title: Case T-361/99: Action brought on 30 December 1999 by Karl L. Meyer against the Commission of the European Communities and the European Investment Bank

text:
C 79/38                 EN                    Official Journal of the European Communities                                      18.3.2000
     necessarily caught by the inward processing system and                  Community trade mark in the Community Trade Marks
     were thus constantly monitored by the Turkish customs                   Bulletin for the claimed services in Class 36 (insurance;
     authorities. It was the customs offices themselves which                financial affairs);
     stamped generally on the same day the export declarations
     which cleared the importation of duty-free components
                                                                         — in the alternative, annul the contested decision;
     and the ATRS. The Turkish offices themselves also dealt
     with clearance of licences, the recovery of securities, export
     formalities and the issuing of ATR certificates.                    — order the Office to pay such of the applicant’s costs as are
                                                                             recoverable.
— the Commission, despite being aware of the problem posed
     by the irregularities concerning the payment of the Turkish
     duties on components originating in third countries, did
     not consider that it should take appropriate measures to            Pleas in law and main arguments
     alert the operators concerned.
                                                                         Trade mark:                   Word mark ‘EuroHealth’ — appli-
— the error was not evident to the company, whose good                                                 cation no 293977
     faith was beyond reproach, and that they cannot be
     accused of being negligent.                                         Goods or services:            Goods and services in Class 36
                                                                                (insurance; financial affairs)
— it is justified in relying in the present case on a special
     circumstance within the meaning of Article 13 of Regu-              Decision         contested    Refusal by the examiner to regis-
     lation No 1430/79.                                                  before the Board of           ter
                                                                         Appeal:
Finally, the applicant takes the view that in any event, in the
operations in question, it acted as fiscal representative for the        Pleas in law:                 — infringement of Article 7(1)(b)
importer, which alone could be considered liable for any                                                   of Regulation (EC) No 40/94
customs debt.
                                                                                — misapplication of Article
                                                                                7(1)(c) of Regulation (EC)
                                                                                No 40/94
                                                                                — failure to take into account
                                                                                Article 12(b) of Regulation
                                                                                (EC) No 40/94
Action brought on 24 December 1999 by DKV Deutsche
Krankenversicherungs AG against the Office for Harmon-
 isation in the Internal Market (Trade marks and Designs)
                          (Case T-359/99)
                           (2000/C 79/80)
                                                                         Action brought on 30 December 1999 by Karl L. Meyer
                                                                         against the Commission of the European Communities
                                                                                and the European Investment Bank
                   (Language of the case: German)
                                                                                (Case T-361/99)
An action against the Office for Harmonisation in the Internal
Market (Trade marks and Designs) was brought before the
Court of First Instance of the European Communities on                                            (2000/C 79/81)
24 December 1999 by DKV Deutsche Krankenversicherungs
AG, Cologne, Germany, represented by Stephan v. Peter-
dorff-Campen, of von Rospatt, von der Osten, Pross, of the                                  (Language of the case: French)
Düsseldorf Bar, with an address for service in Luxembourg at
the chambers of De Bandt, van Hecke, Lagae & Loesch, 11 Rue
Goethe, Luxembourg.                                                      An action against the Commission of the European Communi-
                                                                         ties and the European Investment Bank was brought before
                                                                         the Court of First Instance of the European Communities on
The applicant claims that the Court should:                              30 December 1999 by Karl L. Meyer, of Raiatea, French
                                                                         Polynesia, represented by Jean-Dominique des Arcis, of Uturoa,
— vary the contested decision and order the office to                    French Polynesia, with an address for service in Luxembourg
     publish the sign EuroHealth, application no 293977, as a            at the offices of Mr Pakowski, 20-22 Avenue Emile Reuter.
 ---pagebreak--- 18.3.2000              EN                   Official Journal of the European Communities                                       C 79/39
The applicant claims that the Court should:                            Action brought on 10 January 2000 by ‘N’ against the
                                                                                Commission of the European Communities
— hold that the Commission and/or the European Investment                                         (Case T-2/00)
    Bank have been guilty of manifest negligence in failing for
    15 years or more to require the local authorities and the
    bank SOCREDO to apply and make known association                                             (2000/C 79/82)
    decisions of the Council and comply with Community law
    applicable in French Polynesia, and that that failure has
    caused the applicant’s present legal difficulties;                                     (Language of the case: French)
— in addition, order the Commission to pay the applicant the           An action against the Commission of the European Communi-
    sum of FRF 25 000 in respect of irrecoverable costs which          ties was brought before the Court of First Instance of the
    he has had to incur to protect his interests.                      European Communities on 10 January 2000 by ‘N’, domiciled
                                                                       in Brussels, represented by Marc-Albert Lucas and Jean-Louis
                                                                       Dupont, of the Brussels Bar, with an address for service in
                                                                       Luxembourg at the Chambers of Luc Tecqmenne, 3 Rue des
                                                                       Capucins.
Pleas in law and main arguments
                                                                       The applicant claims that the Court should:
The applicant seeks a declaration that the Commission and the          — annul the Commission’s decision of 15 March 1999
European Investment Bank (EIB) are liable to compensate him                refusing to accept liability under Article 73 of the Staff
for the damage, imminent and foreseeable, which, he claims,                Regulations and Article 2 of the Rules on coverage of the
he is going to sustain owing to the failure of those institutions          risk of work-related accidents and illness in respect of the
to require the local authorities of French Polynesia and the               accident which he declared on 6 February 1996;
development bank SOCREDO to comply with Community
law and to apply and make known Council Decisions                      — so far as necessary, annul the implied decisions refusing
86/283/EEC of 30 June 1986 and 91/482/EEC of 25 July                       the applicant’s administrative claims of 10 and 15 June
1991 on the association of the overseas countries and                      1999 against that decision;
territories with the European Economic Community.
                                                                       — order the defendant to reimburse him with the medical
                                                                           fees he paid in implementation of the decision of 15 March
The applicant claims that, had the Commission and the EIB:                 1999;
                                                                       — order the defendant to pay him an amount of damages to
— properly carried out their monitoring and supervision                    be decided by the Court in compensation for non-material
    duties,                                                                damage suffered by him;
                                                                       — and order the defendant to pay the costs.
— exercised their power to bring proceedings before the
    Court of Justice, where appropriate,
                                                                       Pleas in law and main arguments
— applied the provisions of the association decisions which
    make expressly evident the legal situation of ‘partnership’,       The applicant challenges the Commission’s refusal to treat his
                                                                       infection with the human immunodeficiency (HIV) virus as an
                                                                       accident for the purposes of Article 73 of the Staff Regulations
                                                                       and Article 2 of the Rules on coverage of the risk of
— informed investors of the aim and purpose of those                   work-related accidents and illness. He relies on a breach of
    decisions, and informed the local people of their legal            Article 2 of those Rules against that decision, and argues as
    position vis-à-vis the Community and of their rights,              follows:
                                                                       (a) Error in law as to the nature of the injurious event and of
since 1984, the legal problems he has encountered because of
                                                                           the causal link between that event and the fact giving rise
the inveterate failure of the local authorities to observe the
                                                                           to it. It is clear that the requirements of Article 2 of the
primacy of Community law would never have arisen.
                                                                           Rules are met where there is evidence not of the specific
                                                                           fact which caused the injurious event but rather of
                                                                           the injurious event itself, including the fact that it was
                                                                           extraneous to the victim’s body and sudden, violent or
                                                                           abnormal. In this case, the opinion of the medical com-
                                                                           mittee, on which the contested decision is based, itself


title: Case C-614/10: Judgment of the Court (Grand Chamber) of 16 October 2012 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 95/46/EC — Processing of personal data and free movement of such data — Protection of natural persons — Article 28(1) — National supervisory authority — Independence — Supervisory authority and the Federal Chancellery — Personal and organisational links)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/6

