title: Case T-364/12: Judgment of the General Court of 13 May 2015 — Harper Hygienics v OHIM — Clinique Laboratories (CLEANIC Kindii) (Community trade mark — Opposition proceedings — Application for the Community figurative mark CLEANIC Kindii — Earlier Community word marks CLINIQUE — Relative grounds for refusal — Likelihood of confusion — Similarity of the goods and services — Article 8(1)(b) of Regulation (EC) No 207/2009 — Unfair advantage taken of the distinctive character or the repute of the earlier marks — Article 8(5) of Regulation No 207/2009)

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/28

         Judgment of the General Court of 13 May 2015 — Harper Hygienics v OHIM — Clinique Laboratories (CLEANIC Kindii)
   (Case T-364/12) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark CLEANIC Kindii - Earlier Community word marks CLINIQUE - Relative grounds for refusal - Likelihood of confusion - Similarity of the goods and services - Article 8(1)(b) of Regulation (EC) No 207/2009 - Unfair advantage taken of the distinctive character or the repute of the earlier marks - Article 8(5) of Regulation No 207/2009))
   (2015/C 213/48)
   Language of the case: Polish

      Parties

      Applicant: Harper Hygienics S.A. (Warsaw, Poland) (represented by: initially R. Rumpel, and subsequently D. Rzążewska and G. Pietras, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Clinique Laboratories, LLC (Wilmington, Delaware, United States) (represented by: initially V. von Bomhard and A. Renck, lawyers, and K. Hughes, Solicitor, and subsequently K. Hughes)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 17 May 2012 (Case R 1135/2011-1), relating to opposition proceedings between Clinique Laboratories, LLC and Harper Hygienics S.A.

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Harper Hygienics S.A. to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Clinique Laboratories, LLC.

      (1)  OJ C 355, 17.11.2012.


title: Case T-125/03: Action brought on 11 April 2003 by Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. against the Commission of the European Communities

text:
C 146/42               EN                         Official Journal of the European Union                                          21.6.2003
Action brought on 11 April 2003 by Akzo Nobel Chemi-                      In support of their application, the applicants submit that the
cals Ltd. and Akcros Chemicals Ltd. against the Com-                      Commission has committed an infringement of the Treaty, an
            mission of the European Communities                           infringement of general principles of Community Law and has
                                                                          violated Regulation 17/62 as interpreted by the European
                                                                          Courts.
                         (Case T-125/03)
                        (2003/C 146/75)                                   More specifically, the applicants claim that the Commission
                                                                          has violated the principle of legal professional privilege by
                                                                          violating the procedures relating to the application of the
                  (Language of the case: English)                         principle as set out by the European Courts. Furthermore, the
                                                                          applicant submits that the Commission violated the principle
                                                                          of legal professional privilege by its unjustified and immediate
                                                                          denial of its application during the on the spot investigation
An action against the Commission of the European Communi-                 and the seizure of some of the documents. Finally, the
ties was brought before the Court of First Instance of the                applicants submit that the Commission violated the applicants’
European Communities on 11 April 2003 by Akzo Nobel                       fundamental rights, such as the right to privacy.
Chemicals Ltd., Hersham, United Kingdom, and Akcros
Chemicals Ltd., Hersham, United Kingdom, represented by
Mr C. Swaak, lawyer.
The applicant claims that the Court should:
—     to review under Article 230 the legality of the Decision
      in as far as it has been interpreted by the Commission              Action brought on 15 April 2003 by Paola Casini against
      as legitimating and/or constituting the basis of the                       the Commission of the European Communities
      Commission’s action (which is not severable from the
      Decision), of seizing and/or reviewing and/or reading
      documents covered by legal professional privilege;                                           (Case T-132/03)
—     to annul under Article 231 the Decision in as far as it has                                  (2003/C 146/76)
      been interpreted by the Commission as legitimating and/
      or constituting the basis of the Commission’s action
      (which is not severable from the Decision), of seizing                                  (Language of the case: French)
      and/or reviewing and/or reading documents covered by
      legal professional privilege;
—     to require that the Commission, to comply with the
                                                                          An action against the Commission of the European Communi-
      judgement annulling the Decision, return documents
                                                                          ties was brought before the Court of First Instance of the
      covered by legal professional privilege and not to use
                                                                          European Communities on 15 April 2003 by Paola Casini,
      their contents in any way;
                                                                          residing in Brussels, represented by Georges Vandersanden,
                                                                          avocat.
—     to order the Commission to pay the applicant’s costs in
      the present proceedings.
                                                                          The applicant claims that the Court should:
                                                                          —     order the list of officials promoted to Grade A 6 which
Pleas in law and main arguments
                                                                                was published on 18 August 2002 to be annulled in so
                                                                                far as the applicant’s name is not included on that list;
Pursuant to Commission Decision C(2003)559/4 of 10 Febru-
ary 2003, the Commission conducted an on the spot investi-                —     order compensation to be paid to the applicant in respect
gation on the premises of the applicants in Eccles, Manchester,                 of the material and non-material damage which she has
United Kingdom. In the course of the investigation, the                         suffered, provisionally estimated at a total of EUR 20 000,
Commission reviewed, copied and seized several documents.                       in respect of which the material damage relates to
                                                                                the financial readjustment of the applicant’s salary to
                                                                                correspond to Grade A 6 from the date of publication of
Some of these documents became the object of a disagreement                     the list of those promoted (increased by default interest
between the applicants and the Commission. According to the                     fixed at 7 % per annum);
applicants, the seizure of those documents violated the general
principle of legal professional privilege.                                —     order the defendant to pay all of the costs.


title: Case T-440/08: Action brought on 1 October 2008 — 1-2-3.TV v OHIM — Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-Produktion (1-2-3.TV)

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/34

         Action brought on 1 October 2008 — 1-2-3.TV v OHIM — Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-Produktion (1-2-3.TV)
   (Case T-440/08)
   (2008/C 327/62)
   Language in which the application was lodged: German
   Parties

      Applicant: 1-2-3.TV GmbH (Unterföhring, Germany) (represented by: V. von Bomhard, A. Renck, T. Dolde und E. Nicolás Gómez, lawyers)

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

      Other parties to the proceedings before the Board of Appeal of OHIM: Zweites Deutsches Fernsehen (Mainz, Germany) and Televersal Film- und Fernseh-Produktion GmbH (Hamburg, Germany)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 (Case R 1076/2007-1); and

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: Word mark ‘1-2-3.TV’ for services in classes 35, 38 and 41 — Application No 3 763 133

      Proprietor of the mark or sign cited in the opposition proceedings: Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-Produktion GmbH

      Mark or sign cited in opposition: National figurative mark ‘1, 2 ODER 3 ZDF-ORF-SFDRS’ for goods and services in classes 3, 5, 9, 12, 14, 16, 18, 21, 24, 25, 26, 27, 28, 29, 30, 32, 35, 38, 41 and 42

      Decision of the Opposition Division: Opposition partly upheld

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, there being no likelihood of confusion between the marks in opposition on account of the differing overall impression of the marks.


title: Case T-10/11 P: Appeal brought on 3 January 2011 by Gerhard Birkhoff against the judgment of the Civil Service Tribunal delivered on 27 October 2010 in Case F-60/09, Birkhoff v Commission

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/34

         Appeal brought on 3 January 2011 by Gerhard Birkhoff against the judgment of the Civil Service Tribunal delivered on 27 October 2010 in Case F-60/09, Birkhoff v Commission
   (Case T-10/11 P)
   2011/C 55/60
   Language of the case: Italian

      Parties

      Appellant: Gerhard Birkhoff (Weitnau, Germany) (represented by C. Inzillo, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

               —

               Annul the contested decision

               —

               Order the Commission to pay the costs of both sets of proceedings

      Pleas in law and main arguments

   This case seeks to have set aside the judgment of the Civil Service Tribunal in Case F-60/09 Birkhoff v Commission by which the Tribunal dismissed the action against the decision of the defendant refusing to extend the payment of the dependent child allowance which the appellant has received for his disabled daughter since 1978.
   The appellant relies on seven pleas in law in support of his appeal:

               —

               The first plea alleges breach of the rules of the Staff Regulations of Officials of the European Communities and of the principles of legal certainty and equal treatment.

