och and M. Konstantinidis, acting as
Agents, with an address for service in Luxembourg.
                                                                          The applicant claims that the Court should:
                                                                          1.    Declare that, by maintaining in force,
The Commission claims that the Court should:
                                                                                (a)   in Paragraph 2 of the Regulation of the Federal
—      declare that, by failing to adopt the necessary measures                       Minister for the Economy and Labour concerning
       to ensure that priority is given to the processing of waste                    prohibitions and restrictions of employment of
       oils by regeneration where technical, economic and                             female workers, a general prohibition, with few
       organisational constraints so allow, the Kingdom of                            exceptions, of employment of women in mining
       Sweden has failed to fulfil its obligations under                              underground and,
       Article 3(1) of Council Directive 75/439/EEC ( 1) as
       amended by Directive 87/101/EEC (2),                                     (b) in Paragraphs 8 and 31 of the Regulation on
                                                                                compressed air and diving work, a general prohib-
                                                                                ition of employment of women in compressed air
—      order the Kingdom of Sweden to pay the costs.                                  work and in diving work,
                                                                                the Republic of Austria has infringed its obligations under
                                                                                Articles 2 and 3 of Council Directive 76/207/EEC of
                                                                                9 February 1976 ( 1) on the implementation of the
                                                                                principle of equal treatment for men and women as
Pleas in law and main arguments                                                 regards access to employment, vocational training and
                                                                                promotion, and working conditions, and also under
                                                                                Articles 10 and 249 EC.
Member States are required not only to adopt binding national             2.    Order the Republic of Austria to pay the costs.
measures in order to comply with the provisions of Article 3(1)
of the directive but also to adopt measures which make it
possible to apply the provisions in practice. The percentage
for the recycling of waste oils in Sweden in the period 1995-
2000 was 0 %. The Swedish Government has therefore not                    Pleas in law and main arguments
taken the measures which render it possible de facto to
regenerate waste oils in accordance with the requirements set             —     The prohibition of employment of female workers in
out in Article 3(1) of the directive.                                           mining underground:
                                                                                Under Article 3(1) of Directive 76/207/EEC discrimi-
                                                                                nation on grounds of sex in the conditions for access to
( 1) Of 16 June 1975 on the disposal of waste oils, OJ 1975 L 194,              jobs is prohibited.
     p. 23.
( 2) Of 22 December 1986 amending Directive 75/439/EEC on the                   The general prohibition of employment of women in
     disposal of waste oils, OJ 1987 L 42, p. 43.                               mining underground provided for in Paragraph 16 of the
                                                                                Austrian Working Hours Regulation of 30 April 1938
                                                                                was amended only slightly by Paragraph 2 of the
                                                                                Regulation of the Federal Minister for the Economy and
                                                                                Labour concerning prohibitions and restrictions of


title: Case T-403/07: Action brought on 8 November 2007 — Union Nationale de l'Apiculture Française and Others v Commission

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/19

         Action brought on 8 November 2007 — Union Nationale de l'Apiculture Française and Others v Commission
   (Case T-403/07)
   (2008/C 8/35)
   Language of the case: French
   Parties

      Applicants: Union Nationale de l'Apiculture Française (Paris, France), Deutscher Berufs- und Erwerbsimkerbund eV (Soltau, Germany), Unione Nazionale Associazioni Apicoltori Italiani (Castel San Pietro Terme, Italy) and Asociación Galega de Apicultura (Santiago de Compostela, Spain) (represented by: B. Fau, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicants claim that the Court should:

               —

               declare admissible the application for annulment of Commission Directive 2007/52/EC of 16 August 2007;

               —

               annul Commission Directive 2007/52/EC of 16 August 2007;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   By this action, the applicants are seeking the annulment of Commission Directive 2007/52/EC of 16 August 2007, amending Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant products on the market, to include ethoprophos, pirimiphos-methyl and fipronil as active substances (1).
   In support of their action for annulment, the applicants are putting forward three pleas.
   First of all, they submit that the contested directive was adopted in breach of the procedural rules which, the applicants claim, the Commission was required to comply with. In the applicants' submission, even if the Commission may have been authorised by the Council to adopt, by means of a directive, the implementing measures necessary to apply Directive 91/414/EEC, it does not have the authority to amend that latter directive, in particular with regard to the obligations on the Member States. The applicants submit that the contested directive is not a mere implementing directive but a directive amending Directive 91/414/EEC and, as such, should have been adopted pursuant to the procedure requiring prior consultation of the European Parliament. In the absence of such consultation, it is vitiated by a procedural defect.
   In addition, the applicants allege that, under the cloak of amendments to the national authorisation procedures for the placing of plant products on the market, the contested directive in fact infringes the uniform rules of assessment laid down by the basic directive 91/414/EEC with regard to the inclusion of an active substance in Annex I thereto.

      (1)  OJ L 214, p. 3.


title: Case C-2/08: Judgment of the Court (Second Chamber) of 3 September 2009 (Reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Amministrazione dell’Economia e delle Finanze, Agenzia delle Entrate v Fallimento Olimpiclub Srl (VAT — Primacy of Community law — Provision of national law laying down the principle of res judicata)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/5

         Judgment of the Court (Second Chamber) of 3 September 2009 (Reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Amministrazione dell’Economia e delle Finanze, Agenzia delle Entrate v Fallimento Olimpiclub Srl
   (Case C-2/08) (1)

   (VAT - Primacy of Community law - Provision of national law laying down the principle of res judicata)
   2009/C 256/09
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Parties to the main proceedings

      Applicants: Amministrazione dell’Economia e delle Finanze, Agenzia delle Entrate

      Defendant: Fallimento Olimpiclub Srl

      Re:

   Reference for a preliminary ruling — Corte suprema di cassazione — Interpretation of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Primacy of Community law — Provision of national law laying down the principle of res judicata leading to a result which is incompatible with Community VAT law

      Operative part of the judgment

   Community law precludes the application, in circumstances such as those of the case before the referring court, of a provision of national law, such as Article 2909 of the Italian Civil Code, in a dispute concerning value added tax and relating to a tax year for which no final judicial decision has yet been delivered, to the extent that it would prevent the national court seised of that dispute from taking into consideration the rules of Community law concerning abusive practice in the field of value added tax.

      (1)  OJ C 79, 29.3.2008.


title: Case T-125/05: Order of the Court of First Instance of  7 October 2005  — Umwelt- und Ingenieurtechnik v Commission

text:
               10.12.2005

               EN

               Official Journal of the European Union

               C 315/19

         Order of the Court of First Instance of 7 October 2005 — Umwelt- und Ingenieurtechnik v Commission
   (Case T-125/05) (1)

   (2005/C 315/35)

      Language of the case: German

   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 115, 14.5.2005.