         Judgment of the Court (Grand Chamber) of 16 October 2012 — European Commission v Republic of Austria
   (Case C-614/10) (1)

   (Failure of a Member State to fulfil obligations - Directive 95/46/EC - Processing of personal data and free movement of such data - Protection of natural persons - Article 28(1) - National supervisory authority - Independence - Supervisory authority and the Federal Chancellery - Personal and organisational links)
   2012/C 379/09
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: B. Martenczuk and B.R. Killmann, Agents,)

      Intervener in support of the applicant: European Data Protection Supervisor (EDPS) (represented by: H. Kranenborg, I. Chatelier and H. Hijmans, Agents)

      Defendant: Republic of Austria (represented by: G. Hesse, Agent)

      Intervener in support of the defendant: Federal Republic of Germany (represented by: T. Henze and J. Möller, Agents)

      Re:

   Failure of a Member State to fulfil its obligations — Infringement of the second subparagraph of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) — Obligation for the Member States to ensure that the national supervisory authorities responsible for supervising the processing of personal data exercise their duties entirely independently — Close personal and organisational connections between the supervisory authority and the Federal Chancellor’s Office (Bundeskanzleramt) — Subjection of the supervisory authority to the supervision of the Federal Chancellor

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to take all of the measures necessary to ensure that the legislation in force in Austria meets the requirement of independence with regard to the Datenschutzkommission (Data Protection Commission), more specifically by laying down a regulatory framework under which

                           —

                           the managing member of the Datenschutzkommission is a federal official subject to supervision,

                           —

                           the office of the Datenschutzkommission is integrated with the departments of the Federal Chancellery, and

                           —

                           the Federal Chancellor has an unconditional right to information covering all aspects of the work of the Datenschutzkommission,
                           the Republic of Austria has failed to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

               2.

               Orders the Republic of Austria to pay the costs incurred by the European Commission;

               3.

               Orders the Federal Republic of Germany and the European Data Protection Supervisor to bear their own respective costs.

      (1)  OJ C 72, 5.3.2011.


title: Case T-31/14: Action brought on 7 January 2014 — Banco Popular Español v Commission

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/21

         Action brought on 7 January 2014 — Banco Popular Español v Commission
   (Case T-31/14)
   2014/C 61/38
   Language of the case: Spanish

      Parties

      Applicant: Banco Popular Español, SA (Madrid, Spain) (represented by: E. Navarro Varona, P. Vidal Martínez, J. López-Quiroga Teijero and G. Canalejo Lasarte, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the contested decision under Article 263 TFEU in so far as the decision establishes the existence of State aid and orders its recovery from the investors;

               —

               in the alternative, annul Articles 1, 2 and 4(1) of the decision, inasmuch as they identify the investors as beneficiaries who have to repay the alleged aid;

               —

               in the alternative, declare inapplicable the order, in Article 4(1), for recovery of the aid from the investors, inasmuch as it is contrary to the principles of legal certainty and the protection of legitimate expectations since recovery may not be ordered from a date earlier than the publication of the decision to initiate [the formal investigation procedure];

               —

               in the alternative, annul Article 2 of the decision and declare invalid the methodology for determining the alleged advantage [conferred] to be repaid by the investors;

               —

               declare non-existent or, in the alternative, annul in part Article 4(1) of the decision relating to the prohibition on ‘transfer[ring] the burden of recovery on other subjects’, inasmuch as this amounts to a decision on the prohibition or presumed invalidity of the contractual clauses on recovery from third parties of the amounts the investors have to repay to the Spanish State; and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The decision contested in the present proceedings is the same as that contested in Case T-29/14 Taetel v Commission.
   The pleas in law and main arguments are those put forward in that case.


title: Case T-6/16: Judgment of the General Court of 8 June 2016 — AWG v EUIPO — Takko (Southern Territory 23°48’25’’S) (EU trade mark — Proceedings for a declaration of invalidity — EU word mark Southern Territory 23°48’25’’S — Earlier EU word mark SOUTHERN — Relative ground for refusal — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/46

         Judgment of the General Court of 8 June 2016 — AWG v EUIPO — Takko (Southern Territory 23o48’25’’S)

   (Case T-6/16) (1)

   ((EU trade mark - Proceedings for a declaration of invalidity - EU word mark Southern Territory 23o48’25’’S - Earlier EU word mark SOUTHERN - Relative ground for refusal - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009))
   (2017/C 239/57)
   Language of the case: German

      Parties

      Applicant: AWG Allgemeine Warenvertriebs GmbH (Köngen, Germany) (represented by: T. Sambuc, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Schifko, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO: Takko Holding GmbH (Telgte, Germany)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 10 November 2015 (Case R 735/2015-4), concerning invalidity proceedings between Takko Holding and AWG.

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders AWG Allgemeine Warenvertriebs GmbH to bear its own costs and those of the European Union Intellectual Property Office (EUIPO).

      (1)  OJ C 98, 14.3.2016.


title: Case C-487/04: Judgment of the Court (Fourth Chamber) of 29 June 2006 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Council Regulation (EC) No 1255/1999 and Commission Regulation (EC) No 2799/1999 — Milk and milk products — Skimmed-milk powder — System of traceability of skimmed-milk powder)

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/5

         Judgment of the Court (Fourth Chamber) of 29 June 2006 — Commission of the European Communities v Italian Republic
   (Case C-487/04) (1)

   (Failure of a Member State to fulfil obligations - Council Regulation (EC) No 1255/1999 and Commission Regulation (EC) No 2799/1999 - Milk and milk products - Skimmed-milk powder - System of traceability of skimmed-milk powder)
   (2006/C 212/08)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: A. Bordes and C. Cattabriga, Agents)

      Defendant: Italian Republic (represented by: D. Del Gaizo, Agent and D. Del Gaizo, avvocato)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (OJ 1999 L 160, p. 48) and Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder (OJ 1999 L 340, p. 3) — Institution of a system of traceability of milk powder not provided for by Community legislation
   Operative part of the judgment
   The Court hereby:

               1.

               Declares that by unilaterally instituting a system of traceability of skimmed-milk powder for certain uses, not provided for by harmonised provisions of Community law applicable to the sector, the Italian Republic has failed to fulfil its obligations under Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products and Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 31 of 05.02.2005


title: Case C-248/05: Action brought on 14 June 2005 by Commission of the European Communities against Ireland

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/9

         Action brought on 14 June 2005 by Commission of the European Communities against Ireland
   (Case C-248/05)
   (2005/C 205/17)
   Language of the case: English
   An action against Ireland was brought before the Court of Justice of the European Communities on 14 June 2005 by the Commission of the European Communities, represented by Ms Sara Pardo Quintillán and Ms Donatella Recchia, acting as Agents, assisted by F. Louis of the Brussels bar and C. O'Daly, Solicitor of the Law Society of Ireland, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that, in failing to take all the measures necessary to comply with Articles 4, 5, 7, 9 and 10 of Council Directive 80/68/EEC (1) on the protection of groundwater against pollution caused by certain dangerous substances at Ballymurtagh landfill (County Wicklow), Ireland has failed to comply with this Directive and with its obligations under the Treaty;

               2.

               declare that, in failing to take all the measures necessary to comply with Articles 5, 7, 8, 10, 12, and 13 of Council Directive 80/68/EEC with regard to indirect discharges from septic tanks, Ireland has failed to comply with this Directive and with its obligations under the Treaty; and

               3.

               order Ireland to pay the costs.