               —

               The second plea alleges an error of law in the finding that the applicant put forward a single plea in the application initiating proceedings (Article 2(5) of Annex VII to the Staff Regulations), thus limiting the claims which should, in fact, have included the misapplication of the legislation and related provisions in the area at issue.

               —

               The third plea alleges an error of law, failure to state reasons and breach of Community law in that the Court of First Instance decided the dispute on the basis of analogy and in the complete absence of any certain legal criterion and/or rule of reference.

               —

               The fourth plea alleges an error of law and omission and failure to state reasons in the assessment of the evidence adduced by the applicant in support of his arguments.

               —

               The fifth plea alleges failure to respect the general and inviolable principles of equality between individuals and manifest lack of foundation for the application and interpretation of the relevant legislation and/or directives for the case at issue.

               —

               The sixth plea alleges lack of competence, failure to state reasons and misuse of powers as regards the decision regarding deductible expenses wholly or partly attributable to the illness of the member of the applicant's family, made by the Tribunal on the basis of an opinion of the medical officer of the Joint Sickness Insurance Scheme rather than of the administration.

               —

               The seventh plea alleges failure to state reasons regarding various key points of the judgment under appeal raised by the applicant and not considered by the Tribunal.


title: Order of the Court of First Instance of 6 July 2004 in Case T-370/02 Alpenhain-Camembert-Werk and Others v Commission of the European Communities (Regulation (EC) No 1829/2002 — Registration of a designation of origin — ‘Feta’ — Application for annulment — Locus standi — Inadmissibility)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/26

      ORDER OF THE COURT OF FIRST INSTANCE

   of 6 July 2004
   in Case T-370/02 Alpenhain-Camembert-Werk and Others v Commission of the European Communities (1)

   (Regulation (EC) No 1829/2002 - Registration of a designation of origin - ‘Feta’ - Application for annulment - Locus standi - Inadmissibility)
   (2004/C 262/51)
   Language of the case: German
   In Case T-370/02: Alpenhain-Camembert-Werk, established in Lehen/Pfaffing (Germany), Bergpracht Milchwerk GmbH & Co. KG, established in Tettnang (Germany), Käserei Champignon Hofmeister GmbH & Co. KG, established in Lauben (Germany), Bayerland eG, established in Nuremberg (Germany), Hochland AG, established in Heimenkirch (Germany), Milchwerk Crailsheim-Dinkelsbühl eG, established in Crailsheim (Germany), Rücker GmbH, established in Aurich (Germany), represented by J. Salzwedel and J. Werner, lawyers, having an address for service in Luxembourg, supported by the United Kingdom of Great Britain and Northern Ireland (Agent: P. Ormond) against Commission of the European Communities (Agents: J.L. Iglesias Buhigues, S. Grünheid and A.-M. Rouchaud-Joët), supported by the Hellenic Republic (Agents: V. Kontolaimos, I. Chalkias and M. Tassopoulou) and by the Association of Greek Dairy Products Industries (Sevgap), represented by N. Korogiannakis, lawyer — application for annulment of Commission Regulation (EC) No 1829/2002 of 14 October 2002 amending the Annex to Regulation (EC) No 1107/96 with regard to the name ‘Feta’ (OJ 2002 L 277, p. 10), in so far as it is a protected designation of origin — the Court (Third Chamber), composed of: J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, made an order on 6 July 2004, the operative part of which is as follows:

               1.

               The action is dismissed as inadmissible.

               2.

               The applicants shall bear their own costs and shall pay those of the Commission.

               3.

               The Hellenic Republic, the United Kingdom of Great Britain and Northern Ireland and the Association of Greek Dairy Products Industries (Sevgap) shall bear their own costs.

      (1)  OJ C 55 of 8.3.2003.


title: Case C-287/15: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 12 June 2015 — Società LIS Srl, Società Cerutti Lorenzo Srl v Abbanoa SpA

text:
               14.9.2015

               EN

               Official Journal of the European Union

               C 302/15

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 12 June 2015 — Società LIS Srl, Società Cerutti Lorenzo Srl v Abbanoa SpA
   (Case C-287/15)
   (2015/C 302/20)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Appellants: Società LIS Srl, Società Cerutti Lorenzo Srl

      Respondent: Abbanoa SpA

      Questions referred

               1.

               Is it compatible with Article 45(2)(a) and (b) of Directive 2004/18/EC of 31 March 2004 (1) for a debtor which has merely made a request to the competent judicial body to enter into an arrangement with creditors to be regarded as being the subject of proceedings?

               2.

               Is it compatible with the abovementioned provision for the fact that the debtor has declared that it is in a state of insolvency and wishes to submit a preliminary request (the features of which are described above) to enter into an arrangement with creditors to be regarded as grounds for excluding a debtor from a public tendering procedure, thereby interpreting broadly the concept of being ‘the subject of proceedings’ established by the provisions of Community law (Article 45 of the directive) and of national law (Article 38 of Legislative Decree No 163/2006) law, cited above?

               3.

               Is a provision such as that of Article 53(3) of Legislative Decree No 163 of 16 April 2006, analysed above, that allows the participation of an undertaking with a ‘named’ design engineer which, since it is not a itself a tenderer, may not, according to national case-law, rely on the capacity of others, compatible with Article 48 of Directive 2004/18/EC of 31 March 2004?

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).


title: Case F-90/11: Action brought on 26 September 2011 — ZZ v Commission

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/67

      Action brought on 26 September 2011 — ZZ v Commission
      (Case F-90/11)
      (2012/C 25/127)
      Language of the case: Italian

         Parties

         Applicant: ZZ (represented by: C. Pollicino, lawyer)

         Defendant: European Commission

         Subject-matter and description of the proceedings

      Application for annulment of the decision by which the Commission refuses to grant the applicant entitlement, on account of an accident, to a partial permanent invalidity rate

         Form of order sought

      The applicant claims that the Civil Service Tribunal should:

                  —

                  annul the Commission’s decision of 19 April 2011;

                  —

                  give a definitive ruling to the effect that the ‘Rules on insurance against the risk of accident and occupational disease for officials of the European Communities’ cover ‘the entire cutaneous system’ and not just ‘deep cutaneous burns and pathological cutaneous scarring’;

                  —

                  direct the Commission to set up a new medical committee, with the task of reviewing the applicant’s case in the light of the correct interpretation of the ‘Rules’, that is to say, as construed meanwhile by the Civil Service Tribunal of the European Union in the context of its consideration of the present application;

                  —

                  order the Commission to pay the costs.


title: Case T-35/00: Action brought on 23 February 2000 by Anthony Goldstein against the Commission of the European Communities