title: Judgment of the Court of 21 September 1999 in Joined Cases C-115/97, C-116/97 and C-117/97 (references for a preliminary ruling from the Kantongerecht, Roermond): Brentjens' Handelsonderneming BV v Stichting Bedrĳfspensioenfonds voor de Handel in Bouwmaterialen (Compulsory affiliation to a sectoral pension scheme — Compatibility with competition rules — Classification of a sectoral pension fund as an undertaking)

text:
C 6/2                   EN                      Official Journal of the European Communities                                               8.1.2000
the interpretation of Articles 85, 86 and 90 of the EC Treaty              a preliminary ruling in the proceedings pending before that
(now Articles 81 EC, 82 EC and 86 EC) — the Court, composed                court between Brentjens’ Handelsonderneming BV and Stich-
of: G.C. Rodrı́guez Iglesias, President, J.-P. Puissochet,                 ting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen
G. Hirsch and P. Jann, Presidents of Chambers, J.C. Moitinho               — on the interpretation of Article 3(g) of the EC Treaty (now,
de Almeida (Rapporteur), C. Gulmann, J.L. Murray, D.A.O. Ed-               after amendment, Article 3(1)(g) EC) and Articles 5, 85, 86
ward, H. Ragnemalm, L. Sevón and M. Wathelet, Judges;                     and 90 of the EC Treaty (now Articles 10 EC, 81 EC, 82 EC
F.G. Jacobs, Advocate General; D. Louterman-Hubeau, Princi-                and 86 EC) — the Court, composed of: G.C. Rodrı́guez Iglesias,
pal Administrator, for the Registrar, has given a judgment on              President, J.-P. Puissochet, G. Hirsch and P. Jann, Presidents of
21 September 1999, in which it has ruled:                                  Chambers, J.C. Moitinho de Almeida (Rapporteur), C. Gul-
                                                                           mann, J.L. Murray, D.A.O. Edward, H. Ragnemalm, L. Sevón
1. Article 3(g) of the EC Treaty (now, after amendment, Article            and M. Wathelet, Judges; F. G. Jacobs, Advocate General;
    3(1)(g) EC) and Articles 5 and 85 of the EC Treaty (now                D. Louterman-Hubeau, Principal Administrator, for the Regis-
    Articles 10 EC and 81 EC) do not prohibit a decision by the            trar, has given a judgment on 21 September 1999, in which it
    public authorities to make affiliation to a sectoral pension fund      has ruled:
    compulsory at the request of organisations representing employers
    and workers in a given sector.
2. A pension fund charged with the management of a supplementary           1. A decision taken by organisations representing employers and
    pension scheme set up by a collective agreement concluded                   workers in a given sector, in the context of a collective agreement,
    between organisations representing employers and workers in a               to set up in that sector a single pension fund responsible for
    given sector, to which affiliation has been made compulsory by              managing a supplementary pension scheme and to request the
    the public authorities for all workers in that sector, is an                public authorities to make affiliation to that fund compulsory for
    undertaking within the meaning of Article 85 et seq. of the                 all workers in that sector does not fall within the scope of Article
    Treaty.                                                                     85 of the EC Treaty (now Article 81 EC).
3. Articles 86 and 90 of the EC Treaty (now Articles 82 EC and
    86 EC) do not preclude the public authorities from conferring on
    a pension fund the exclusive right to manage a supplementary           2. Article 3(g) of the EC Treaty (now, after amendment, Article
    pension scheme in a given sector.                                           3(1)(g) EC), Article 5 of the EC Treaty (now Article 10 EC) and
                                                                                Article 85 of the Treaty do not prohibit a decision by the public
(1) OJ No C 133 of 4.5.1996.                                                    authorities to make affiliation to a sectoral pension fund
                                                                                compulsory at the request of organisations representing employers
                                                                                and workers in a given sector.
                                                                           3. A pension fund charged with the management of a supplementary
                                                                                pension scheme set up by a collective agreement concluded
                 JUDGMENT OF THE COURT
                                                                                between organisations representing employers and workers in a
                                                                                given sector, to which affiliation has been made compulsory by
                      of 21 September 1999                                      the public authorities for all workers in that sector, is an
                                                                                undertaking within the meaning of Article 85 et seq. of the
in Joined Cases C-115/97, C-116/97 and C-117/97 (refer-                         Treaty.
ences for a preliminary ruling from the Kantongerecht,
Roermond): Brentjens’ Handelsonderneming BV v Stich-
ting Bedrijfspensioenfonds voor de Handel in Bouwmat-
                             erialen (1)                                   4. Articles 86 and 90 of the EC Treaty (now Articles 82 EC and
                                                                                86 EC) do not preclude the public authorities from conferring on
(Compulsory affiliation to a sectoral pension scheme —                          a pension fund the exclusive right to manage a supplementary
Compatibility with competition rules — Classification of a                      pension scheme in a given sector.
           sectoral pension fund as an undertaking)
                           (2000/C 6/03)
                    (Language of the case: Dutch)                          (1) OJ No C 142 of 10.5.1997.
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
In Joined Cases C-115/97, C-116/97 and C-117/97: references
to the Court under Article 177 of the EC Treaty (now Article
234 EC) from the Kantongerecht, Roermond, Netherlands, for


title: Order of the Court (First Chamber) of 12 July 2001 in Case C-102/00 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Welthgrove BV v Staatssecretaris van Financiën (Article 104(3) of the Rules of Procedure — Article 4 of the Sixth VAT Directive — Economic activity — Involvement of a holding company in the management of its subsidiaries)