         Pleas in law and main arguments
   On the basis of complaints submitted to it, the Commission has become aware of widespread breaches of Council Directive 80/68/EEC in Ireland.
   First, since 1989 Ireland has permitted a municipal landfill to operate at Ballymurtagh, Co. Wicklow without formal authorization being granted as required under Article 4(2) of Directive 80/68. As a consequence of not complying with Article 4(2), Article 9 of the same directive was also breached. In addition, the waste licence covering the landfill site, granted by Ireland's Environmental Protection Agency only in 2001, infringes Articles 4, 5, 7 and 10 of Directive 80/68/EEC.
   Second, the Commission has uncovered evidence demonstrating that Ireland has failed to comply with Directive 80/68/EEC in relation to indirect discharges into groundwater from septic tanks. In this regard, the Commission has investigated circumstances relating to a hotel premises at Creacon Lodge, Co. Wexford, Ireland's longstanding interpretation of Article 5(1) of Directive 80/68/EEC and wider breaches of the same Directive throughout the Irish countryside. Reports on eutrophication of the Lakes of Killarney, Co. Kerry, Irish official water pollution reports, and breaches of Directive 80/778/EEC (2) on the quality of water intended for human consumption demonstrate Ireland's failure to comply with relevant provisions of Directive 80/68/EEC.
   The Commission therefore considers that Ireland has failed to fulfil its obligations under Articles 4, 5, 7, 8, 9, 10, 12 and 13 of Council Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances.

      (1)  Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, OJ L 20, 26.01.1980, p. 43.

      (2)  Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption, OJ L 229, 30.08.1980, p. 11.


title: Case T-262/07: Action brought on 13 July 2007 — Lithuania v Commission

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/53

         Action brought on 13 July 2007 — Lithuania v Commission
   (Case T-262/07)
   (2007/C 211/100)
   Language of the case: Lithuanian
   Parties

      Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas and E. Matulionytė)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Commission Decision C(2007) 1979 final (1) of 4 May 2007 or, in the alternative, annul that decision in so far as it is addressed to the Republic of Lithuania;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The contested decision sets out the quantities of agricultural products in free circulation in the new Member States at the date of accession exceeding the quantities which were to be regarded as constituting a normal carryover of stock at 1 May 2004, and the amounts to be charged to the new Member States in consequence of the expense of elimination of those excess quantities.
   The applicant considers the contested decision to be unlawful. It relies on four pleas in law in support of its action.
   1.   Lack of power
   The applicant states that paragraph 4 of Chapter IV of Annex IV to the Act of Accession does not confer upon the Commission power to impose on the Member States payments to the Community budget that are in the nature of penalties, in particular where it has not proved expenditure incurred by the Community in eliminating surplus stocks; also, the Commission exceeded the prescribed three-year period for adoption of the decision under Article 41 of the Act of Accession, which alone could be an appropriate legal basis for the decision.
   2.   Infringement of European Community law

      Infringement of the principle of legal certainty: the contested decision infringes the principle of legal certainty because the methodology and criteria for calculating surplus stocks were not known when determining built up stocks at the time of accession, which would have allowed Member States to prevent surplus stocks from arising or to eliminate them at the expense of the economic operators who had built up the stocks. Moreover, the contested decision laid down different criteria — and extended the list of products assessed — compared with Article 4 of Regulation No 1972/2003, under which the States scrutinise the building up of surplus stocks.

      Infringement of the principle of non-discrimination: unlike Commission Regulation (EC) No 144/97 on surplus stocks of agricultural products in Austria, Sweden and Finland, the contested decision assessed not only products which were granted export refunds or to which intervention measures were applied, but also stocks of other products. This principle has also been infringed by treating the different situations of new Member States in the same way and by failing, without justification, to have regard to the specific circumstances in which their stocks arose.

      Infringement of the principle of good administration and the principle of transparency: the contested decision does not disclose comprehensively the criteria for calculating the payments and, moreover, the criteria continually change. Also, although the Member States themselves assessed stocks in accordance with measures of Community law, the Commission, without giving reasons as to why that assessment is inappropriate and without disputing it, conducted another assessment of the same stocks on the basis of its own criteria.

      Infringement of provisions of the Act of Accession: first, the decision is not an appropriate means of achieving the objectives of the elimination of surplus stocks which is required by paragraph 2 of Chapter IV of Annex IV to the Act of Accession, in particular because it was not even attempted in the decision to link the penalties imposed with expenditure on the elimination of stocks actually incurred by the Community. Second, the decision was adopted after expiry of the period, laid down in Article 41 of the Act of Accession, of three years from the date of accession during which the Commission could adopt transitional measures.
   3.   Inadequate statement of reasons
   In the applicant's submission, the contested decision has an inadequate statement of reasons or entirely lacks reasons; in particular, it is not shown in the decision that (and in what amount) the European Community actually incurred, by reason of elimination of the alleged surplus stocks, expenditure which Member States should meet.
   4.   Manifest errors of assessment
   The applicant asserts that the Commission made manifest errors of assessment in that, first, it selected a method at macroeconomic level and did not assess the stocks that had actually arisen in the Member States and, second, when assessing specific arguments of the parties it did not have regard to the specific and objective circumstances obtaining in the Republic of Lithuania in which national stocks arose in the milk sector.

      (1)  Commission Decision 2007/361/EC of 4 May 2007 on the determination of surplus stocks of agricultural products other than sugar and the financial consequences of their elimination in relation to the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2007 L 138, p. 14).


title: Case T-432/04: Judgment of the Court of First Instance of 6 June 2007 — Parlante v Commission (Staff case — Officials — Promotion — Promotions procedure 2003 — Refusal of promotion — Award of promotion points — Consideration of comparative merits — Equal treatment — General implementing provisions of Article 45 of the Staff Regulations — Plea of illegality — Legitimate expectations)

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/21

         Judgment of the Court of First Instance of 6 June 2007 — Parlante v Commission
   (Case T-432/04) (1)

   (Staff case - Officials - Promotion - Promotions procedure 2003 - Refusal of promotion - Award of promotion points - Consideration of comparative merits - Equal treatment - General implementing provisions of Article 45 of the Staff Regulations - Plea of illegality - Legitimate expectations)
   (2007/C 170/38)
   Language of the case: French
   Parties

      Applicant: Walter Parlante (Enghien, Belgium) (represented by: L. Vogel, lawyer)

      Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and M. Velardo, acting as Agents)
   Re:
   Application for annulment of (1) the Appointing Authority's decision of 5 July 2004 rejecting the applicant's complaint against that same authority's decision to refuse him promotion to Grade C1 under the 2003 procedure and (2), in so far as it is necessary, the decision which was the subject of that complaint.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders each party to bear its own costs.

      (1)  OJ C 6, 8.1.2005.


title: Case T-522/13: Judgment of the General Court of 2 December 2015 — Tsujimoto v OHIM — Kenzo (KENZO ESTATE) (Community trade mark — Opposition proceedings — International registration designating the European Community — Word mark KENZO ESTATE — Earlier Community word mark KENZO — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009 — Belated submission of documents — Discretion of the Board of Appeal — Article 76(2) of Regulation No 207/2009 — Partial refusal of registration)

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/39

         Judgment of the General Court of 2 December 2015 — Tsujimoto v OHIM — Kenzo (KENZO ESTATE)
   (Case T-522/13) (1)

   ((Community trade mark - Opposition proceedings - International registration designating the European Community - Word mark KENZO ESTATE - Earlier Community word mark KENZO - Relative ground for refusal - Reputation - Article 8(5) of Regulation (EC) No 207/2009 - Belated submission of documents - Discretion of the Board of Appeal - Article 76(2) of Regulation No 207/2009 - Partial refusal of registration))
   (2016/C 027/46)
   Language of the case: English

      Parties

      Applicant: Kenzo Tsujimoto (Osaka, Japan) (represented by: A. Wenninger-Lenz, W. von der Osten-Sacken and M. Ring, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Kenzo (Paris, France) (represented by: P. Roncaglia, G. Lazzeretti, F. Rossi and N. Parrotta, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 3 July 2013 (Case R 1363/2012-2), relating to opposition proceedings between Kenzo and Mr K. Tsujimoto.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Kenzo Tsujimoto to pay the costs.