text:
C 135/16              EN                    Official Journal of the European Communities                                    13.5.2000
The applicants claim that the Court should:                            Action brought on 23 February 2000 by Anthony Gold-
                                                                       stein against the Commission of the European Communi-
— annul the decisions of 19 April 1999 (concerning Martı́nez                                          ties
    Páramo, Jean-Martial Marenne, Inès Van Lierde and Ron
    Moys) and 29 April 1999 (concerning Anna Sodro and
                                                                                (Case T-35/00)
    Michael Horgan) signed on behalf of the President of the
    jury by a head of unit;
                                                                                (2000/C 135/31)
— annul the decisions of 17 November 1999 and 12 January
    2000 (the latter concerning Michael Horgan) rejecting the
    applicants’ claims of 30 June 1999 (brought by Martı́nez
    Páramo, Michael Horgan and Ron Moys) and 29 June                                    (Language of the case: English)
    2000 (brought by Anna Sodro, Inès Van Lierde and
    Jean-Martial Marenne) under Article 90(2) of the Staff
    Regulations;                                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of First Instance of the
                                                                       European Communities on 23 February 2000 by Anthony
— order the defendant to grant access to the corrected copies          Goldstein, represented by Raymond St. John Murphy, Solicitor.
    of the written tests taken by the applicants in competitions
    COM/TA/2/98 and COM/TB/2/98;
                                                                       The applicant claims that the Court should:
— order the Commission to pay the whole of the costs.
                                                                       — declare that the Rules of Procedure of the Commission are
                                                                            in breach of Article 218 EC;
Pleas in law and main arguments
                                                                       — annul the decision of the Commission of 21 January 2000;
The applicants, who are category A or category B temporary
agents who participated in the tests for the competitions
COM/TA/2/98 and COM/TB/2/98, take issue with the content               — order the Commission to pay the costs.
of the letter addressed to them by a head of unit of the
Commission, on behalf of the President of the jury, confirming
the marks for the written tests awarded to them by the jury.
That letter stated that the marking system adopted by the jury         Pleas in law and main arguments
had been established objectively and had taken account of
each candidate’s comprehension of the subject-matter, the
structure of the test, and the candidate’s written expression,         The application in the present case is for annulment of the
logic and reasoning ability. It stressed that the tests had been       decision contained in a letter addressed by the Commission on
marked, unnamed, by two readers independently before the               21 January 2000 to Merriman White, Solicitors, concerning a
jury decided upon the final marks, which it awarded in a               request for information from the Commission pursuant to the
uniform fashion for all the candidates.                                order of a national court in the United Kingdom for such
                                                                       assistance, made under the Notice on Cooperation between
                                                                       National Courts and the Commission in applying Articles 81
In support of their claim the applicants allege a failure to           and 82 of the Treaty.
comply with the terms of the notice of competition, infringe-
ment of Article 255 of the Treaty of Rome, Articles 25 and 30
of the Staff Regulations and Annex III thereto laying down the         The purpose of the request for information is to enable the
competition procedure, and the breach of certain general legal         national court to determine whether the legal conditions are
principles, including the principle of sound administration, the       satisfied for the application of the prohibitions contained in
protection of the rights of the defence and the obligation to          Articles 10, 81 and 82 of the Treaty to the anticompetitive
state reasons.                                                         behaviour of the General Medical Council in relation to the
                                                                       conditions for the recognition of medical qualifications in the
                                                                       United Kingdom.
The applicants take the view that they are not in a position to
ascertain that the tests which they failed were in fact marked
properly because they were not informed of the marks awarded           In support of his action the applicant pleads:
to each of them or of the marking system. Furthermore, they
were not allowed to see their corrected papers, and thus it is
impossible for them to make any comparisons or to assess any           — infringement of Article 250 of the Treaty, inasmuch as the
errors they made.                                                           contested decision does not contain a sufficient statement
                                                                            of reasons;
                                                                       — breach of the principle of legitimate expectations;
 ---pagebreak--- 13.5.2000               EN                    Official Journal of the European Communities                                     C 135/17
— infringement of Article 218 of the Treaty by the Rules                 withdrew the contested act thereby rendering each application
    of Procedure of the Commission [C(1999)4000] (1), of                 devoid of purpose.
    18 September 1999 in so far as they do not contain
    effective deterrent sanctions to ensure that the Commission          The pleas in law and main arguments are similar to those
    and its departments operate, in accordance with the                  submitted in the above mentioned cases.
    provisions of the EC Treaty, to protect the proper adminis-
    tration of justice. In particular, the Commission is in breach       ( 1) OJ L 46 of 18.2.1994, p. 58.
    of the obligation to adopt and maintain in force all                 ( 2) OJ C 174 of 19.6.1999, p. 11.
    measures necessary to penalise any persons subject to its            ( 3) OJ C 281 of 2.10.1999, p. 28.
    jurisdiction.                                                        ( 4) OJ C 63 of 4.3.2000, p. 30.
(1) OJ 252 of 25.9.1999, p. 41.
                                                                         Action brought on 24 February 2000 by PlantaVet Ver-
                                                                         trieb Biologischer Tierarzneimittel GmbH against the
                                                                         European Agency for the Evaluation of Medicinal Prod-
Action brought on 23 February 2000 by Sonia Marion                                                        ucts
Elder and Robert Dale Elder against the Commission of
                  the European Communities                                                         (Case T-39/00)
                           (Case T-36/00)                                                         (2000/C 135/33)
                          (2000/C 135/32)                                                    (Language of the case: German)
                                                                         An action against the European Agency for the Evaluation of
                   (Language of the case: English)                       Medicinal Products was brought before the Court of First
                                                                         Instance of the European Communities on 24 February 2000
An action against the Commission of the European Communi-                by PlantaVet Vertrieb Biologischer Tierarzneimittel GmbH,
ties was brought before the Court of First Instance of the               whose registered office is in Bad Waldsee (Germany), represent-
European Communities on 23 February 2000 by Sonia Marion                 ed by Rüdiger Zuck, Rechtsanwalt, Stuttgart, with an address
Elder and Robert Dale Elder, represented by Scott Crosby,                for service in Luxembourg at the Chambers of Lucy Dupong,
Solicitor.                                                               4-6 Rue de la Boucherie.
The applicant claims that the Court should:                              The applicant claims that the Court should:
— annul the decision of the Commission of 20 January 2000                — annul the Agency’s decisions EMEA/V/BJF/jc./38309/99
    refusing access to the minutes of the VAT Committee                       and EMEA/V/BJF/jc.38311/99 of 20 December 1999 and
    relating to the consultations required by Article 4(4) of                 the decisions of the Committee for Veterinary Medicinal
    Sixth VAT Directive prior to the adoption by the United                   Products CVMP/543/99 and CVMP/544/99;
    Kingdom of Schedule 1 of the VAT Act 1994 and sections               — order the defendant to pay the costs.
    31(2), (4) and Schedule 18 Pt. IV(I) of the 1997 Finance
    Act;
                                                                         Pleas in law and main arguments
— order the Commission to pay the applicant’s costs pursuant
    to Article 87 of the Rules of Procedure of the Court of First        The applicant challenges decisions of the European Agency for
    Instance.                                                            the Evaluation of Medicinal Products and of the Committee
                                                                         for Veterinary Medicinal Products which held it impossible to
                                                                         evaluate the substances Arnica and Symphytum from the point
Pleas in law and main arguments                                          of view of residual toxicity. As a result, those substances
                                                                         cannot be entered in Annexes I to III to Council Regulation
The applicants in the present case challenge the refusal by the          (EEC) No 2377/90 of 26 June 1990 laying down a Community
defendant to allow access to certain documents for which they            procedure for the establishment of maximum residue limits of
have applied under Commission Decision 94/90/ECSC, EC,                   veterinary medicinal products in foodstuffs of animal origin.
Euratom, of 8 February 1994, on public access to Commission              The applicant markets veterinary medicinal products with
documents (1).                                                           those substances and considers itself affected by the contested
                                                                         decisions. It considers that it provided adequate information
The applicants state in this connection that this application is         for the assessment of residual toxicity and that on the strength
the fourth which they have had to bring against conduct of               of that information classification in Annex 1 or Annex 11
the part of the Commission which has, hitherto, prevented the            should have taken place.
request for access from being considered on the merits. In Cases
T-78/99 (2), T-178/99 (3) and T-356/99 (4) the Commission


title: Case C-20/06: Order of the President of the Court of  27 April 2006  — Commission of the European Communities v Grand Duchy of Luxembourg

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/30

         Order of the President of the Court of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-20/06) (1)

   (2006/C 178/54)

      Language of the case: French

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

      (1)  OJ C 60, 11.3.2006.


title: Case C-213/07: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) (Greece) lodged on 23 April 2007 — Mikhaniki A.E. v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Periodikou Typou

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/16

         Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) (Greece) lodged on 23 April 2007 — Mikhaniki A.E. v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Periodikou Typou
   (Case C-213/07)
   (2007/C 140/26)
   Language of the case: Greek
   Referring court
   Simvoulio tis Epikratias
   Parties to the main proceedings

      Applicant: Mikhaniki A.E.

      Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Periodikou Typou
   Questions referred

               1.

               Is the list of grounds for excluding public works contractors contained in Article 24 of Council Directive 93/37/ΕEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199) exhaustive?

               2.

               If that list is not exhaustive, does a provision which lays down (in order to protect transparency in the economic functioning of the State) that the status of owner, partner, main shareholder or management executive of a media undertaking is incompatible with the status of owner, partner, main shareholder or management executive of an undertaking contracting to perform a works, supply or services contract for the State, or for a legal person in the public sector in the broad sense, serve purposes which are compatible with the general principles of Community law and is that total prohibition on the award of public contracts to such undertakings compatible with the Community principle of proportionality?

               3.