text:
13.10.2001              EN                      Official Journal of the European Communities                                            C 289/7
Saccarifera Italiana Agroindistriale SpA (ISI), established in             ruling in connection with an application for registration in the
Padua, Italy, Sadani Zuccerifici, a division of SECI — Società             commercial register made by HSB-Wohnbau GmbH, on the
Esercizi Commerciali Industriali SpA, established in Bologna,              interpretation of Articles 43 EC and 48 EC — the Court (Fifth
Italy, Sadam Castigliognese SpA, established in Bologna, Sadam             Chamber), composed of: A. La Pergola, President of the
Abruzzo SpA, established in Bologna, Zuccherificio del Molise              Chamber, M. Wathelet (Rapporteur), P. Jann, L. Sevón and
SpA, established in Termoli, Italy, Società Fondiaria Industriale          S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate
Romagnola SpA (SFIR), established in Cesena, Italy, represent-             General; R. Grass, Registrar, has made an order on 10 July
ed by B. O’Connor, Solicitor, and I. Vigliotti, avvocato, —                2001, in which it has ruled:
appeal against the order of the Court of First Instance of the
European Communities (First Chamber) of 8 July 1999 in Case
T-158/95 Eridania and Others v Council [1999] ECR II-2219,                 The Court of Justice of the European Communities clearly has no
seeking to have that order set aside, the other parties to the             jurisdiction to answer the questions put by the Amtsgericht Heidelberg
proceedings being, Council of the European Union (Agents:                  in its order of 3 March 2000.
I. Dı́ez Parra and J.P. Hix), Commission of the European
Communities (Agent: F.P. Ruggeri Laderchi) and Ponteco
Zuccheri SpA, established in Pontelagoscuro, Italy — the Court             (1) OJ C 149 of 27.5.2000.
(Second Chamber), composed of V. Skouris, President of the
Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges;
J. Mischo, Advocate General; R. Grass, Registrar, has given a
judgment on 28 June 2001, in which it:
1.    Dismisses the appeal;
2.    Orders Eridania SpA, Industria Saccarifera Italiana Agroindis-                            ORDER OF THE COURT
      triale SpA (ISI), Sadam Zuccerifici, a division of SECI
      — Società Esercizi Commerciali Industriali SpA, Sadam
      Castigliognese SpA, Sadam Abruzzo SpA, Zuccherificio del                                        (First Chamber)
      Molise SpA and Società Fondiaria Industriale Romagnola SpA
      (SFIR) jointly to pay the costs;
                                                                                of 12 July 2001
3.    Orders the Commission to bear its own costs.
                                                                           in Case C-102/00 (reference for a preliminary ruling from
( 1) OJ C 352, 4.12.1999.                                                  the Hoge Raad der Nederlanden): Welthgrove BV v
                                                                                Staatssecretaris van Financiën (1)
                                                                           (Article 104(3) of the Rules of Procedure — Article 4 of the
                                                                           Sixth VAT Directive — Economic activity — Involvement of
                                                                             a holding company in the management of its subsidiaries)
                    ORDER OF THE COURT
                                                                                (2001/C 289/13)
                          (Fifth Chamber)
                                                                                (Language of the case: Dutch)
                           of 10 July 2001
                                                                           (Provisional translation; the definitive translation will be published
in Case C-86/00 (reference for a preliminary ruling from                                       in the European Court Reports)
   the Amtsgericht Heidelberg): HSB-Wohnbau GmbH (1)
                                                                           In Case C-102/00: reference to the Court under Article 234
(Reference for a preliminary ruling — Entry in the commer-                 from the Hoge Raad der Nederlanden (Supreme Court of the
cial register of the transfer of a company’s registered office             Netherlands) (Netherlands) for a preliminary ruling in the
              — Lack of jurisdiction of the Court)                         proceedings pending before that court between Welthgrove
                                                                           BV and Staatssecretaris van Financiën — on the interpretation
                          (2001/C 289/12)                                  of Article 4, Article 11A(1)(a) and Article 13B(d)(5) of Sixth
                                                                           Council Directive 77/388/EEC of 17 May 1977 on the
                   (Language of the case: German)                          harmonisation of the laws of the Member States relating to
                                                                           turnover taxes — Common system of value added tax: uniform
                                                                           basis of assessment (OJ 1977 L 145, p. 1) — the Court
(Provisional translation; the definitive translation will be published     (First Chamber), composed of: M. Wathelet, President of the
                   in the European Court Reports)                          Chamber, P. Jann and L. Sevón (Rapporteur), Judges; C. Stix-
                                                                           Hackl, Advocate General; R. Grass, Registrar, has given an
In Case C-86/00: reference to the Court under Article 234 EC               order on 12 July 2001, the operative part of which is as
from the Amtsgericht Heidelberg (Germany), for a preliminary               follows:
 ---pagebreak--- C 289/8                 EN                     Official Journal of the European Communities                                    13.10.2001
Involvement of a holding company in the management of its                 Appeal brought on 14 May 2001 by the Commission of
subsidiaries must be regarded as an economic activity within the          the European Communities against the judgment deliver-
meaning of Article 4(2) of Sixth Council Directive 77/388/EEC of          ed on 6 March 2001 by the Court of First Instance of
17 May 1977 on the harmonisation of the laws of the Member                the European Communities (Third Chamber) in Case
States relating to turnover taxes — Common system of value added          T-331/94 IPK-München GmbH v Commission of the
tax: uniform basis of assessment, only in so far as it entails carrying                       European Communities
out transactions which are subject to VAT by virtue of Article 2 of
that directive.
                                                                                (Case C-200/01 P)
                                                                                (2001/C 289/15)
(1) OJ 163 of 10.6.2000.
                                                                          An appeal has been brought before the Court of Justice of the
                                                                          European Communities on 14 May 2001 by the Commission
                                                                          of the European Communities, represented by Jürgen Grun-
                                                                          wald, Legal Adviser, of its Legal Service, acting as Agent, with
                                                                          an address for service in Luxembourg at the office of Gérard
                                                                          Berscheid, Legal Adviser to the Commission of the European
                                                                          Communities, Wagner Centre, Kirchberg, against the judgment
Reference for a preliminary ruling by the Tribunal Tribu-                 delivered on 6 March 2001 by the Court of First Instance of
tário de Primeira Instancia do Porto, 2.o Juı́zo —                       the European Communities (Third Chamber) in Case
1.a Secção, by decision of that court of 7 November 2000                 T-331/94 IPK-München GmbH v Commission of the European
in the case of Caves Costa Verde, L.da against Fazenda                    Communities (1).
                               Pública
                          (Case C-154/01)                                 The appellant claims that the Court should:
                                                                          1.    annul the judgment of the Court of First Instance of
                         (2001/C 289/14)                                        6 March 2001 in Case T-331/94 and dismiss the action;
Reference has been made to the Court of Justice of the                    2.    in the alternative:
European Communities by decision of the Tribunal Tributario                     annul the judgment of the Court of First Instance cited in
de 1.a Instância do Porto 2.o Juı́zo — 1.a Secção (Tax Court of                paragraph (1) and refer the case back to the Court of First
First Instance, Oporto, Second Division, First Chamber) of                      Instance;
7 November 2000, which was received at the Court Registry
on 9 April 2001, for a preliminary ruling in the case of Caves
Costa Verde, L.da against Fazenda Pública on the following               3.    order the respondent to pay the costs of the proceedings.
question:
Are the charges assessed under Decree-laws No 26317, of                   Pleas in law and main arguments
30 January 1936, No 40037, of 18 January 1955 and No 321-
A/86, of 25 September 1986 compatible with the Sixth
                                                                          —     Incomplete legal assessment of the basis of the contested
Directive (1), having regard to the fact that according to the
                                                                                decision. Infringement of the prohibition of unjust enrich-
appellant, the charges should be assessed on the basis of
                                                                                ment.
turnover whereas the Instituto da Vinha e do Vinho argues
that they constitute a marketing charge on the sales of wine in
bulk?                                                                     —     Incorrect legal assessment of the collusion between
                                                                                Mr Tzoanos, the Greek undertaking 01-Pliroforiki and
                                                                                the respondent.
In the absence of sufficient information in the order for
reference, the Court of Justice (Fifth Chamber), by order of              —     Incorrect legal assessment of the Commission’s proposal
11 July 2001, declared the reference for a preliminary ruling                   to include the Studienkreis undertaking in the project.
manifestly inadmissible.
                                                                          —     Failure to examine the legal consequences of a breach of
                                                                                bona fides. As a legal consequence of its assessment the
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the                    Court of First Instance ought not to have set aside the
    harmonization of the laws of the Member States relating to                  contested decision in its entirety but only in so far as the
    turnover taxes — Common system of value added tax: uniform                  Commission had thereby refused to participate financially
    basis of assessment (OJ L 145, 13.6.1977, p. 1).                            in the expenditure which the respondent had lawfully
                                                                                incurred with regard to the sixth and seventh phases of
                                                                                the project but which it had been unable to complete for
                                                                                lack of time.


title: Case T-174/13 P: Judgment of the General Court of 23 January 2014 — Commission v BO (Appeal — Civil Service — Contractual agents — Social security — Reimbursement of transport costs — Transport costs incurred for linguistic reasons — Article 19(2) of the Joint rules on sickness insurance for officials of the European Communities — Paragraph 2.5 in Chapter 12 of Title II of the general implementing directives concerning the reimbursement of medical costs)

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/20

      Judgment of the General Court of 23 January 2014 — Commission v BO
      (Case T-174/13 P) (1)

      (Appeal - Civil Service - Contractual agents - Social security - Reimbursement of transport costs - Transport costs incurred for linguistic reasons - Article 19(2) of the Joint rules on sickness insurance for officials of the European Communities - Paragraph 2.5 in Chapter 12 of Title II of the general implementing directives concerning the reimbursement of medical costs)
      (2014/C 71/37)
      Language of the case: French

         Parties

         Appellant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

         Other party to the proceedings: BO (Amman, Jordan) (represented by: L. Levi, M. Vandenbussche and C. Bernard-Glanz, lawyers)

         Re:

      Appeal brought against the judgment delivered by the Civil Service Tribunal (First Chamber) on 15 January 2013 in Case F-27/11 BO v Commission, not yet published in the ECR, seeking the setting aside of that judgment.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders the European Commission to bear its costs and those incurred by BO in the context of the present proceedings.