      (1)  OJ C 352, 30.11.2013.


title: Case C-413/04: Action brought on 27 September 2004 by the European Parliament against the Council of the European Union

text:
               6.11.2004

               EN

               Official Journal of the European Union

               C 273/25

         Action brought on 27 September 2004 by the European Parliament against the Council of the European Union
   (Case C-413/04)
   (2004/C 273/46)
   An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 27 September 2004 by the European Parliament, represented by A. Baas and U. Rösslein, acting as Agents, with an address for service in Luxembourg.
   The European Parliament claims that the Court should:

               —

               annul Council Directive 2004/85/EC of 28 June 2004 amending Directive 2003/54/EC of the European Parliament and of the Council as regards the application of certain provisions to Estonia; (1)

               —

               order the Council to pay all the costs.

         Pleas in law and main arguments:
   Article 57 of the Act of Accession 2003 is not the appropriate legal basis for the adoption of the disputed directive. The purpose of that provision is to adapt Community legislation by reason of accession and to apply to the new Member States Community acts which have not been adapted by the Act of Accession itself. Accordingly, further amendments cannot be based on Article 57 of the act. That provision cannot be used to introduce derogations to Community acts, particularly those which go beyond those expressly granted by and delimited in the Act of Accession.
   There has been a failure to give sufficient reasons for the disputed directive, as the justification for using Article 57 of the Act of Accession 2003 as a legal basis is not in any way apparent from the recitals in the preamble to and the other provisions of the directive.

      (1)  OJ L 236 of 7.7.2004, p. 10.


title: JUDGMENT OF THE COURT (Second Chamber) of 15 January 1998 in Case C-125/96 (reference for a preliminary ruling from the Hessisches Finanzgericht, Kassel): Hartmut Simon v. Hauptzollamt Frankfurt am Main (Additional milk levy - Date on which it becomes payable - Article 15(4) of Regulation (EEC) No 1546/88 - Meaning of 'any levy amount due')

text:
C 72/2               EN                   Official Journal of the European Communities                                       7.3.98
     have had to be repaid in the normal course of events                          JUDGMENT OF THE COURT
     would be contrary to the principle of proportionality.
                                                                                (Second Chamber)
(1) OJ C 370, 24.12.1994.                                                                 of 15 January 1998
    OJ C 333, 9.12.1995.
    OJ C 46, 17.2.1996.                                              in Case C-113/97 (reference for a preliminary ruling from
    OJ C 95, 30.3.1996.
                                                                     the Tribunal du Travail, Charleroi): Henia Babahenini v.
                                                                                The Belgian State (1)
                                                                     (EEC-Algeria Cooperation Agreement Ð Article 39(1) Ð
                                                                     Principle of non-discrimination in the field of social
                                                                      security Ð Direct effect Ð Scope Ð Disability allowance)
              JUDGMENT OF THE COURT
                                                                                (98/C 72/03)
                      (Second Chamber)
                     of 15 January 1998
in Case C-125/96 (reference for a preliminary ruling from                           (Language of the case: French)
the Hessisches Finanzgericht, Kassel): Hartmut Simon v.
            Hauptzollamt Frankfurt am Main (1)
(Additional milk levy Ð Date on which it becomes
payable Ð Article 15(4) of Regulation (EEC) No 1546/88
                                                                       (Provisional translation; the definitive translation will be
           Ð Meaning of any levy amount due')
                                                                              published in the European Court Reports)
                         (98/C 72/02)
               (Language of the case: German)
                                                                     In Case C-113/97: reference to the Court under Article 177
                                                                     of the EC Treaty from the Tribunal du Travail (Labour
  (Provisional translation; the definitive translation will be       Court), Charleroi (Belgium), for a preliminary ruling in
         published in the European Court Reports)                    the proceedings pending before that court between Henia
                                                                     Babahenini and The Belgian State Ð on the interpretation
In Case C-125/96: reference to the Court under Article 177           of Article 39(1) of the Cooperation Agreement between
of the EC Treaty from the Hessisches Finanzgericht                   the European Economic Community and the People's
(Finance Court, Hesse), Kassel (Germany), for a                      Democratic Republic of Algeria, signed in Algiers on
preliminary ruling in the proceedings pending before that            26 April 1976 and concluded on behalf of the Community
court between Hartmut Simon and Hauptzollamt                         by Council Regulation (EEC) No 2210/78 of 26 September
Frankfurt am Main Ð on the interpretation of                         1978 (OJ L 263, 27.9.1978, p. 1) Ð the Court (Second
Article 15(4) of Commission Regulation (EEC) No 1546/                Chamber), composed of: R. Schintgen (Rapporteur),
88 of 3 June 1988 laying down detailed rules for the                 President of the Chamber, G. F. Mancini and G. Hirsch,
application of the additional levy referred to in Article 5c         Judges; F. G. Jacobs, Advocate General; R. Grass,
of Regulation (EEC) No 804/68 (OJ L 139, 4.6.1988,                   Registrar, has given a judgment on 15 January 1998, in
p. 12) Ð the Court (Second Chamber), composed of: R.                 which it has ruled:
Schintgen, President of the Chamber, H. Ragnemalm and
G. F. Mancini (Rapporteur), Judges; M. B. Elmer,
Advocate General; H. von Holstein, Deputy Registrar, for
the Registrar, has given a judgment on 15 January 1998,              Article 39(1) of the Cooperation Agreement between the
in which it has ruled:                                               European Economic Community and the People's
                                                                     Democratic Republic of Algeria, signed in Algiers on
Article 15(4) of Commission Regulation (EEC) No 1546/                26 April 1976 and concluded on behalf of the Community
88 of 3 June 1988 laying down detailed rules for the                 by Council Regulation (EEC) No 2210/78 of 26 September
application of the additional levy referred to in Article 5c         1978, is to be interpreted as precluding a Member State
of Regulation (EEC) No 804/68 must be construed as                   from refusing to grant a benefit, such as disability
meaning that the amount of levy due refers, within the               allowance, provided for under its legislation in favour of
context of Formula A, to the amount objectively payable              nationals resident in that State and irrespective of whether
by a milk producer by reason of the fact that he has                 they have been working in an employed capacity, to the
actually exceeded his reference quantity even where the              disabled spouse of a retired Algerian worker who lives
exact amount can be established only after verification of           with her husband in the Member State in question, on the
the quantities delivered, and becomes payable on the date            ground that she is of Algerian nationality and has never
laid down in that provision, that is to say, not more than           been engaged in a trade or profession.
three months following the end of each 12-month period,
namely on the following 30 June.
                                                                     (1) OJ C 142, 10.5.1997.
(1) OJ C 158, 1.6.1996.


title: Case C-357/10: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 19 July 2010 — Duomo Gpa Srl v Comune di Baranzate

text:
               25.9.2010

               EN

               Official Journal of the European Union

               C 260/6

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 19 July 2010 — Duomo Gpa Srl v Comune di Baranzate
   (Case C-357/10)
   ()
   2010/C 260/09
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per la Lombardia

      Parties to the main proceedings

      Applicant: Duomo Gpa Srl

      Defendant: Comune di Baranzate

      Questions referred

               1.