               If, within the meaning of Article 24 of Directive 93/37/ΕEC, the list of grounds for excluding contractors contained therein is an exhaustive list or if the national provision at issue cannot be construed as serving purposes which are compatible with the general principles of Community law or if, finally, the prohibition introduced in it is not compatible with the Community principle of proportionality, does the above directive, in preventing the inclusion, as grounds for excluding contractors from public works procurement procedures, of cases where the contractor, its executives (such as the owner of the undertaking or its main shareholder, partner or management executive), or intermediaries acting for the said executives, work in media undertakings which are able to exercise an undue influence on the public works procurement procedure, because of the influence which they are able to exert in general, infringe the general principles of the protection of competition and transparency and Article 5(2) of the Treaty establishing the European Community which enacts the principle of subsidiarity?


title: Case C-504/06: Action brought on 13 December 2006 — Commission of the European Communities v Italian Republic

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/11

         Action brought on 13 December 2006 — Commission of the European Communities v Italian Republic
   (Case C-504/06)
   (2007/C 42/19)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: L. Pignataro-Nolin and I. Kaufmann-Bühler, Agents)

      Defendant: Italian Republic
   Forms of order sought

               —

               declare that, by having failed to transpose correctly in Italian law Article 3(1) of Council Directive 92/57/EEC (1) of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC (2)), the Italian Republic has failed to fulfil its obligations under that directive;

               —

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   Under Italian law, constructions sites which correspond to less than 200 man-days and which do not involve work coming within the scope of Annex II to the Directive are covered solely by the coordination provisions contained in Article 7 of Decree No 626/1994. That article, however, imposes only a general obligation of cooperation and coordination on employers which, within the company or producer unit, assign work to contracting undertakings or to self-employed persons. Accordingly, it is not possible to conclude that the precise and detailed provisions of Directive 92/57/EEC relating to the coordination required during the drafting and execution phases of a project can be regarded as being implemented by the article of the Decree in question.

      (1)  OJ 1992 L 245, p. 6.

      (2)  OJ 1989 L 183, p. 1.


title: Case C-327/13: Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 17 June 2013 — Burgo Group SpA v Illochroma SA, in liquidation, Jérôme Theetten, acting as liquidator of Illochroma SA

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 226/9

         Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 17 June 2013 — Burgo Group SpA v Illochroma SA, in liquidation, Jérôme Theetten, acting as liquidator of Illochroma SA
   (Case C-327/13)
   (2013/C 226/17)
   Language of the case: French

      Referring court

   Cour d’appel de Bruxelles

      Parties to the main proceedings

      Appellant: Burgo Group SpA

      Respondents: Illochroma SA, in liquidation, Jérôme Theetten, acting as liquidator of Illochroma SA

      Questions referred

   Must Council Regulation (EC) No 1346/2000 [of 29 May 2000] on insolvency proceedings (1) and, in particular, Articles 3, 16, 27, 28 and 29 thereof, be interpreted to the effect that:

               (a)

               ‘establishment’, as referred to in Article 3(2), must be understood as referring to a branch of the debtor against which main insolvency proceedings have been opened and precludes, in the context of the concurrent winding-up of a number of companies belonging to a single group, secondary proceedings from being brought against those companies in the Member State in which their registered office is situated, on the ground that they possess legal personality?

               (b)

               the person or authority empowered to request the opening of secondary proceedings must reside or have its registered office in the territory of the Member State of the court before which the action seeking the opening of secondary proceedings has been brought or must all European Union citizens have that right of action, provided that they can demonstrate a legal link to the establishment concerned?

               (c)

               in so far as main insolvency proceedings are winding-up proceedings, the opening of secondary insolvency proceedings against an establishment is possible only if they meet the criteria as to appropriateness, which lie within the discretion of the court … before which the action seeking the opening of secondary proceedings has been brought?

      (1)  OJ 2000 L 160, p. 1.


title: Case T-817/14: Action brought on 18 December 2014  — Zoofachhandel Züpke and Others v Commission

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/30

         Action brought on 18 December 2014 — Zoofachhandel Züpke and Others v Commission
   (Case T-817/14)
   (2015/C 089/36)
   Language of the case: German

      Parties

      Applicants: Zoofachhandel Züpke GmbH (Wesel, Germany), Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG (Bürstadt, Germany), Zoofachgeschäft — Vogelgroßhandel Import-Export Heinz Marche (Heinsberg, Germany), Rita Bürgel (Uthleben, Germany), Norbert Kass (Altenbeken, Germany) (represented by: C. Correll, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the General Court should:

               —

               order the defendant to repair the damage suffered since 1 January 2010 by the applicants as a result of the adoption of a prohibition on importation of wild birds captured in the EU, a prohibition which applies almost worldwide, included in Regulation (EC) No 318/2007 of 23 March 2007 (OJ 2007 L 84, p. 7) and/or in Implementing Regulation (EU) No 139/2013 of 7 January 2013 (OJ 2013 L 47, p. 1);

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants claim, first, that as a result of the continuation, without a critical approach, of the prohibition on importation in its extremely broad geographical scope, the Commission infringed the freedom to carry out an economic activity and, in part, the right to property enjoyed by the applicants. In the light of scientific knowledge acquired in any event since 2010, that prohibition is not capable of being justified by overriding considerations such as the protection of health.
   Secondly, the applicants claim that, by maintaining the prohibition on importation, the Commission infringed the principle of proportionality and the principles of effective work because it failed to take into consideration the current state of the data or the current state of scientific knowledge. The worldwide prohibition on the importation of wild birds continues to be based on knowledge and assumptions dating from 2005, at a time when avian influenza, originating in Asia, spread for the first time in Europe and where it was necessary to act quickly. According to the applicants, the data collected over the following years do not justify, in any event since 2010, such a geographically wide prohibition on importation. Furthermore, it was clearly necessary in the meantime to make provision for other more effective and much less restrictive methods for the applicants such as consistent surveillance of migrating birds.
   Third, the applicants maintain that they suffered an actual and certain damage and that there is a causal link between that damage and the Commission’s unlawful behaviour.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 12 December 1996 in Case T-74/95: Viriato Monteiro da Silva v. Commission of the European Communities (Officials - Former national expert on secondment - Daily subsistence allowance - Installation allowance - Place of recruitment)