         (1)  OJ C 164, 8.6.2013.


title: Case T-292/11 R: Order of the President of the General Court of 29 July 2011 — Cemex and Others v Commission (Interim measures — Competition — Request for information Article 18(3) of Regulation (EC) No 1/2003 — Application for suspension of application — Lack of urgency)

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/23

         Order of the President of the General Court of 29 July 2011 — Cemex and Others v Commission
   (Case T-292/11 R)
   (Interim measures - Competition - Request for information Article 18(3) of Regulation (EC) No 1/2003 - Application for suspension of application - Lack of urgency)
   2011/C 282/48
   Language of the case: Spanish

      Parties

      Applicants: Cemex S.A.B. de C.V. (Monterrey, Mexico), New Sunward Holding BV (Amsterdam, The Netherlands), Cemex España, SA (Madrid, Spain), CEMEX Deutschland AG (Ratingen, Germany), Cemex UK (Egham, Surrey, United Kingdom), CEMEX Czech Operations s.r.o. (Prague, Czech Republic), Cemex France Gestion (Rungis, France) and CEMEX Austria AG (Langenzersdorf, Austria) (represented by: J. Folguera Crespo, P. Vidal Martínez, H. González Durántez and B. Martínez, lawyers)

      Defendant: European Commission (represented by: É. Gippini Fournier, F. Castilla Contreras and C. Hödlmayr, acting as Agents, assisted by J. Rivas, lawyer)

      Re:

   Application for suspension of application of Commission Decision C(2001) 2360 final of 30 March 2011 in proceedings pursuant to Article 18(3) of Council Regulation (EC) No 1/2003 (Case COMP/39.520 — Cement and related products).

      Operative part of the order

               1.

               The application for suspension of application is rejected.

               2.

               The costs are reserved.


title: Action brought on 6 February 1996 by John Carvel and Guardian Newspapers Limited against the Council of the European Union (Case T-19/96)

text:
No C 133/24          EN                  Official Journal of the European Communities                                      4. 5 . 96
adversely affect the possibility for a part transferee of the       Action brought on 6 February 1996 by John Carvel and
land to produce a proper quantity of milk on it for up to ten       Guardian Newspapers Limited against the Council of the
years from the expiry of that period.                                                       European Union
                                                                                ( Case T-19/96 )
SLOM III producers are a clearly defined group. Just as the                                    ( 96/C 133/56 )
Community legislature has recognized that it must treat
differently those producers who held on to their entire
holdings thoughout the period of their non-marketing                                (Language of the case: English)
schemes and those who transferred a part of it, treating them
as two separate groups for SLOM allocation purposes, the
Community authorities must know that for that group of              An action against the Council of the European Union was
part-transferors there exists a corresponding separate and          brought before the Court of First Instance of the European
                                                                    Communities on 6 February 1996 by John Carvel and
distinct group of 'part-transferees'.
                                                                    Guardian Newspapers Limited, represented by Onno
                                                                    W. Brouwer and Frédéric P. Louis, with an address for
The applicant finally contends that his legitimate                  service in Luxembourg at the Chambers of Marc Loesch,
expectation that he would be able to resume milk                    11 , rue Goethe .
production at the end of the non-marketing scheme with
which he had agreed to comply, has been frustrated by the
Council and the       Commission's     failure  to  introduce       The applicants claim that the Court should:
SLOM III quota until 1993 .
                                                                    — annul the decision of the Council whereby the Council
                                                                         refuses access to the text of the decisions adopted by the
                                                                        Justice and Home Affairs             Council of 29      and
                                                                         30 November 1993 ,
                                                                    — order the Council to pay the applicants' costs pursuant
                                                                         ot Article 87 of the Rules of Procedure of the Court of
Action brought on 26 January 1996 by Donald George                       First Instance .
Gage and David John Gage against the Council of the
European Union and the Commission of the European
                         Communities                                Pleas in law and main arguments
                       ( Case T-11 /96 )
                          96/C 133/55                               The same applicants as in Case T-194/94 resolved by
                                                                    judgment of 19 October 1 995 , challenge the Council's
                                                                    decision in its letter of 27 November 1995 , refusing to
              (Language of the case: English)                       distribute to them the text of the decisions adopted by the
                                                                    Justice and Home Affairs Council of 29 and 30 November
                                                                    1993 .
An action against the Council of the European Union and
the Commission of the European Communities was brought              In the abovementioned judgment, the Court of First
before the Court of First Instance of the European                  Instance found that the defendant, by refusing to send to the
Communities on 26 January 1 996 by Donald George Gage               applicants documents relating to a Justice and Home Affairs
and David John Gage, represented by Alan Maclean and                Council, as well as documents relating to an Agricultural
Joanne Keddie, Dawson & Co, 2 New Square, Lincoln's                 Council, had failed to balance the interest it may have in
Inn, London WC2A 3RZ, England .                                     keeping the said documents confidential, in order to
                                                                    safeguard the confidentiality of its proceedings, with the
The applicant claims that the Court should:                         interest of the applicants in gaining access to those
                                                                    documents. The contested decision in the present case was
                                                                    taken in order to comply with that judgment.
— order damages against the Council and/or the
    Commission as per a report of D R Gasson, included in
    the application, and                                            The applicants submit first of all that the decision
                                                                    constituted by the Council's letter of 27 November 1995
— order the Council and/or the Commission to pay the                infringes Council Decision 93/731 , in so far as the defendant
    costs .                                                         institution, contrary to the wording of that Decision, which
                                                                    lays down rules on access to documents, sent to the
                                                                    applicants a press release containing a list of the decisions
Pleas in law and main arguments                                     taken at the meeting of the Justice and Home Affairs
                                                                    Council on 29 and 30 November 1993 , instead of providing
The pleas in law and main arguments are the same as those           them with the actual text of the documents they had
in Case T- 1 0/96 Benjamin Laurence Lay.                            requested .
                                                                    As a second ground for annulment, the applicants submit
                                                                    that the Council did not provide the applicants with any
 ---pagebreak--- 4 . 5 . 96            EN                  Official Journal of the European Communities                                No C 133/25
reasoning for its decision, thereby infringing Article 7 ( 3 ) of    He maintains, first, that, in view of his having been turned
Council Decision 93/73 1 /EC and Article 190 of the EC               down in favour of a candidate who did not meet the
Treaty.                                                              minimum requirements as to specific knowledge and
                                                                     experience, in disregard of Article 7 of the Staff Regulations,
                                                                     the appointment in issue was not in the interest of
                                                                     the service . Consequently, that appointment appears
                                                                     necessarily to be vitiated by misuse of powers.
                                                                     Moreover, there has been a breach of the principle of the
Action brought on 21 February 1996 by Antonio Giannini               protection of legitimate expectations, in that, contrary to
  against the Commission of the European Communities                 the Commission's current practice in such matters, the
                        ( Case T-21 /96 )                            description of the post to be filled contained a serious
                          ( 96/C 133/57)                             anomaly, since, by contrast with the descriptions normally
                                                                     given in respect of almost all posts advertised by the
                                                                     Commission, it made no reference to the tasks to be carried
                (Language of the case: French)                       out, nor to the qualifications needed for those tasks in terms
                                                                     of knowledge and experience. Is follows that, in the present
An action against the Commission of the European                     case, the Commission's conduct is compatible neither with
Communities was brought before the Court of First                    the aim of the vacancy notice, which is to provide interested
Instance of the European Communities on 21 February                  parties with detailed information concerning the
1996 by Antonio Giannini, residing in Brussels, represented          qualifications required in order to apply for the post in
by Marc Dallemagne and Carlo Locchi, of the Brussels Bar,            question, nor with the principle that officials must be able to
with an address for service in Luxembourg at the Chambers            rely on a practice regularly followed by the administrative
of Jeannot Biver, 7 Côte d'Eich.                                     authority.
                                                                     Lastly, the applicant pleads the commission in the present
The applicant claims that the Court should :                         case of a manifest error of appreciation, based on disregard
                                                                     of Articles 4, 29 ( 1 ) and 45 of the Staff Regulations and of
— annul the Commission's decision rejecting the                      the vacancy notice itself. In concrete terms, it is apparent
     applicant's application for post COM/151/94 , which             from an examination of the merits of the ultimately
     was notified to the applicant on 28 April 1995 ,                successful candidate that his application did not meet the
                                                                     minimum qualifications required by the vacancy notice . The
— annul the defendant's decision appointing another                  person in question has no experience in the negotiation or
     candidate to the grade A3 post of Head of Unit DG I.D.l         management of international agreements relating to textiles.
     'Negotiation and management of textile agreements;              Nor does he possess the knowledge needed in order to
     clothing and other industries' pursuant to vacancy              accomplish the tasks entrusted to that unit. It follows that
     notice COM/151 /94, which was brought to the                    the appointing authority exceeded the parameters of the
     applicant's knowledge on 3 May 1995 ,                           said vacancy notice .
— annul the decision rejecting the complaint submitted by
     the applicant on 25 July 1995 , which was brought to his
     knowledge on 3 May 1995 ,
— order the defendant to pay the applicant ECU 5 000 by              Action brought on 27 February 1996 by Eisa De Persio
     way of compensation for the non-material damage                     against Commission of the European Communities
     suffered by him, subject to increase or decrease during                                  ( Case T-23/96 )
     the course of the proceedings,
                                                                                ( 96/C 133/58 )
— order the defendant to pay the applicant ECU 15 000 by
     way of compensation for the economic damage suffered                           (Language of the case: Italian)
     by him, subject to increase or decrease during the course
     of the proceedings,                                             An action against the Commission of the European
                                                                     Communities was brought before the Court of First
— order the defendant to pay all of the costs .                      Instance on 27 February 1996 by Eisa De Persio, an official
                                                                     of the Commission of the European Communities,
Pleas in law and main arguments                                      represented by Giovanni Petroni and Franco Giampietro, of
                                                                     the Rome Bar, with an address for service in Luxembourg at
                                                                     the chambers of Gilles Bounéou, 15 Avenue du Bois .
The applicant, a grade A4 Commission official, contests the
rejection of his application for the grade A3 post of Head of
Unit DG I.D.l 'Negotiation and management of textile                 The applicant claims that the Court should:
agreements; clothing and other industries', particularly in
the light of the vacancy notice on the basis of which the post       — declare unlawful the ousting of the applicant from her
in question was filled .                                                 duties and the pressure and intimidation intended to