               Does the correct application of Articles 15 and 16 of Directive 2006/123/EC (1) preclude the provisions of national law laid down in Article 32(7)(a) of Legislative Decree No 185 of 29 November 2008, added by Converting Law No 2 of 28 January 2009 and subsequently amended by Law No 14 of 27 February 2009, under which:

                           —

                           the award of services relating to the assessment and collection of taxes and other local authority revenue to persons who fail to satisfy the minimum financial requirement of fully paid up share capital in the sum of EUR 10 million is to be null and void;

                           —

                           persons entered in the relevant register of private persons authorised to carry out activities relating to the assessment and collection of taxes and other revenue of the provinces and municipalities are required to bring their share capital up to the minimum figure in question, pursuant to Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended;

                           —

                           it is prohibited to acquire new contracts or participate in tender procedures for the operation of services relating to the assessment and collection of taxes and other local authority revenue until the abovementioned requirement to adjust share capital has been met; and

                     companies in which all or a majority of the share capital is in public ownership are excluded from those provisions?

               2.

               Does the correct application of Articles 3, 10, 43, 49 and 81 of the Treaty establishing the European Community preclude the provisions of national law laid down in Article 32(7)(a) of Legislative Decree No 185 of 29 November 2008, added by Converting Law No 2 of 28 January 2009 and subsequently amended by Law No 14 of 27 February 2009, under which:

                           —

                           the award of services relating to the assessment and collection of taxes and other local authority revenue to persons who fail to satisfy the minimum financial requirement of fully paid up share capital in the sum of EUR 10 million is to be null and void;

                           —

                           persons entered in the relevant register of private persons authorised to carry out activities relating to the assessment and collection of taxes and other revenue of the provinces and municipalities are required to bring their share capital up to the minimum figure in question, pursuant to Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended;

                           —

                           it is prohibited to acquire new contracts or participate in tender procedures for the operation of services relating to the assessment and collection of taxes and other local authority revenue until the abovementioned requirement to adjust share capital has been met; and

                     companies in which all or a majority of the share capital is in public ownership are excluded from those provisions?

      (1)  OJ 2006 L 376, p. 36.


title: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale per Emilia-Romagna, Parma Division, by order of that court of 10 March 1998 in the case of Teckal Srl against Municipality of Viano (Reggio Emilia) and AGAC - Azienda Gas-Acqua Consorziale di Reggio Emilia (Case C-107/98)

text:
C 209/20              EN                 Official Journal of the European Communities                                     4.7.98
Reference for a preliminary ruling by the Tribunale                      companies for the management of local public
Amministrativo Regionale per Emilia-Romagna, Parma                       services, within the meaning of 4(6) of Law No 95 of
Division, by order of that court of 10 March 1998 in the                 29 March 1995 (converting into law, with
case of Teckal Srl against Municipality of Viano (Reggio                 amendments, Decree-Law No 26 of 31 January
Emilia) and AGAC Ð Azienda Gas-Acqua Consorziale di                      1995), even where that participation purports to be
                        Reggio Emilia                                    for the purpose of promoting employment or the re-
                       (Case C-107/98)                                   employment of workers' already assigned to the
                                                                         service the management of which is at issue, having
                        (98/C 209/38)                                    regard to Article 5 of Law No 184 of 22 March 1971
                                                                         establishing GEPI SpA, which gives GEPI the same
Reference has been made to the Court of Justice of the                   task of contributing to the maintenance and growth
European Communities by an order of the Parma Division                   of employment levels facing temporary difficulties,
of the Tribunale Amministrativo Regionale per Emilia-                    such as to demonstrate the specific possibility of
Romagna (Regional Administrative Court for Emilia-                       reorganising the undertakings concerned', in the
Romagna) of 10 March 1998, which was received at the                     manner set out therein;
Court Registry on 14 April 1998, for a preliminary ruling
in the case of Teckal Srl against Municipality of Viano             (b) whether, on the basis of the abovementioned
(Reggio Emilia) and AGAC Ð Azienda Gas-Aqua                              legislation governing GEPI SpA (later Italinvest SpA)
Consorziale di Reggio Emilia, on the following question:                 there may be applicable to this case the derogation
                                                                         provided for in Article 90(2) of the Treaty according
Whether the award by a Municipality of the contract for                  to which undertakings entrusted with the operation
the management of the heating installations of certain                   of services of general economic interest . . . shall be
municipal buildings to a consortium of municipalities                    subject to the rules contained in this Treaty, in
constitutes a case of direct award of contract of the kind               particular to the rules on competition, in so far as the
referred to in Article 6 of Council Directive 92/50/EEC (1)              application of those rules does not obstruct the
and whether the legislative provisions and regulations                   performance in law or in fact, of the particular tasks
which provide for that award of contract are compatible                  assigned to them'.
with the provisions of the Treaty.
(1) OJ L 209, 24.7.1992, p. 1.
                                                                    References for preliminary rulings by the Tribunal
                                                                    Económico-Administrativo Regional de CatalunÄa by
                                                                    orders of that court of 19 December 1997 in Cases
                                                                    C-110/98 to C-115/98, C-117/98, C-120/98 and C-125/
Reference for a preliminary ruling by the Tribunale                 98 to C-146/98, of 30 January 1998 in Cases C-121/98 to
Amministrativo Regionale della Campania (Naples) by                 C-124/98 and C-147/98 and of 25 February 1998 in
order of that court of 19 November/11 December 1997 in              Cases C-116/98, C-118/98 to C-119/98, Gabalfrisa S.A.
the case of RI.SAN Srl against Municipality of Ischia and           and Others v. Administración Estatal de la Agencia
GEPI SpA Ð now called Italia Investimenti SpA (Italinvest                               Tributaria (A.E.A.T.)
                               SpA)
                                                                                (Cases C-110/98 to C-147/98)
                       (Case C-108/98)
                                                                                (98/C 209/40)
                        (98/C 209/39)
                                                                    References have been made to the Court of Justice of the
Reference has been made to the Court of Justice of the              European Communities by orders (all received at the
European Communities by an order of the Tribunale                   Court Registry on 14 April 1998) of the Tribunal
Amministrativo Regionale della Campagna (Regional                   Económico-Administrativo        Regional    de     CatalunÄa
Administrative Court for la Campania) (Naples), of                  (Regional Economic and Administrative Court, Catalonia)
19 November/11 December 1997, which was received at                 of 19 December 1997, for a preliminary ruling in the cases
the Court Registry on 9 April 1998, for a preliminary               of (C-110/98) Gabalfrisa S.A. (Rec. 08/19095/95), (C-111/
ruling in the case of RI.SAN Srl against Municipality of            98) Marcelino Martín Almeida (Rec. 08/6419/96), (C-112/
Ischia and GEPI SpA Ð now called Italia Investimenti                98) Tarragona 161, S.A. (Rec. 08/6187/96), (C-113/98)
SpA (Italinvest SpA), on the following questions:                   Nova Ametlla, S.L. (Rec. 95/97), (C-114/98) Habitats del
                                                                    Golf, S.A. (Rec. 08/1344/97), (C-115/98) Habitats del
(a) whether the provisions of Article 55 of the Treaty              Golf, S.A. (Rec. 08/1345/97), (C-117/98) Pascual García
     (which is applicable inter alia to the services sector         García (Rec. 08/11067/96), (C-120/98) Gran Vía
     by virtue of the reference in Article 66 of the Treaty),       Zaragoza, S.A. (Rec. ac. 08/11917 and 08/3564/97),
     pursuant to which the provisions of this Chapter              (C-125/98) PlaÂcida JimeÂnez, S.L. (Rec. 08/10022/96),
     shall not apply, so far as any given Member State is           (C-126/98) HidroeleÂctrica de Rueda, S.L. (Rec. ac. 08/
     concerned, to activities which in that State are               9778/96 and 08/10347/96), (C-127/98) Arus Vilasar, S.L.
     connected, even occasionally, with the exercise of             (Rec. ac. 08/8539/96 and 08/10684/96), (C-128/98)
     official authority', must be interpreted so widely as to       Crisbachs Coloma, S.L. (Rec. 08/6417/96), (C-129/98)
     include the activities of GEPI SpA (later Italinvest           Minulis-2, C.B. (Rec. ac. 08/3923/96 and 08/5553/96),
     SpA) as a participant in local authorities' mixed              (C-130/98) Agrupación EnergeÂtica Hospital General de