text:
  No C 54/ 18            EN                  Official Journal of the European Communities                                      22 . 2 . 97
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                 JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 12 December 1996                                                    of 12 December 1996
                                                                         in Case T-74/95 : Viriato Monteiro da Silva v. Commission
 in    Case    T-33/95 :   Maria     Lidia  Lozano    Palacios  v.
                                                                                of the European Communities (')
         Commission of the European Communities (')
                                                                          (Officials — Former national expert on secondment —
  (Officials — Former national expert on secondment —                    Daily subsistence allowance — Installation allowance —
 Daily subsistence allowance — Installation allowance —                                        Place of recruitment)
  Reimbursement of removal expenses — Place of                                                       ( 97/C 54/27 )
                              recruitment)
                                                                                (Language of the case: French)
                             ( 97/C 54/26 )
                                                                         In Case T-74/95 : Viriato Monteiro da Silva, an official of
                                                                         the Commission of the European Communities, residing in
                  (Language of the case: French)                         Brussels, represented by Thierry Demaseure and Ariane
                                                                         Tornel , of the Brussels Bar, and, in the oral procedure, by
                                                                        Jean-Noel Louis, of the Brussels Bar, with an address for
                                                                         service in Luxembourg at the offices of Fiduciaire Myson
 In Case T-33/95 : Maria Lidia Lozano Palacios, an official              Sari , 1 rue Glesener, v. Commission of the European
 of the Commission of the European Communities, residing                 Communities ( Agents : Julian Currall and Denis
 in Brussels, represented by Jean-Noel Louis, of the                    Waelbroeck ) — application for annulment of the decision
 Brussels Bar, with an address for service in Luxembourg at              of the Commission of 6 April 1994 fixing Brussels as the
 the offices of Fiduciaire Myson Sari , 1 rue Glesener, v.              applicant's place of recruitment and refusing to grant him
 Commission of the European Communities ( Agents : Julian               the installation allowance and daily subsistence allowance
 Currall and Denis Waelbroeck ) — application, first, for               — the Court of First Instance ( Second Chamber),
 annulment of the decision of the Commission of 12 April                composed of: H. Kirschner, President, and C. W. Bellamy
 1994 fixing Brussels as the applicant's place of                       and A. Kalogeropoulos, Judges; B. Pastor, Principal
 recruitment and refusing to grant her the installation                 Administrator, for the Registrar, has given a judgment on
 allowance , to reimburse her removal expenses and to pay                12 December 1996 , in which it:
 the daily subsistence allowance and, second, for an order
 requiring the Commission to make those payments — the                   1 . Annuls the Commission s decision of 6 April 1994
 Court of First Instance ( Second Chamber ), composed of:                     inasmuch as it fixes Brussels as the applicant 's place of
H. Kirschner, President, and C. W. Bellamy and A.                             recruitment and refuses to grant him the installation
 Kalogeropoulos, Judges; B. Pastor, Principal Administrator,                  allowance provided for by Article 5 (1 ) of Annex VII
 for the Registrar, has given a judgment on 12 December                       to the Staff Regulations and the daily subsistence
 1996 , in which it:                                                          allowance provided for by Article 10 (1 ) of that
                                                                              Annex .
                                                                       2 . Orders the Commission to pay the costs.
 1 . Annuls the Commission 's decision of 12 April 1994,
                                                                        (') OJ No C 101 , 22 . 4 . 1995 .
      inasmuch as it refuses to grant the applicant the
      installation allowance provided for by Article 5 ( 1 ) of
      Annex VII to the Staff Regulations.
                                                                           JUDGMENT OF THE COURT OF FIRST INSTANCE
2 . Orders the Commission to pay the said allowance to                                       of 12 December 1996
      the applicant, together with default interest at the rate        in Case T-99/95 : Peter Esmond Stott v. Commission of the
      of 8% per annum from the date when it became                                         European Communities (')
      payable, in accordance with Annex VII to the Staff
      Regulations.                                                      (JET Joint Undertaking — Person claiming the status of a
                                                                                member of the temporary staff)
                                                                                ( 97/C 54/28 )
3 . Dismisses the remainder of the action.                                              (Language of the case: English)
                                                                       In Case T-99/95 : Peter Esmond Stott, represented by
                                                                       Kenneth Parker QC and Rhodri Thompson, Barrister, of
4.    Orders the Commission to bear its own costs and to               the Bar of England and Wales, having an address for
     pay one third of the applicant 's costs. The applicant is         service in Luxembourg at the Chambers of Messrs
      ordered to bear two thirds of her own costs.                     Elvinger and Hoss, 15 Cote d'Eich, against Commission
                                                                       of the European Communities ( Agents : Hans Gerald
                                                                       Grassland and Julian Currall ) — application for
(') OJ No C 101 , 22 . 4 . 1995 .
                                                                       annulment of the decision of 28 September 1994 by which
                                                                       the Commission rejected the applicant's complaint against
                                                                       a decision of the Director of JET of 13 June 1994 refusing


title: Case F-23/11: Order of the Civil Service Tribunal (First Chamber) of 8 February 2012 — AY v Council (Civil service — Officials — Promotion — 2010 promotion exercise — Consideration of comparative merits — Failure to take into account further training and certification — Error of law)

text:
               28.4.2012

               EN

               Official Journal of the European Union

               C 126/26

         Order of the Civil Service Tribunal (First Chamber) of 8 February 2012 — AY v Council
   (Case F-23/11) (1)

   (Civil service - Officials - Promotion - 2010 promotion exercise - Consideration of comparative merits - Failure to take into account further training and certification - Error of law)
   2012/C 126/49
   Language of the case: French

      Parties

      Applicant: AY (Bousval, Belgium) (represented initially by É. Boigelot and S. Woog, then by É. Boigelot, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer and J. Herrmann, agents)

      Re:

   Action for annulment of the decision of the Council not to include the applicant in the list of officials promoted to grade AST 9 in the 2010 promotion exercise and compensation for the non-material harm suffered.

      Operative part of the order

   The Tribunal:

               1.

               annuls the decision of the Council of the European Union not to promote AY to grade AST 9 in the 2010 promotion exercise;

               2.

               declares that there is no need to adjudicate on AY’s alternative heads of claim;

               3.

               dismisses AY’s action as to the remainder;

               4.

               orders the Council of the European Union to pay all costs.

      (1)  OJ 30.7.2011 C 226, p. 31.


title: Case F-55/08: Action brought on 5 June 2008 — De Nicola v EIB

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/73

         Action brought on 5 June 2008 — De Nicola v EIB
   (Case F-55/08)
   (2008/C 209/135)
   Language of the case: Italian
   Parties

      Applicant: Carlo De Nicola (Strassen, Luxembourg) (represented by: L. Isola, lawyer)

      Defendant: European Investment Bank
   Subject-matter and description of the proceedings
   An application, first, for annulment, in part, of the decision of the Appeals Committee concerning the assessment of the applicant for 2006 and, secondly, for a declaration that the applicant has been the victim of harassment and intimidation at the workplace (‘mobbing’) and an order that the defendant desist from such conduct and compensate the applicant for the damage suffered.
   Form of order sought

               —

               Annul the decision communicated by e-mail on 17 November 2007, a copy of which was sent on 19 December 2007, in so far as the Appeals Committee rejected the applicant's appeal against the assessment made by his superiors for 2006 in so far as it is based on the assumption that the applicant had abandoned his claims alleging irregularities in the assessment procedure for 2006 and, finally, in so far as it contends that the applicant accepted the criticisms made by his superiors;

               —

               render the promotions decided upon on 13 July 2007 void in so far as the applicant was not considered for promotion from Grade E to Grade D;

               —

               annul all related, consequent and prior measures, including the assessment of the applicant for 2006 in so far as it fails to propose that he be given the mark A or B+ and his promotion to Grade D and, if appropriate, declare that the restrictions (both quantitative and non-quantitative) imposed by the instructions given by the Directorate of Human Resources are unlawful and to be disapplied;

               —

               declare that the applicant was the victim of mobbing;

               —

               order the EIB to desist from the mobbing to which the applicant has been subjected and to compensate him for the personal, material and non-material injury suffered, both past and future;

               —

               order the defendant to pay the costs.


title: Case C-316/03: Reference for a preliminary ruling by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen by order of that Court of 3 July 2003 in the administrative proceedings between Orthica BV against Bundesrepublik Deutschland, represented by the Federal Ministry of Consumer Protection, Nutrition and Agriculture; Intervener: the representative of the public interest at the Oberverwaltungsgericht für das Land Nordrhein-Westfalen