title: Case C-520/09 P: Judgment of the Court (Second Chamber) of 29 September 2011 — Arkema SA v European Commission (Appeal — Agreements, decisions and concerted practices — Article 81 EC and Article 53 of the EEA Agreement — European market for monochloroacetic acid — Rules on imputing a subsidiary’s anti-competitive practices to its parent company — Presumption of the actual exercise of a decisive influence — Obligation to state reasons)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/2

         Judgment of the Court (Second Chamber) of 29 September 2011 — Arkema SA v European Commission
   (Case C-520/09 P) (1)

   (Appeal - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - European market for monochloroacetic acid - Rules on imputing a subsidiary’s anti-competitive practices to its parent company - Presumption of the actual exercise of a decisive influence - Obligation to state reasons)
   2011/C 340/02
   Language of the case: French

      Parties

      Appellant: Arkema SA (represented by: M. Debroux, avocat)

      Other party to the proceedings: European Commission (represented by: A. Bouquet and F. Castillo de la Torre, Agents)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009 in Case T-168/05 Arkema v Commission, by which the Court dismissed Arkema’s application for annulment of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement concerning an agreement in the market for monochloroacetic acid and, in the alternative, for a reduction in the amount of the fine imposed on it — Failure to comply with the rules on imputing a subsidiary’s anti-competitive practices to its parent company — Infringements of the principle of equal treatment and the right to a fair hearing — Failure to have regard to the scope of the guidelines on the method of setting fines

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Arkema SA to pay the costs.

      (1)  OJ C 37, 13.2.2010.


title: Case T-195/07: Order of the Court of First Instance of 23 September 2008 — Lafarge Cement v Commission (Action for annulment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 — Decision by the Commission not to raise objections subject to certain conditions — Competence of Member States in the individual allocation of emission allowances — Lack of direct concern — Inadmissibility)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/36

         Order of the Court of First Instance of 23 September 2008 — Lafarge Cement v Commission
   (Case T-195/07) (1)

   (Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)
   (2008/C 301/61)
   Language of the case: Polish
   Parties

      Applicant: Lafarge Cement S.A. (Malogoszcz, Poland) (represented by: P.K. Rosiak and F. Puel, lawyers)

      Defendant: Commission of The European Communities (represented by: U. Wölker and K. Herrmann, Agents)
   Re:
   APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Lafarge Cement S.A. shall bear its own costs and pay those incurred by the Commission.

      (1)  OJ C 170, 21.7.2007.


title: Case T-126/04: Action brought on 24 March 2004 by Willem Goris against the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/50

         Action brought on 24 March 2004 by Willem Goris against the Commission of the European Communities
   (Case T-126/04)
   (2004/C 118/107)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 24 March 2004 by Willem Goris, resident in Strassen (Luxembourg), represented by Nicolas Lhoëst, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court of First Instance should:

               —

               annul the decision of the appointing authority of 5 May 2003 inasmuch as it:

                           —

                           did not classify the applicant in Grade B4, step 3, at the time of his recruitment;

                           —

                           did not reconstitute the applicant's career in terms of his grade by bringing forward the date of his promotion to Grade B3 and granting him, if it so be, promotion to Grade B2;

                           —

                           limited the date of effect of the reclassification decision in regard to its pecuniary effects to 5 October 1995;

               —

               in so far as necessary annul the implied decision of the appointing authority of 14 December 2003, rejecting his complaint R/487/03;

               —

               order the defendant to pay compensation provisionally set in the amount of EUR 125 000 per annum in the event that, owing to impossibility, it is unable to reconstitute the applicant's career in terms of his grade;

               —

               order the defendant to pay all the costs.

         Pleas and main arguments
   The applicant in these proceedings who, on his recruitment in September 1994, was classified in Grade B5, step 3, challenges the decision of the appointing authority classifying him, on revision, in Grade B4, step 2, and not in Grade B4, step 3, refusing to reconstitute his career and limiting the date of effect of the decision on his reclassification to 5 October 1995.
   The pleas raised are identical to those in Case T-125/04 Rousseaux v Commisison


title: Case C-32/05: Judgment of the Court (Third Chamber) of 30 November 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Environment — Directive 2000/60/EC — Failure to notify implementing measures — Obligation to adopt framework legislation in national law — None — Incomplete implementation of or failure to implement Articles 2, 7(2) and 14)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/7

         Judgment of the Court (Third Chamber) of 30 November 2006 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-32/05) (1)

   (Failure of a Member State to fulfil obligations - Environment - Directive 2000/60/EC - Failure to notify implementing measures - Obligation to adopt framework legislation in national law - None - Incomplete implementation of or failure to implement Articles 2, 7(2) and 14)
   (2006/C 331/11)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and J. Hottiaux, Agents)

      Defendant: Grand Duchy of Luxembourg (represented by: S. Schreiner, Agent, and by P. Kinsch, avocat)
   Re:
   Failure of a Member State to fulfil its obligations — Failure to adopt the measures necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to communicate to the Commission of the European Communities the laws, regulations and administrative provisions implementing Directive 2000/60/EC of the European Parliament and the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, except for those relating to Article 3 of that directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 24 of that directive;

               2.

               Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Articles 2, 7(2) and 14 of Directive 2000/60/EC, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 24 of that directive;

               3.

               Dismisses the remainder of the application;

               4.

               Orders the Commission of the European Communities and the Grand Duchy of Luxembourg to bear their own costs.

      (1)  OJ C 82, 2.4.2005.


title: Case C-200/08: Action brought on 15 May 2008 — Commission of the European Communities v French Republic

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/28

         Action brought on 15 May 2008 — Commission of the European Communities v French Republic
   (Case C-200/08)
   (2008/C 171/43)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: A. Bordes and H. Støvlbæk, agents)

      Defendant: French Republic
   Form of order sought

               —

               Declare that by refusing to permit German and British snowboard instructors to teach that sport alone in France and by not referring in the amended decree of 4 May 1995 to snowboard instructor qualifications acquired in other Member States, the French Republic has failed to fulfil its obligations under Articles 39, 43 and 49 EC and under Article 6 of Directive 92/51/EEC (1);

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   While in several Member States ski-ing and snowboarding can be taught by members of professions who have separate instructor qualifications, snowboarding can be taught in France only by ski instructors.
   The applicant considers that the refusal to permit access to the profession of snowboard instructor alone cannot be justified having regard to the fundamental principles of free movement of persons, freedom to provide services and the right of establishment. The Commission considers, in addition, that the four cumulative derogating conditions established by the Court's case-law to justify any restriction on those principles — that measures must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must respect the principle of proportionality — are not satisfied.

      (1)  Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ L 209, p. 25).


title: Case C-426/99: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf by order of that court of 30 September 1999 in the case of Connaught Laboratories Inc. v (1) SmithKline Beecham Pharma GmbH and (2) SmithKline Beecham Biologicals Manufacturing S.A.

text:
5.2.2000               EN                    Official Journal of the European Communities                                        C 34/11
2. If Question 1 is to be answered in the affirmative:                  3. Is the priority of an infringement action brought by the
                                                                            claimant in his own name but on behalf of the patent
     Does Regulation (EEC) No 1408/71 also apply if a refugee               owner preserved if the patent at issue is transferred to the
     in employment and members of his family travelled from                 claimant in the course of the proceedings and he is
     a third country to a Member State direct, without moving               thenceforth no longer asserting the rights of another but
     within the Community?                                                  his own rights as owner of the patent?
3. Does Community law preclude a national rule which                    4. Does the priority of an action for a negative declaration
     makes entitlement to family benefits conditional on the                brought against the owner of the patent, intended to clarify
     actual grant of a right of residence, even if the refugee has          whether a certain product infringes his patent, continue to
     been granted the right to asylum?                                      apply if the patent at issue is transferred during the
                                                                            proceedings and the action for a negative declaration is
                                                                            thereupon directed against the new owner of the patent?
(1) OJ L 149 of 5.7.1971, p. 2.
Reference for a preliminary ruling from the Oberlandes-                 Action brought on 5 November 1999 by the Commission
gericht Düsseldorf by order of that court of 30 September               of the European Communities against the Portuguese
1999 in the case of Connaught Laboratories Inc. v                                                   Republic
(1) SmithKline Beecham Pharma GmbH and (2) SmithK-
         line Beecham Biologicals Manufacturing S.A.
                                                                                (Case C-429/99)
                         (Case C-426/99)
                                                                                (2000/C 34/21)
                          (2000/C 34/20)
                                                                        An action against the Portuguese Republic was brought before
                                                                        the Court of Justice on 5 November 1999 by the Commission
Reference has been made to the Court of Justice of the
                                                                        of the European Communities, represented by Ana Maria Alves
European Communities by an order of the Oberlandesgericht
                                                                        Vieira and Barry Doherty, of its Legal Service, acting as Agents,
(Higher Regional Court) Düsseldorf of 30 September 1999,
                                                                        with an address for service in Luxembourg at the office of
which was received at the Court Registry on 3 November
                                                                        Carlos Gómez de la Cruz, also of its Legal Service, Wagner
1999, for a preliminary ruling in the case of Connaught
                                                                        Centre, Kirchberg.
Laboratories Inc. v (1) SmithKIine Beecham Pharma GmbH
and (2) SmithKline Beecham Biologicals Manufacturing S.A.
on the following questions on the interpretation of the
                                                                        The applicant claims that the Court of Justice should:
first paragraph of Article 21 of the Brussels Convention on
jurisdiction and the enforcement of judgments in civil and
commercial matters (OJ 1978 L 304, p. 36), as amended by                — Declare that the Portuguese Republic has failed to fulfil its
the Accession Conventions of 9 October 1978 (OJ 1978                        obligations under the second indent of Article 2(4) of
L 304, p. 1), 25 October 1982 (OJ 1982 L 388, p. 1) and                     Directive 90/388/EEC (1) as amended by Directive
26 May 1989 (OJ 1989 L 285, p. 1):                                          96/19/EC (2);
1. Does a cause of action pursued in an alternative claim               — Order the Portuguese Republic to pay the costs.
     already become pending (‘anhängig’) with the event which
     under national procedural law in principle makes it a lis
     pendens (in this case, service of the summons), or does it
     become a lis pendens for the purposes of Article 21 of the         Contentions and principal arguments adduced in support
     Brussels Convention only at the time when (additionally)
     the procedural condition subject to which the alternative
     claim is put forward is fulfilled?                                 The Commission considers that ‘call-back’ services are not
                                                                        voice telephony services within the meaning of Commission
2. Who is to be regarded as the ‘party’ where the claimant,             Directive 90/388/EEC of 28 June 1990 on competition in the
     on the basis of an authority to bring proceedings given by         markets for telecommunications services and that therefore
     the substantive owner of the right, asserts the latter’s rights    Article 3 of Commission Decision 97/310/EC does not grant
     (the rights of another) in his own name (‘Prozessstand-            any additional implementation period regarding the supply of
     schaft’) — the nominal claimant bringing the action or the         such services, which should already have been liberalised in
     substantive owner of the rights?                                   Portugal upon the entry into force of that directive. Portugal


title: Case C-15/00: Action brought on 19 January 2000 by Commission of the European Communities against European Investment Bank