title: Case C-273/10: Order of the Court of 18 March 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain)) — David Montoya Medina v Fondo de Garantia Salarial and Universidad de Alicante (Article 104(3) of the Rules of Procedure — Social policy — Directive 1999/70/EC — Clause 4 of the Framework Agreement on fixed-term work — Fixed-term employment contracts in the public sector — Entitlement to triennial seniority bonuses — Principle of non-discrimination)

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/10

         Order of the Court of 18 March 2011 (reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain)) — David Montoya Medina v Fondo de Garantia Salarial and Universidad de Alicante
   (Case C-273/10) (1)

   (Article 104(3) of the Rules of Procedure - Social policy - Directive 1999/70/EC - Clause 4 of the Framework Agreement on fixed-term work - Fixed-term employment contracts in the public sector - Entitlement to triennial seniority bonuses - Principle of non-discrimination)
   2011/C 186/16
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de la Comunidad Valenciana (Spain)

      Parties to the main proceedings

      Applicant: David Montoya Medina

      Defendants: Fondo de Garantia Salarial and Universidad de Alicante

      Re:

   Reference for a preliminary ruling — Tribunal Superior de Justicia de la Comunidad Valenciana — Interpretation of Clause 4(4) of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Contracts of employment as a university lecturer and researcher concluded with State universities — Exclusion of certain benefits from fixed-term contracts

      Operative part of the order

   Clause 4(1) of the Framework Agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation which, without any objective justification, restricts the right to receive a seniority bonus to university lecturers on permanent contracts, excluding lecturers on fixed-term contracts where, as regards receipt of that bonus, those two categories of workers are in comparable situations.

      (1)  OJ C 221, 14.8.2010.


title: Case T-243/08: Action brought on 23 June 2008 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game)

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/61

         Action brought on 23 June 2008 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game)
   (Case T-243/08)
   (2008/C 209/110)
   Language in which the application was lodged: English
   Parties

      Applicant: Ravensburger AG (Ravensburg, Germany) (represented by: G. Würtenberger, lawyer, and R. Kunze, lawyer and Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Educa Borras SA (Sant Quirze del Valles, Barcelona, Spain)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 April 2008 in case R 597/2007-2; and

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘EDUCA Memory game’ for goods in class 28 — Community trade mark registration No 495 036

      Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Party requesting the declaration of invalidity of the Community trade mark: The applicant

      Trade mark right of the party requesting the declaration of invalidity: The international word trade mark ‘MEMORY’ registration No R 393 512; the Benelux word trade mark ‘MEMORY’ registration No 38 328; the German word trade mark ‘MEMORY’ registration No 964 625

      Decision of the Cancellation Division: Invalidity of the Community trade mark concerned

      Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

      Pleas in law: (i) infringement of Article 8(1) of Council Regulation No 40/94 as the Board of Appeal erred in concluding that the potentially colliding element in the Community trade mark concerned is of purely descriptive nature and thus cannot cause a risk of confusion with the applicant's earlier trade marks; (ii) infringement of Article 8(5) of Council Regulation No 40/94 as the Board of Appeal erred in requiring that applicant prove a risk of confusion; (iii) infringement of Article 74 of Council Regulation No 40/94 as the Board of Appeal did not properly take into account the labelling practice of the relevant market; (iv) infringement of Article 75 of Council Regulation No 40/94 as the Board of Appeal failed to convene a hearing, as requested by the applicant.


title: Case T-363/05: Action brought on  21 September 2005  — COFRA s.r.l. v Commission of the European Communities

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/34

         Action brought on 21 September 2005 — COFRA s.r.l. v Commission of the European Communities
   (Case T-363/05)
   (2005/C 296/70)
   Language of the case: Italian
   Parties

      Applicant(s): COFRA s.r.l. (Barletta (Italy)) (represented by Michele Arcangelo Calabrese, lawyer)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant claims, subject to all procedural reservations, that the Court should declare that, by having acted unlawfully as set out in the application, the Commission has seriously and manifestly infringed Community law, and has caused the applicant financial damage and must therefore be ordered to pay the applicant compensation:

               (a)

               of EUR 387 700,00, revalued in accordance with the ISTAT (Italian Central Statistical Office) indices of 26 June 2001 until the date of judgment;

               (b)

               of EUR 387 700,00, revalued in accordance with the ISTAT indices of 26 June 2002 until the date of judgment;

               (c)

               of EUR 387 700,00, revalued in accordance with the ISTAT indices of 26 June 2003 until the date of judgment;

               (d)

               interest on those revalued sums,

         and that the Court should order the defendant to pay the costs, including those of the party's technical consultancy.
   Pleas in law and main arguments
   The pleas in law and main arguments are those put forward in Case T-362/05 Nuova Agricast v Commission.


title: Cases C-88/01, C-89/01 and C-90/01: Reference for a preliminary ruling by the Tribunale di Brescia, by orders of that court of 20 January 2001, in the cases of (1) Agricola Torriani Sas; (2) Finanziaria Immobiliare Perugino SpA and (3) San Marco SpA v Ministero delle Finanze