text:
15.11.2003           EN                        Official Journal of the European Union                                          C 275/25
    IV. a)    In so far as the term ‘health risk’ is relevant to                  b)    because the product is not authorised as a
              the questions in sections II or III, or to other                          medicine?
              applicable Community law, such as Articles 28
              and 30 EC: Is the relevant threshold the ‘upper                VII. If the Court declines itself to reply to the questions
              safe level’ or should it be reduced, say, because                   posed in section A, may the national court then
              the substances in question are also ingested                        direct questions on the classification of products or
              with food and/or because — at least where                           indeed scientific or methodological questions to the
              they are taken long-term — regard may have                          European Food Authority and to what extent are
              to be had to the various consumer groups and                        any guidelines provided by that authority binding
              their different sensitivities? How are the words                    on the national court?
              ‘reference intakes for the population’ within the
              meaning of Article 5 of the Food Supplements
              Directive to be defined?
         b)   Is it an infringement of Community law for the
              specialist authorities to have a discretion under
              national law to determine (individual) upper
                                                                       Reference for a preliminary ruling by the Oberverwal-
              safe levels and any (individual) reductions that
                                                                       tungsgericht für das Land Nordrhein-Westfalen by order
              is subject to only limited review by the courts?
                                                                       of that Court of 3 July 2003 in the administrative
                                                                       proceedings between Orthica BV against Bundesrepublik
    V.   a)   If a product may be marketed in at least one             Deutschland, represented by the Federal Ministry of
              other Member State as a foodstuff, is the fact           Consumer Protection, Nutrition and Agriculture; Inter-
              that there is no ‘nutritional need’ for that             vener: the representative of the public interest at the
              product in Germany significant in terms of the           Oberverwaltungsgericht für das Land Nordrhein-
              freedom to market the product in Germany?                                           Westfalen
                                                                                (Case C-316/03)
         b)   If so, is it compatible with Community law
              for the authority to have a discretion under
              national law that is subject to only limited                                     (2003/C 275/42)
              review by the courts?
    VI. If in regard to the questions posed in section III the         Reference has been made to the Court of Justice of the
         Court confirms the judgment in van Bennekom and               European Communities by order of the Oberverwaltungsge-
         there is no incompatibility in this case with the             richt für das Land Nordrhein-Westfalen (Higher Administrative
         requirements of health protection, how can the                Court for the Land of Nordrhein-Westfalen) of 3 July 2003,
         request for marketing authorisation be successfully           received at the Court Registry on 24 July 2003, for a
         pursued? Can a decision of general application under          preliminary ruling in the administrative proceedings between
         Paragraph 47a of the LMBG be refused, without                 Orthica BV against Bundesrepublik Deutschland, represented
         Community law being infringed, on the basis that              by the Federal Ministry of Consumer Protection, Nutrition and
         in the German classification system a product is              Agriculture; Intervener: the representative of the public interest
         medicinal, whereas it can be marketed as a foodstuff          at the Oberverwaltungsgericht für das Land Nordrhein-
         in the Member State where it was manufactured? Is             Westfalen on the following questions:
         it compatible with Community law, and in particular
         Articles 28 and 30 EC, not to apply the rule in               A.    1.   Is the contested product
         Paragraph 47a of the LMBG to such medicinal
         products analogously? If not, can the German State,
                                                                                ‘OPC 85’
         without thereby infringing Community law, evade
         an obligation which a German court intends to
         impose on it to adopt a decision of general appli-                       a foodstuff (perhaps in the form of a food sup-
         cation under Paragraph 47a of the LMBG (applied                          plement) or a medicinal product? Is this finding
         analogously) if it, or the authority responsible for                     binding on all the Member States?
         food but not medicines, objects that because in
         the German classification system the product is                     2.   If the Court of Justice concludes that the product in
         medicinal no decision of general application under                       question is medicinal, but that in those Member
         Paragraph 47a of the LMBG (analogously) may be                           States where it has hitherto been regarded as a
         adopted,                                                                 foodstuff it should continue to be a foodstuff, that
                                                                                raises problems for the referring Chamber such as
                                                                                those underlying the questions in B VI, in conjunc-
         a)   because the body competent to adopt decisions                       tion with those in B III. Reference is made to those
              of general application under Paragraph 47a of                       questions and the observations thereon and an
              the LMBG is not competent for medicines also,                       answer is requested.
 ---pagebreak--- C 275/26              EN                          Official Journal of the European Union                                       15.11.2003
B.  In the event that — as has been the case hitherto — the                        in the Member State in which it was manufactured
    questions posed in section A above are to be answered                          by the granting of a marketing authorisation if, even
    not by the Court of Justice but by the national courts, the                    though it is regarded as a medicine in the Member
    replies are, in this Chamber’s view, needed to the                             State of import, a marketing authorisation is com-
    following questions:                                                           patible with the requirements of health protection,
                                                                                also apply to the product at issue here, and does the
    I.    a)   Is the contested product to be classified accord-                   Court of Justice adhere to its view in the light of
               ing to the first and second paragraphs of                           subsequent Community law?
               Article 2, in conjunction with point (d) of the
               third paragraph of Article 2 of Regulation (EC)
               No 178/2002 of the European Parliament and
               of the Council of 28 January 2002 laying down                   IV. a)    In so far as the term ‘health risk’ is relevant to
               the general principles and requirements of food                           the questions in sections II or III, or to other
               law, establishing the European Food Safety                                applicable Community law, such as Articles 28
               Authority and laying down procedures in mat-                              and 30 EC: Is the relevant threshold the ‘upper
               ters of food safety (OJ 2002 L 31, p. 1, ‘the                             safe level’ or should it be reduced, say, because
               Basic Regulation’), or — once the period for                              the substances in question are also ingested
               transposition expires on 31 July 2003 —                                   with food and/or because — at least where
               according to Directive 2002/46/EC of the                                  they are taken long-term — regard may have
               European Parliament and of the Council of                                 to be had to the various consumer groups and
               10 June 2002 on the approximation of the                                  their different sensitivities? How are the words
               laws of the Member States relating to food                                ‘reference intakes for the population’ within the
               supplements (OJ 2002 L 183, p. 51, ‘the Food                              meaning of Article 5 of the Food Supplements
               Supplements Directive’), and if so according to                           Directive to be defined?
               which parts of the directive?
          b)   If the first and second paragraphs of Article 2,
               in conjunction with point (d) of the third                          b)    Is it an infringement of Community law for the
               paragraph of Article 2 of the Basic Regulation                            specialist authorities to have a discretion under
               applies, the following question arises: is it the                         national law to determine (individual) upper
               case that it is no longer the product’s main                              safe levels and any (individual) reductions that
               (objective) purpose that is the decisive factor,                          is subject to only limited review by the courts?
               but rather that a product which meets the
               criteria for both a food and a medicine is,
               legally speaking, always — and only — a
               medicinal product? How material for these                       V.  a)    If a product may be marketed in at least one
               purposes is the type of product and how                                   other Member State as a foodstuff, is the fact
               material the individual product?                                          that there is no ‘nutritional need’ for that
                                                                                product in Germany significant in terms of the
    II.   a)   How is the term ‘pharmacological effect’, which                           freedom to market the product in Germany?
               is critical for the purposes of classification,
               inter alia, under the first and second paragraphs
               of Article 2, in conjunction with point (d) of
               the third paragraph of Article 2 of the Basic                       b)    If so, is it compatible with Community law
               Regulation, to be defined for the purposes                                for the authority to have a discretion under
               of Community law? In particular, does the                                 national law that is subject to only limited
               definition include a requirement that there be a                          review by the courts?
               health risk?
          b)   Now that Directive 2001/83/EC of the Euro-
               pean Parliament and of the Council of 6 Nov-                    VI. If in regard to the questions posed in section III the
               ember 2001 on the Community code relating                           Court confirms the judgment in van Bennekom and
               to medicinal products for human use has,                            there is no incompatibility in this case with the
               by the second sentence of Article 1(2) (on                          requirements of health protection, how can the
               ‘functional’ medicinal products), introduced the                    request for marketing authorisation be successfully
               term ‘physiological functions’, the further ques-                   pursued? Can a decision of general application under
               tion arises as to the meaning of that term and                      Paragraph 47a of the LMBG be refused, without
               its relation to the term ‘pharmacological effect’.                  Community law being infringed, on the basis that
                                                                                in the German classification system a product is
    III. Does the view expressed by the Court of Justice in                        medicinal, whereas it can be marketed as a foodstuff
          Case 227/82 van Bennekom [1983] ECR 3883,                                in the Member State where it was manufactured? Is
          paragraph 39 on the general classification of vitamin                    it compatible with Community law, and in particular
          preparations, in which it said that it must be possible                  Articles 28 and 30 EC, not to apply the rule in
          to import a product that may be marketed as a food                       Paragraph 47a of the LMBG to such medicinal
 ---pagebreak--- 15.11.2003            EN                         Official Journal of the European Union                                           C 275/27
           products analogously? If not, can the German State,                2.    If the Court of Justice concludes that the product in
           without thereby infringing Community law, evade                          question is medicinal, but that in those Member
           an obligation which a German court intends to                            States where it has hitherto been regarded as a
           impose on it to adopt a decision of general appli-                       foodstuff it should continue to be a foodstuff, that
           cation under Paragraph 47a of the LMBG (applied                          raises problems for the referring Chamber such as
           analogously) if it, or the authority responsible for                     those underlying the questions in B VI, in conjunc-
           food but not medicines, objects that because in                          tion with those in B III. Reference is made to those
           the German classification system the product is                          questions and the observations thereon and an
           medicinal no decision of general application under                       answer is requested.
           Paragraph 47a of the LMBG (analogously) may be
           adopted,                                                      B.   In the event that — as has been the case hitherto — the
                                                                              questions posed in section A above are to be answered
           a)    because the body competent to adopt decisions                not by the Court of Justice but by the national courts, the
                 of general application under Paragraph 47a of                replies are, in this Chamber’s view, needed to the
                 the LMBG is not competent for medicines also,                following questions:
           b)    because the product is not authorised as a                   I.    a)    Is the contested product to be classified accord-
                 medicine?                                                                ing to the first and second paragraphs of
                                                                                Article 2, in conjunction with point (d) of the
      VII. If the Court declines itself to reply to the questions                         third paragraph of Article 2 of Regulation (EC)
           posed in section A, may the national court then                                No 178/2002 of the European Parliament and
           direct questions on the classification of products or                          of the Council of 28 January 2002 laying down
           indeed scientific or methodological questions to the                           the general principles and requirements of food
           European Food Authority and to what extent are                                 law, establishing the European Food Safety
           any guidelines provided by that authority binding                              Authority and laying down procedures in mat-
           on the national court?                                                         ters of food safety (OJ 2002 L 31, p. 1, ‘the
                                                                                Basic Regulation’), or — once the period for
                                                                                transposition expires on 31 July 2003 —
                                                                                according to Directive 2002/46/EC of the
                                                                                European Parliament and of the Council of
                                                                                10 June 2002 on the approximation of the
Reference for a preliminary ruling by the Oberverwal-                                     laws of the Member States relating to food
tungsgericht für das Land Nordrhein-Westfalen by order                                    supplements (OJ 2002 L 183, p. 51, ‘the Food
of that Court of 7 July 2003 in the administrative                                        Supplements Directive’), and if so according to
proceedings between Orthica BV against Bundesrepublik                                     which parts of the directive?
Deutschland, represented by the Federal Ministry of
Consumer Protection, Nutrition and Agriculture; Inter-                              b)    If the first and second paragraphs of Article 2,
vener: the representative of the public interest at the                                   in conjunction with point (d) of the third
Oberverwaltungsgericht für das Land Nordrhein-                                            paragraph of Article 2 of the Basic Regulation
                           Westfalen                                                      applies, the following question arises: is it the
                                                                                case that it is no longer the product’s main
                        (Case C-317/03)                                                   (objective) purpose that is the decisive factor,
                                                                                but rather that a product which meets the
                        (2003/C 275/43)                                                   criteria for both a food and a medicine is,
                                                                                legally speaking, always — and only — a
                                                                                medicinal product? How material for these
Reference has been made to the Court of Justice of the                                    purposes is the type of product and how
European Communities by order of the Oberverwaltungsge-                                   material the individual product?
richt für das Land Nordrhein-Westfalen (Higher Administrative
Court for the Land of Nordrhein-Westfalen) of 7 July 2003,                    II.   a)    How is the term ‘pharmacological effect’, which
received at the Court Registry on 24 July 2003, for a                                     is critical for the purposes of classification,
preliminary ruling in the administrative proceedings between                              inter alia, under the first and second paragraphs
Orthica BV against Bundesrepublik Deutschland, represented                                of Article 2, in conjunction with point (d) of
by the Federal Ministry of Consumer Protection, Nutrition and                             the third paragraph of Article 2 of the Basic
Agriculture; Intervener: the representative of the public interest                        Regulation, to be defined for the purposes
at the Oberverwaltungsgericht für das Land Nordrhein-                                     of Community law? In particular, does the
Westfalen on the following questions:                                                     definition include a requirement that there be a
                                                                                health risk?
A.    1.   Is the contested product
                                                                                b)    Now that Directive 2001/83/EC of the Euro-
           ‘Acid Free C-1000’                                                             pean Parliament and of the Council of 6 Nov-
                                                                                ember 2001 on the Community code relating
           a foodstuff (perhaps in the form of a food sup-                                to medicinal products for human use has,
           plement) or a medicinal product? Is this finding                               by the second sentence of Article 1(2) (on
           binding on all the Member States?                                              ‘functional’ medicinal products), introduced the