text:
29.4.2000              EN                    Official Journal of the European Communities                                     C 122/9
Regulation (EC) No 1073/1999 is applicable to the ECB. The              19 January 2000 by Commission of the European Communi-
European Central Bank (ECB) was established by the EC Treaty            ties, represented by Christiaan Timmermans, Assistant Director
and, subject always to its special statute, constitutes a body of       General of the Legal Service, Hans Peter Hartvig and Ulrich
the Community. The independence claimed by the ECB is                   Wölker, Legal Advisers, acting as Agents, with an address for
merely functional and restricted to the accomplishment of its           service in Luxembourg at the office of Carlos Gómez de la
particular tasks under the Treaty and the Statute of the                Cruz, of its Legal Service, Wagner Centre, Kirchberg.
European System of Central Banks (ESCB). The protection of
the Community’s financial interests may have a wider scope
than the protection of the Community budget, since it extends           The applicant claims that the Court should:
to ‘budgets managed’ by the Communities, such as the
European Development Fund (EDF), and to the budgets of the
decentralised Community organisations which are separate                — annul the decision of the Management Committee of
from the general budget of the Communities and of which                      the European Investment Bank on cooperation with the
some are moreover increased by own revenue. Accordingly,                     European Anti-Fraud Office (OLAF) (1);
the fact that the ECB has its own budget and its own financial
resources does not preclude the application to the ECB of the
measures adopted under Article 280(4) of the EC Treaty, such            — order the European Investment Bank to pay the costs.
as Regulation (EC) No 1073/1999. Even if the distinction
between, on the one hand, the budget of the European
Communities and, on the other, the budget of the ECB and its
own resources were relevant, the ECB would still not fall
outside the scope of the aforementioned regulation, since it            Pleas in law and main arguments
also manages budgetary resources of the Communities. In
point of fact, it levies the Community tax on the salaries and
wages of its directors and staff, and it manages borrowing and          This action has been brought under Article 237(b) EC and, in
lending transactions undertaken by the Communities pursuant             the alternative, under Article 230 EC, and claims in substance
to medium term financial support.                                       that Regulation (EC) No 1073/1999 of the European Parlia-
                                                                        ment and of the Council and Council Regulation (Euratom)
                                                                        No 1074/1999 concerning investigations conducted by the
The contested decision infringes Article 4 of Regulation (EC)
                                                                        European Anti-Fraud Office (OLAF) have been infringed.
No 1073/1999 inasmuch as:
— Article 2 thereof renders entirely nugatory the OLAF’s
     ability to conduct internal inquiries within the ECB               Regulations (EC) No 1073/1999 and (Euratom) No 1074/
                                                                        1999 are applicable to the European Investment Bank (EIB).
                                                                        The EIB was established by the EC Treaty and, subject always
— while it makes no provision for the implementation of the             to its special statute, constitutes a body of the Community.
     obligations under Article 4(6) of the regulation, it imposes       The independence claimed by the EIB is merely functional and
     in particular a duty on the officials of the bank to report        restricted to the accomplishment of its particular tasks under
     any fraud to the Directorate for Internal Audit and to the         the Treaty and its Statute. To date, the EIB has not been able
     antifraud committee set up by the decision but not a duty          to show in what way legislation adopted by the Council in the
     to do so to the OLAF.                                              field of anti-fraud measures would be likely to prevent or
                                                                        obstruct in concreto the EIB in carrying out its task. The
                                                                        protection of the Community’s financial interests may have a
(1) ECB/1999/5, OJ L 291 of 13.11.1999, p. 36.                          wider scope than the protection of the Community budget,
                                                                        since it extends to ‘budgets managed’ by the Communities,
                                                                        such as the European Development Fund (EDF), and to the
                                                                        budgets of the decentralised Community organisations which
                                                                        are separate from the general budget of the Communities,
                                                                        some of which are moreover increased by own revenue.
                                                                        Accordingly, the fact that the EIB has its own budget and its
                                                                        own financial resources does not preclude the application to
                                                                        the EIB of the measures adopted under Article 280(4) of the
Action brought on 19 January 2000 by Commission of                      EC Treaty, such as Regulation (EC) No 1073/1999. Even if the
the European Communities against European Investment                    scope of Article 280(4) were limited to just the financial
                              Bank                                      interests linked to the Community budget, it cannot be denied
                                                                        that Regulation No 1073/1999 must also apply to the EIB
                                                                        inasmuch as it also manages Community budgetary resources.
                          (Case C-15/00)                                In point of fact, it levies the Community tax on the salaries
                                                                        and wages of members of its bodies and of its staff and it
                         (2000/C 122/14)                                also manages Community budgetary resources under specific
                                                                        mandates; another example is the EIB’s management, on behalf
                                                                        of the Community, of risk capital and of interest subsidy
An action against European Investment Bank was brought                  or rebate financed from the resources of the European
before the Court of Justice of the European Communities on              Development Fund (EDF).
 ---pagebreak--- C 122/10                EN                   Official Journal of the European Communities                                          29.4.2000
The contested decision infringes Article 4 of Regulations               (c) For the purposes of applying Article 1(1)(2)(c) in conjunc-
1073/1999 and 1074/1999 inasmuch as:                                         tion with the second subparagraph of Article 2(1) of
                                                                             Council Regulation (EEC) No 1697/79 of 24 July 1979,
— it renders entirely nugatory the OLAF’s ability to conduct                 may a first act determining the amount of levies payable
     internal inquiries within the EIB and, furthermore, the                 be regarded as the end of the limitation period for
     application of Regulations 1073/1999 and 1074/1999 to                   post-clearance recovery proceedings or, on the contrary, is
     the EIB. Moreover, access by OLAF to the information held               the end of that period marked by the issue of a second act
     by the EIB must be authorised case by case by the President             revoking and replacing the first, giving a new amount for
     of the EIB who also decides the type of access to be                    the levies due?
     granted;
                                                                        (d) What meaning must be attributed to Article 254 of the
— by providing for no more than ‘assistance’ to OLAF in                      Treaty of Accession (2) where it imposes on the Portuguese
     anti-fraud efforts with regard to transactions carried out in           Republic the obligation to eliminate surplus stocks of
     relation to the EIB’s own resources it is creating a                    products and, in particular, to do so ‘at the expense of the
     distinction between the various sources of financing which              Portuguese Republic’?
     is incompatible with the protection of the ‘financial
     interests’ of the European Community;
                                                                        (e) Is the requirement imposed by the Portuguese Customs
                                                                             Authorities on holders of surplus sugar that they pay
— it does not constitute at all a sufficient measure                         the levies provided for in Regulation (EEC) No 579/86
     implementing the obligations under Article 4(6) of the                  (Article7(1)) in circumstances where the Portuguese Repub-
     abovementioned regulations.                                             lic had failed to take the measures necessary for the export
                                                                             thereof outside the Community compatible with the
                                                                             obligation laid down by Article 254 of the Treaty of
(1) Not published, communicated to the Commission by letter of
    16.11.1999.                                                              Accession, of which further details are given in the
                                                                             implementing regulations — Council Regulation (EEC)
                                                                             No 3771/85 of 20 December 1985 (3) (Article 8) and
                                                                             Commission Regulation (EEC) No 579/86 of 28 February
                                                                             1986 (4) (Articles 4 and 8)?
                                                                        (f) For the purposes of Article 5(2) of Council Regulation
                                                                             (EEC) No 1697/79 of 24 June 1979, must an incorrect
                                                                             estimate of sugar requirements for public supply of the
Reference for a preliminary ruling by the Supremo                            Autonomous Region of Madeira, which was based on an
Tribunal Administrativo, Second Chamber, by judgment                         import licence in which exemption from customs duties
of that court of 12 January 2000, in the case of William                     was granted in full awareness of Article 254 of the Treaty
           Hinton & Sons, Lda and Fazenda Pública                           of Accession and Council Regulation (EEC) No 3771/85,
                                                                             be regarded as a significant error?
                          (Case C-30/00)
                                                                        (g) For the purposes of Article 5(2) of Regulation (EEC)
                         (2000/C 122/15)                                     No 1697/79, must the successive errors of fact and of
                                                                             law committed by the competent Customs Authority in
                                                                             determining the amount payable be regarded as significant?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Second Chamber
of the Supremo Tribunal Administrativo (Supreme Adminis-                (h) If the previous two questions are answered in the affirm-
trative Court) of 12 January 2000, which was received at the                 ative, could the debtor reasonably detect such errors on
Court Registry on 4 February 2000, for a preliminary ruling in               the part of the competent customs authorities?
the case of William Hinton & Sons, Lda and Fazenda Pública,
on the following questions:
                                                                        (1) Council Regulation (EEC) No 1697/79 of 24 July 1979 on the
(a) Should it be inferred from Article 1(2)(c) of Council                   post-clearance recovery of import duties or export duties which
     Regulation (EEC) No 1697/79 of 24 July 1979(1) that,                   have not been required of the person liable for payment on goods
     when the legal act known as entry in the accounts has                  entered for a customs procedure involving the obligation to pay
     been carried out, that act must necessarily precede the                such duties — OJ 1979 L 197, p. 1.
     notification regarding recovery and actual recovery?               (2) OJ 1985 L 302.
                                                                        (3) Council Regulation (EEC) No 3771/85 of 20 December 1985 on
                                                                            stocks of agricultural products in Portugal (OJ 1985 L 362, p. 21).
(b) Should there be deemed to be a lack of any entry in the             (4) Commission Regulation (EEC) No 579/86 of 28 February 1986
     accounts, for the purposes of the second subparagraph of               laying down detailed rules relating to stocks of products in the
     Article 2(1) of Council Regulation (EEC) No 1697/79 of                 sugar sector in Spain and Portugal on 1 March 1986 (OJ 1986
     24 July 1979, when the purpose of the first measure by                 L 57 of 1.3.1986).
     which the Customs Authority enters the amount of levies
     in accounting records or the equivalent thereof is to record
     the recovery of those levies?