text:
C 118/18                EN                        Official Journal of the European Communities                                     21.4.2001
Reference for a preliminary ruling by the Tribunale di                       The applicant claims that the Court should:
Brescia, by orders of that court of 20 January 2001, in
the cases of (1) Agricola Torriani Sas; (2) Finanziaria
                                                                             —     annul Commission decision C(2000) 3565 final of
Immobiliare Perugino SpA and (3) San Marco SpA v
                                                                                15 November 2000 relating to State aid which Italy
                     Ministero delle Finanze
                                                                                intends to grant to Solar Tech Srl, insofar as it has failed
                                                                                to apply 15 % GSE (1), provided for small and medium-
             (Cases C-88/01, C-89/01 and C-90/01)                                  sized enterprises (SMEs), to the aid granted, and order the
                                                                                Commission to pay the costs.
                          (2001/C 118/28)
References have been made to the Court of Justice of the                     Pleas in law and main arguments
European Communities by orders of 20 anuary 2001, received
at the Court Registry on 21 February 2001, for a preliminary
ruling in the cases of (1) Agricola Torriani Sas; (2) Finanziaria            The Italian Government submits that, by basing the decision
Immobiliare Perugino SpA and (3) San Marco SpA v Ministero                   not to recognise the increment provided for on a definition of
delle Finanze on the following questions:                                    SMEs which fails to take account exclusively of the require-
                                                                             ments mentioned in the rules for aid to SMEs, the Commission
1.    Is Article 11(1) of Italian Law No 448 of 23 December                  infringed those rules, which the Court has held to be binding.
      1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
      supplement) compatible with Community law, in particu-
                                                                             The Italian Government further submits that the contested
      lar with Articles 10 and 12 of Council Directive
                                                                             application of the rules contained in the decision at issue is
      69/335/EEC (1), inasmuch as it provides that the adminis-
      trative charge is payable at a flat annual rate for regis-             also contrary to the principles of legitimate expectations and
                                                                             legal certainty.
      tration of ‘other company documents’ for each of the
      years from 1985 to 1992, equal to the sum of the
      sum of ITL 750 000 for public limited companies and
      partnerships limited by shares and ITL 400 000 for                     (1) GSE = maximum concession in gross subsidy equivalent granted
      private limited companies?                                                 according to the size of the undertaking and location of the
                                                                                production unit.
2.    Is Article 11(3) of Law No 448/98 compatible with
      Community law, inasmuch as it provides that interest on
      the sums to be reimbursed in so far as they exceed the
      sum provided for by Article 11(1) should be calculated
      according to the legal rate in force at the date on which
      that Law entered into force (2.5% per annum) and not
      according to the rate provided for by Article 5 with
      respect to Article 1 of Law No 29 of 26 January 1961, as
      subsequently amended?
                                                                             Reference for a preliminary ruling by the Verwaltungsge-
                                                                             richtshof, Vienna, by order of that court of 29 January
(1) Council Directive 69/335/EEC of 17 July 1969 concerning                  2001 in appeal proceedings brought by (1) Gottfried
    indirect taxes on the raising of capital (OJ, English Special Edition                     Linhart and (2) Dr Hans Biffl
    1969 (11), p. 412).
                                                                                (Case C-99/01)
                                                                                (2001/C 118/30)
                                                                             Reference has been made to the Court of Justice of the
Action brought on 21 February 2001 by the Italian                            European Communities by order of the Verwaltungsgerichts-
Republic against the Commission of the European Com-                         hof (Supreme Administrative Court), received at the Court
                               munities                                      Registry on 28 February 2001, for a preliminary ruling in the
                                                                             appeal proceedings brought by (1) Gottfried Linhart and (2)
                                                                             Dr Hans Biffl, on the following questions:
                           (Case C-91/01)
                                                                             (1) Do Articles 28 and 30 EC, Council Directive 76/768/EEC
                          (2001/C 118/29)                                          of 27 July 1976 (1) on the approximation of the laws of
                                                                                the Member States relating to cosmetic products, as
An action against the Commission of the European Communi-                          amended by Council Directives 88/667/EEC of
ties was brought before the Court of Justice of the European                       21 December 1988 (2) (OJ 1988 L 382, p. 46) and
Communities on 21 February 2001 by the Italian Republic,                           Council Directive 93/35/EEC of 14 June 1993 (3) (OJ
represented by Danilo Del Gaizo, Avvocato dello Stato.                             1993 L 151, p. 32) (hereinafter ‘Directive 76/768’), in


title: Judgment of the Court (Sixth Chamber) of 21 November 2002 in Case C-23/01 (Reference for a preliminary ruling from the Hof van Beroep te Brussel): Robelco NV v Robeco Groep NV (Directive 89/104/EEC — Article 5(5) — Provisions on protection against use of a sign other than for the purposes of distinguishing goods or services — Extent of such protection — Signs similar to the mark)

text:
C 7/4                    EN                       Official Journal of the European Communities                                          11.1.2003
1.    Articles 43 EC and 48 EC preclude a national provision such            preliminary ruling in the proceedings pending before that
      as that at issue in the main proceedings, which excludes the           court between Cofidis SA and Jean-Louis Fredout, on the
      transferor at undervalue of shares in companies from the benefit       interpretation of Council Directive 93/13/EEC of 5 April 1993
      of deferral of tax due on capital gains made on those shares           on unfair terms in consumer contracts (OJ 1993 L 95,
      where the transfer is to a foreign legal person in which the           p. 29), the Court (Fifth Chamber), composed of: M. Wathelet,
      transferor directly or indirectly has a holding — provided that        President of the Chamber, C.W.A. Timmermans,
      that holding gives him definite influence over the decisions of        D.A.O. Edward, A. La Pergola and P. Jann (Rapporteur),
      that foreign legal person and allows him to determine its              Judges; A. Tizzano, Advocate General; L. Hewlett, Principal
      activities — or to a Swedish limited company which is a branch         Administrator, for the Registrar, has given a judgment on
      of such a foreign legal person.                                        21 November 2002, in which it has ruled:
2.    Articles 56 EC and 58 EC preclude a national provision such
                                                                             Council Directive 93/13/EEC of 5 April 1993 on unfair terms in
      as that at issue in the main proceedings, which excludes the
                                                                             consumer contracts precludes a national provision which, in proceed-
      transferor at undervalue of shares in companies from the benefit
                                                                             ings brought by a seller or supplier against a consumer on the basis
      of deferral of tax due on capital gains made on those shares
                                                                             of a contract concluded between them, prohibits the national court,
      where the transfer is to a foreign legal person in which the
                                                                             on expiry of a limitation period, from finding, of its own motion or
      transferor directly or indirectly has a holding which is not such
                                                                             following a plea raised by the consumer, that a term of the contract
      as to give him definite influence over the decisions of that
                                                                             is unfair.
      foreign legal person or allow him to determine its activities.
                                                                             (1 ) OJ C 61 of 24.2.2001.
( 1) OJ C 45 of 10.2.2001.
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                            (Sixth Chamber)
                       of 21 November 2002                                                         of 21 November 2002
in Case C-473/00 (Reference for a preliminary ruling from                    in Case C-23/01 (Reference for a preliminary ruling from
the tribunal d’instance de Vienne): Cofidis SA v Jean-                       the Hof van Beroep te Brussel): Robelco NV v Robeco
                           Louis Fredout (1)                                                             Groep NV (1)
(Directive 93/13/EEC — Unfair terms in consumer contracts                    (Directive 89/104/EEC — Article 5(5) — Provisions on
— Action brought by a seller or supplier — National                          protection against use of a sign other than for the purposes
provision prohibiting the national court from finding a term                 of distinguishing goods or services — Extent of such
unfair, of its own motion or following a plea raised by the                              protection — Signs similar to the mark)
        consumer, after the expiry of a limitation period)
                                                                                (2003/C 7/07)
                            (2003/C 7/06)
                                                                                (Language of the case: Dutch)
                     (Language of the case: French)
                                                                             (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                          in the European Court Reports)
                    in the European Court Reports)
                                                                             In Case C-23/01: Reference to the Court under Article 234 EC
In Case C-473/00: Reference to the Court under Article 234                   by the Hof van Beroep te Brussel (Belgium) for a preliminary
EC by the Tribunal d’instance de Vienne (France) for a                       ruling in the proceedings pending before that court between
 ---pagebreak--- 11.1.2003                  EN                      Official Journal of the European Communities                                                  C 7/5
Robelco NV and Robeco Groep NV on the interpretation                          of public policy, public security or public health (OJ, English
of Article 5(5) of First Council Directive 89/104/EEC of                      Special Edition 1963-1964, p. 117), the Court, composed of:
21 December 1988 to approximate the laws of the Member                        G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
States relating to trade marks (OJ 1989 L 40, p. 1), the Court                and R. Schintgen (Presidents of Chambers), C. Gulmann,
(Sixth Chamber), composed of: R. Schintgen, President of the                  D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris,
Second Chamber, acting for the President of the Sixth Chamb-                  F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
er, V. Skouris, F. Macken (Rapporteur), N. Colneric and                       Judges; A. Tizzano, Advocate General; M.-F. Contet, Adminis-
J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advo-                   trator, for the Registrar, has given a judgment on 26 November
cate General; L. Hewlett, Principal Administrator, for the                    2002, in which it has ruled:
Registrar, has given a judgment on 21 November 2002, in
which it has ruled:                                                           Neither Article 48 of the EC Treaty (now, after amendment,
                                                                              Article 39 EC) nor the provisions of secondary legislation which
Article 5(5) of First Council Directive 89/104/EEC of 21 December             implement the freedom of movement for workers preclude a Member
1988 to approximate the laws of the Member States relating to                 State from imposing, in relation to a migrant worker who is a
trade marks must be interpreted as meaning that a Member State                national of another Member State, administrative police measures
may, if it sees fit, and subject to such conditions as it may determine,      limiting that worker’s right of residence to a part of the national
protect a trade mark against use of a sign other than for the purposes        territory, provided
of distinguishing goods or services, where use of that sign without
due cause takes unfair advantage of, or is detrimental to, the                —      that such action is justified by reasons of public order or public
distinctive character or the repute of the trade mark.                               security based on his individual conduct;
                                                                              —      that, by reason of their seriousness, those reasons could
( 1) OJ C 79 of 10.3.2001.                                                           otherwise give rise only to a measure prohibiting him from
                                                                                residing in, or banishing him from, the whole of the national
                                                                                territory; and
                                                                              —      that the conduct which the Member State concerned wishes to
                                                                                prevent gives rise, in the case of its own nationals, to punitive
                                                                                measures or other genuine and effective measures designed to
                                                                                combat it.
                   JUDGMENT OF THE COURT
                                                                              (1 ) OJ C 108 of 7.4.2001.
                         of 26 November 2002
in Case C-100/01 (Reference for a preliminary ruling from
the Conseil d’État): Ministre de l’Intérieur v Aitor Oteiza
                               Olazabal ( 1)
                                                                                JUDGMENT OF THE COURT
(Freedom of movement for persons — Restrictions — Public
policy (ordre public) — Police measures limiting the right of                                              (Sixth Chamber)
residence of a national of another Member State to part of
                          the national territory)                                                       of 26 November 2002
                              (2003/C 7/08)                                   in Case C-202/01: Commission of the European Communi-
                                                                                ties v French Republic ( 1)
                       (Language of the case: French)                         (Failure by a Member State to fulfil its obligations —
                                                                              Directive 79/409/EEC — Conservation of wild birds —
(Provisional translation; the definitive translation will be published        Classification as special protection areas — Plaine des
                      in the European Court Reports)                                                            Maures)
                                                                                (2003/C 7/09)
In Case C-100/01: Reference to the Court under Article 234                                           (Language of the case: French)
EC by the Conseil d’État (France) for a preliminary ruling in
the proceedings pending before that court between Ministre
                                                                              (Provisional translation; the definitive translation will be published
de l’Intérieur and Aitor Oteiza Olazabal, on the interpretation
                                                                                in the European Court Reports)
of Articles 6, 8a and 48 of the EC Treaty (now, after
amendment, Articles 12 EC, 18 EC and 39 EC) and of Council
Directive 64/221/EEC of 25 February 1964 on the co-
ordination of special measures concerning the movement and                    In Case C-202/01, Commission of the European Communities
residence of foreign nationals which are justified on grounds                 (Agents: G. Valero Jordana and J. Adda) v French Republic