title: Case T-570/11: Action brought on 7 November 2011 — Oetker Nahrungsmittel v OHIM (La qualité est la meilleure des recettes)

text:
               14.1.2012

               EN

               Official Journal of the European Union

               C 13/19

         Action brought on 7 November 2011 — Oetker Nahrungsmittel v OHIM (La qualité est la meilleure des recettes)
   (Case T-570/11)
   2012/C 13/40
   Language of the case: German

      Parties

      Applicant: Dr. August Oetker Nahrungsmittel KG (Bielefeld, Germany) (represented by: F. Graf von Stosch, lawyer)

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

      Form of order sought

               —

               Annul the decision of the Grand Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 July 2011 in Case R 1798/2010-G;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘La qualité est la meilleure des recettes’ for goods in Classes 16, 29, 30 and 32.

      Decision of the Examiner: Partial refusal of the application.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Articles 7(1)(b) and 7(3) of Regulation No 207/2009, since the Community trade mark concerned is distinctive.


title: Case T-126/07: Action brought on 20 April 2007 — Allos Walter Lang v OHIM — Kokoriko (Coco Rico)

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/33

         Action brought on 20 April 2007 — Allos Walter Lang v OHIM — Kokoriko (Coco Rico)
   (Case T-126/07)
   (2007/C 140/56)
   Language of the case: German
   Parties

      Applicant: Allos Walter Lang (Mariendrebber, Germany) (represented by: H. Heldt, Rechtsanwalt)

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

      Other party in the proceedings before the OHIM: KOKORIKO Ltda.
   Form of order sought

               —

               Suspension of proceedings until final determination on the actions for annulment pending before the OHIM in cases 2069 C and 2070 C;

               —

               Annulment of the decision of the Opposition Division on 31 May 2006 reference number B 696684 and the decision of the Second Board of Appeal of 16 February 2007, reference number R 1047/2006-2 and reference of the matter back to the Opposition Division for reconsideration.

               —

               OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark in question: The word mark ‘Coco Rico’ for goods in Class 30 (Application No 2 949 899).

      Proprietor of the trade marks relied upon in opposition: KOKORIKO Ltda.

      Trade marks relied upon in opposition: The work mark ‘KOKORIKO’ (Community Trade Mark No 101 386) for goods and services in Classes 29, 30 and 42, and the figurative mark ‘KOKORIKO’ (Community Trade Mark No 101 626) for goods and services in Classes 29, 30 and 42.

      Decision of the Opposition Division: Opposition upheld and application for registration dismissed.

      Decision of the Board of Appeal: Appeal dismissed.

      Grounds of appeal: In making its decision, the Opposition Division failed to take account of applicant's claim for annulment of the marks relied on in opposition. In the submission of the applícant, there is no further obstacle under Article 8(1)(b) of Regulation (EC) No 40/94 (1) to the registration being sought by the applicant in the event of the opposing marks being annulled.

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


title: Case T-819/14: Action brought on 16 December 2014  — Mezhdunaroden tsentar za izsledvane na maltsinstvata i kulturnite vzaimodeystvia v Commission

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/31

         Action brought on 16 December 2014 — Mezhdunaroden tsentar za izsledvane na maltsinstvata i kulturnite vzaimodeystvia v Commission
   (Case T-819/14)
   (2015/C 089/37)
   Language of the case: Bulgarian

      Parties

      Applicant: Mezhdunaroden tsentar za izsledvane na maltsinstvata i kulturnite vzaimodeystvia (Sofia, Bulgaria) (represented by: Hristo Hristev, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the European Commission act contained in its letter under reference number ARES (2014) 2848632 01/09/2014 and in debit note No 3241409948 attached to that letter under reference number ARES (2014) 2848632 01/09/2014;

               —

               reimburse the applicant the costs it incurred during the proceedings;

               —

               in the alternative, in the event that the action for annulment is dismissed, order the defendant, in accordance with the second subparagraph of Article 87(3) of the Rules of Procedure of the General Court, to pay the costs incurred by the applicant, in so far as the defendant deliberately ensured that the applicant would have to bear those costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law.
   First plea in law, alleging that the applicant’s action is admissible, in the light of the fact that the contested act must be regarded as an adopted act, in the context of the exercise of public powers, in relation to a third party who thereby acquires an interest in challenging the finding that it committed an infringement, and that finding constitutes a necessary prerequisite for the adoption of measures which adversely affect it.
   Second plea in law, alleging that the Commission infringed the principle of sound administration, in so far as, first, it failed to carry out an examination of the facts of the dispute which was complete in all respects, objective and consistent, or an examination of the legal arguments put forward by the person concerned and in so far as, secondly, it failed to provide reasons for its act.
   Third plea in law, alleging that the Commission infringed the principle of legal certainty in so far as the operative part of the act is unclear, in particular concerning the nature of that act.
   Fourth plea in law, alleging that the Commission infringed the principle of the protection of legitimate expectations, in so far as, in the absence of comments from the Commission regarding earlier projects, whether concerning their implementation or the treatment of financial documents, the applicant acquired a legitimate expectation that its documentation was correctly treated and that it was not necessary to provide corrections, whether to ongoing or future projects, since its legitimate expectation was created by a reliable source, namely the European Commission.