               30.4.2015

               EN

               Official Journal of the European Union

               C 143/9

         Action brought on 28 January 2015 by the Icelandic Financial Services Association against the EFTA Surveillance Authority
   (Case E-4/15)
   (2015/C 143/10)
   An action against the EFTA Surveillance Authority was brought before the EFTA Court on 28 January 2015 by the Icelandic Financial Services Association, represented by Hans-Jörg Niemeyer, Attorney-at-law, and Christian Kovács, Attorney-at-law, Hengeler Mueller, Square de Meeûs 40, 1000 Brussels, Belgium.
   The applicant claims that the EFTA Court should:

               1.

               annul the EFTA Surveillance Authority’s Decision 298/14/COL of 16 July 2014 (OJ C 400, 13.11.2014, p. 13) to close the case concerning existing aid to the Icelandic Housing Financing Fund (Íbúðalánasjóður); and

               2.

               order the EFTA Surveillance Authority to bear the costs of the proceedings.

      Legal and factual background and pleas in law adduced in support:

               —

               The applicant, the Icelandic Financial Services Association (‘SFF’), is an association which represents all registered financial undertakings in Iceland, including universal, investment, and savings banks as well as insurance, leasing, securities and card companies. Its objective is to promote a competitive operating environment for financial companies in Iceland and promote their interests internationally.

               —

               The case concerns an application for annulment of a decision by the EFTA Surveillance Authority to close a case concerning existing aid to the Icelandic Housing Financing Fund (‘HFF’).

         The applicant claims that the EFTA Surveillance Authority has:

               —

               wrongly assumed that the support granted to HFF constitutes existing aid when in reality it amounts to new aid,

               —

               not provided adequate reasons for the conclusions it drew in the Decision and thereby violated Article 16 SCA,

               —

               manifestly erred in its interpretation of Article 59(2) EEA.


title: Case C-57/08 P: Appeal brought on 13 February 2008 by Gateway, Inc. against the judgment of the Court of First Instance (Fifth Chamber) delivered on 27 November 2007 in Case T-434/05: Gateway, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/12

         Appeal brought on 13 February 2008 by Gateway, Inc. against the judgment of the Court of First Instance (Fifth Chamber) delivered on 27 November 2007 in Case T-434/05: Gateway, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-57/08 P)
   (2008/C 171/20)
   Language of the case: English
   Parties

      Appellant: Gateway, Inc. (represented by: C. R. Jones, Solicitor)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fujitsu Siemens Computers GmbH
   Form of order sought
   The appellant claims that the Court should:

               —

               set aside the decision of the Court of First Instance (Fifth Chamber) of 27 November 2007 in Case T-434/05;

               —

               allow in its entirety the appellant's opposition to the registration of the trade mark applied for;

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments
   The appellant submits that the Court of First Instance made the following errors:

               a)

               The terms ‘media gateway’ and ‘gateway’ have a very specific meaning in the IT market for particular forms of device which convert one protocol or format to another. However, the Court of First Instance wrongly held that when ‘gateway’ was incorporated as an element of the mark applied for it served to designate descriptive characteristics of all the goods or services covered by the contested specification, whereas in fact none of the goods or services covered by the contested mark are listed as ‘media gateways’ or ‘gateways’.

               b)

               It wrongly defined the relevant public as made up of consumers who only purchase computer goods and services, rather than consumers of all the goods and services covered by the contested specification.

               c)

               It wrongly held that the conflicting marks are not visually, phonetically or conceptually similar.

               d)

               It wrongly held that the question of similarity in respect of two conflicting word marks should be subject to the condition that the overall visual, phonetic or conceptual impression produced by the composite word sign be dominated by the part which is represented by the earlier mark.

               e)

               When conduction its assessment of the similarity between the conflicting marks it failed to give sufficient weight to the distinctiveness of ‘gateway’ as an earlier trade mark of the appellant's for computer goods and services within the relevant target public.

               f)

               It failed to give sufficient regard to the fact that trade marks with a highly distinctive character, either per se or because of the reputation they possess, enjoy greater protection than marks with a less distinctive character.

               g)

               It wrongly concluded that ‘gateway’ does not have an independent distinctive role within the mark applied for.

               h)

               It wrongly held that the likelihood of confusion should be subject to the condition that the overall impression produced by the composite sign be dominated by the part which is represented by the earlier mark.

               i)

               It failed to assess properly the likely visual, conceptual and phonetic impact the word ‘gateway’ would have on the average consumer of the goods and services in issue when incorporated as an element of the mark applied for.


title: Case F-12/11: Action brought on 13 February 2011 — Hecq v Commission

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/22

         Action brought on 13 February 2011 — Hecq v Commission
   (Case F-12/11)
   2011/C 113/46
   Language of the case: French

      Parties

      Applicant: André Hecq (Chaumont-Gistoux, Belgium) (represented by: L. Vogel, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Action for annulment of the implicit decision rejecting the applicant's request to resume his professional activities as well as for full payment of his remuneration as an official, calculated from 1 August 2003, and for damages, all of those amounts to bear default interest at 7 % per annum from 1 August 2003.

      Form of order sought

               —

               Annul the decision adopted by the appointing authority on 29 October 2010 by which it rejected a complaint brought by the applicant on 6 July 2010 against an implicit decision deemed to have been adopted on 15 April 2010 which rejected a request submitted by the applicant on 15 December 2009 with a view to resuming his professional activities as well as for full payment of his remuneration as an official, calculated from 1 August 2003, and for damages, all of those amounts to bear default interest at 7 % per annum from 1 August 2003;

               —

               annul, as far as is necessary, the implicit decision which the appointing authority is deemed to have adopted on 15 April 2010 in so far as it rejected the abovementioned request submitted by the applicant on 15 December 2009;

               —

               order the Commission to pay the applicant an amount by way of damages corresponding to the remuneration as an official of which he was unjustly deprived from 1 August 2003, primarily and secondarily, plus an amount of EUR 50 000, all of those amounts to bear default interest at 7 % per annum from 1 August 2003;

               —

               order the European Commission to pay the costs.


title: Case T-324/07: Order of the Court of First Instance of 17 December 2008 — Plant and Others v Commission

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/68

         Order of the Court of First Instance of 17 December 2008 — Plant and Others v Commission
   (Case T-324/07) (1)

   (2009/C 44/115)

      Language of the case: English

   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 247, 20.10.2007.