title: Case C-609/10 P: Order of the Court of 14 April 2011 — Dieter C. Umbach v European Commission (Appeal — Access to the documents of the Institutions — ‘TACIS programme’ — Contract concluded by the Commission — Termination of the contract — Dispute between the contracting parties — Application for access to documents — Manifest inadmissibility)

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/9

         Order of the Court of 14 April 2011 — Dieter C. Umbach v European Commission
   (Case C-609/10 P) (1)

   (Appeal - Access to the documents of the Institutions - ‘TACIS programme’ - Contract concluded by the Commission - Termination of the contract - Dispute between the contracting parties - Application for access to documents - Manifest inadmissibility)
   2011/C 211/15
   Language of the case: German

      Parties

      Appellant: Dieter C. Umbach (represented by: M. Stephani, Rechtsanwalt)

      Other party to the proceedings: European Commission (represented by: P. Costa de Oliveira and T. Scharf, Agents)

      Re:

   Appeal against the judgment of the General Court (Seventh Chamber) of 21 October 2010 in Case T-474/08 Umbach v Commission, by which the General Court dismissed an action for the annulment of the Commission Decision of 2 September 2008 refusing the appellant access to certain information included in documents relating to a contract concluded between the appellant and the Commission and concerning assistance with the drafting of an administrative code on behalf of the Russian Federation in the context of the TACIS programme — Application for access concerning the dispute between the appellant and the Commission following the termination of that contract — Infringement of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Umbach shall pay the costs.

      (1)  OJ C 89, 19.3.2011.


title: Case C-334/13: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 19 June 2013 — Nordex Food A/S v Hauptzollamt Hamburg-Jonas

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/23

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 19 June 2013 — Nordex Food A/S v Hauptzollamt Hamburg-Jonas
   (Case C-334/13)
   2013/C 260/41
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Nordex Food A/S

      Defendant: Hauptzollamt Hamburg-Jonas

      Questions referred

               1.

               For the purposes of the decision on the granting of an export refund, must it be assumed that the export licence has been duly presented pursuant to Article 4(1) of Commission Regulation (EC) No 800/1999 (1) laying down common detailed rules for the application of the system of export refunds on agricultural products if the export customs office accepted the export declaration without the presentation of the licence but in so doing permitted the exporter to submit the licence later within a certain time-limit and the exporter complied with this?

               2.

               If the reply to the first question is in the negative: does Article 4(1) of Commission Regulation (EC) No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products require, on a mandatory basis, that the export licence must be presented when lodging the export declaration or is it sufficient if the exporter first submits the export licence (granted to him prior to export) in the payment procedure?

               3.

               Is an exporter, who initially submitted forged customs documents in relation to the arrival of the exported product in the country of destination, able to submit valid customs documents to preserve his entitlement even after the expiry of the time-limits for submission laid down in Commission Regulation (EC) No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, if the delayed submission has not delayed or hindered the handling of the payment procedure because the application for a refund was initially rejected as a result of reasons other than the failure to submit such proof of arrival at destination and such proof is submitted after the forgery of those documents has been recognised?

               4.

               Is a penalty pursuant to Article 51 of Commission Regulation (EC) No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products incurred even if the export refund applied for did correspond to that which in fact had to be granted but in the payment procedure the exporter initially submitted documents on the basis of which the export refund could not have been granted to him?

      (1)  Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11).


title: Reference for a preliminary ruling by the Pretura Circondariale di Bassano del Grappa by order of that court of 17 July 1997 in the case of Claudio Matteazzi against Caseificio Sociale San Rocco scarl (Case C-287/97)

text:
C29SI22                   EN                  Official Journal of the European Communities                                    27 . 9 . 97
on 1 August 1997 by the Commission of the European                       Must Articles 9 and 2 of Regulation ( EEC ) No 3950/92 of
Communities, represented by Francisco de Sousa Fialho,                   28 December 1992 (') be interpreted as meaning that any
of its Legal Service, acting as Agent, with an address for               person delivering milk , regardless of the legal nature of
service in Luxembourg at the office of Carlos Gomez de la                the relationship which gave rise to the delivery, may be
Cruz, Wagner Centre, Kirchberg .                                         treated as a 'purchaser' liable to pay the additional levy
                                                                         and , in particular, as meaning that a group of cooperatives
                                                                         may be so regarded with respect to milk delivered, not
The applicant claims that the Court should :                             sold, to it by the members of the cooperative ?
                                                                         (') OJ L 405 , 31 . 12 . 1992 , p . 1 .
— declare that, by failing to adopt the laws, regulations
       or administrative provisions necessary to comply with
       European Parliament and Council Directive 94/63/
       EC (') of 20 December 1994 on the control of volatile
       organic compound (VOC ) emissions resulting from the
        storage of petrol and its distribution from terminals to
        service stations, the Portuguese Republic has failed to
        fulfil its obligations under the third paragraph of
        Article 189 of the EC Treaty and Article 10 ( 1 ) of             Reference for a preliminary ruling by the Pretura
        Directive 94/63/EC ,                                             Circondariale di Bassano del Grappa by order of that
                                                                         court of 17 July 1997 in the case of Consorzio fra i
                                                                           Caseifici dell'Altopiano di Asiago against Regione Veneto
— declare, in the alternative, that, by failing to inform                                           ( Case C-288/97
        the Commission forthwith of such measures, the
        Portuguese Republic failed to fulfil its obligations                                          ( 97/C 295/37 )
        under those provisions,
— order the Portuguese Republic to pay the costs .                       Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Pretura
                                                                         Circondariale di Bassano del Grappa ( District Magistrate's
                                                                          Court, Bassano del Grappa ) of 17 July 1997, received at
Pleas in law and main arguments adduced in support:
                                                                         the Court Registry on 29 July 1997, for a preliminary
                                                                         ruling in the case of Consorzio fra i Caseifici
                                                                         dell'Altopiano di Asiago v. Regione Veneto on the
The pleas in law and main arguments are analogous with                    following questions :
those in Case C-282/97 ( 2 ); the time-limit for transposing
the Directive expired on 31 December 1995 .
 (') OJ L 365 , 31 . 12 . 1994 , p. 24 .
                                                                          1 . Must Articles 9 and 2 of Regulation ( EEC ) No 3950/
 ( 2 ) See page 20 of this Official Journal .                                  92 of 28 December 1992 (') be interpreted as meaning
                                                                              that any person delivering milk, regardless of the legal
                                                                              nature of the relationship which gave rise to the
                                                                               delivery, may be treated as a 'purchaser' liable to pay
                                                                               the additional levy and, in particular, as meaning that
                                                                               a group of cooperatives may be so regarded with
                                                                               respect to milk delivered, not sold, to it by the
                                                                               members of the cooperative ?
 Reference for a preliminary ruling by the Pretura
 Circondariale di Bassano del Grappa by order of that
 court of 17 July 1997 in the case of Claudio Matteazzi
              against Caseificio Sociale San Rocco scarl                  2 . Must Article 2 ( 2 ) of Regulation ( EEC ) No 3950/92 of
                            ( Case C-287/97 )                                  28 December 1992 be interpreted as meaning that
                                                                               purchasers are actually and personally required to
                              ( 97/C 295/36 )                                  deduct from the amount paid to producers the amount
                                                                               payable by way of additional levy, or that it is merely
                                                                               a right conferred in the purchaser's interests, failure to
                                                                               exercise which cannot entail penalties ?
  Reference has been made to the Court of Justice of the
  European Communities by order of the Pretura
  Circondariale di Bassano del Grappa ( District Magistrate's             (') OJ L 405 , 31 . 12 . 1992 , p . 1 .
  Court, Bassano del Grappa ) of 17 July 1997, received at
  the Court Registry on 29 July 1997, for a preliminary
  ruling in the case of Claudio Matteazzi v. Caseificio
  Sociale San Rocco scarl on the following question :


title: Case T-314/07 R: Order of the Court of First Instance of 30 October 2007 — Simsalagrimm Filmproduktion v Commission and EACEA

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/44

         Order of the Court of First Instance of 30 October 2007 — Simsalagrimm Filmproduktion v Commission and EACEA
   (Case T-314/07 R)
   (2007/C 315/85)

      Language of the case: German

   The President of the Court of First Instance has ordered that the case be removed from the register.