title: Case C-282/06: Order of the President of the Court of 26 February 2007 (reference for a preliminary ruling from the Krajský Soud v Praze — Czech Republic) — Ochranný svaz autorský pro práva k dílům hudebním (OSA) v Miloslav Lev

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/35

         Order of the President of the Court of 26 February 2007 (reference for a preliminary ruling from the Krajský Soud v Praze — Czech Republic) — Ochranný svaz autorský pro práva k dílům hudebním (OSA) v Miloslav Lev
   (Case C-282/06) (1)

   (2007/C 95/70)

      Language of the case: Czech

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

      (1)  OJ C 212, 2.9.2006.


title: Case T-552/12: Judgment of the General Court of 12 November 2013 — North Drilling v Council (Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Error of fact — Temporal adjustment of the effects of an annulment)

text:
               21.12.2013

               EN

               Official Journal of the European Union

               C 377/14

         Judgment of the General Court of 12 November 2013 — North Drilling v Council
   (Case T-552/12) (1)

   (Common foreign and security policy - Restrictive measures against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Error of fact - Temporal adjustment of the effects of an annulment)
   2013/C 377/33
   Language of the case: Spanish

      Parties

      Applicant: North Drilling Co. (Teheran, Iran) (represented by: J. Viñals Camallonga, L. Barriola Urruticoechea and J. Iriarte Ángel, lawyers)

      Defendant: Council of the European Union (represented by: M. Bishop and A. De Elera, acting as Agents)

      Re:

   Application for annulment, first, of Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58), and, secondly, of Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16), in so far as those measures affect the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran in so far as it included the name of North Drilling Co. in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP;

               2.

               Annuls Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran in so far as it included the name of North Drilling in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010;

               3.

               Annuls Annex IX to Regulation No 267/2012 in so far as it concerns North Drilling;

               4.

               Orders the effects of Decision 2010/413, as amended by Decision 2012/635, to be maintained as regards North Drilling from its entry into force, on the twentieth day following its publication in the Official Journal of the European Union, until the partial annulment of Regulation No 267/2012 takes effect;

               5.

               Orders the Council of the European Union to bear its own costs and to pay those incurred by North Drilling in the present proceedings and in the proceedings for interim measures.

      (1)  OJ C 46, 16.2.2013.


title: Case C-156/09: Judgment of the Court (First Chamber) of 18 November 2010 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Leverkusen v Verigen Transplantation Service International AG (Sixth VAT Directive — Article 13(A)(1)(c) — Exemptions for activities in the public interest — Provision of medical care — Removal and multiplication of cartilage cells for the purpose of reimplantation in the patient)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/8

         Judgment of the Court (First Chamber) of 18 November 2010 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Leverkusen v Verigen Transplantation Service International AG
   (Case C-156/09) (1)

   (Sixth VAT Directive - Article 13(A)(1)(c) - Exemptions for activities in the public interest - Provision of medical care - Removal and multiplication of cartilage cells for the purpose of reimplantation in the patient)
   2011/C 13/12
   Language of the case: German

      Referring court

   Bundesfinanzhof — Germany

      Parties to the main proceedings

      Applicant: Finanzamt Leverkusen

      Defendant: Verigen Transplantation Service International AG

      Re:

   Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 13A(1)(c) and the first paragraph of Article 28bF of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Removal of joint cartilage cells from cartilage material taken from a human being by persons established in other Member States and subsequent multiplication of those cells with a view to their being implanted in a patient by the same persons — Determination of the place where services are supplied — Exemption of those services as ‘the provision of medical care in the exercise of the medical and paramedical professions’

      Operative part of the judgment

   Article 13(A)(1)(c) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that the removal of joint cartilage cells from cartilage material taken from a human being and the subsequent multiplication of those cells for reimplantation for therapeutic purposes constitute ‘provision of medical care’ in accordance with that provision.

      (1)  OJ C 180, 01.08.2009.


title: Case C-71/04: Reference for a preliminary ruling by the Tribunal Supremo, Contentious-Administrative Chamber, Third Division, by order of that Court of 22 December 2003, rectified by order of 22 January 2004, in the case of Administración del Estado against Junta de Galicia

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/23

         Reference for a preliminary ruling by the Tribunal Supremo, Contentious-Administrative Chamber, Third Division, by order of that Court of 22 December 2003, rectified by order of 22 January 2004, in the case of Administración del Estado against Junta de Galicia
   (Case C-71/04)
   (2004/C 94/49)
   Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Supremo (Supreme Court), Contentious-Administrative Chamber, Third Division, of 22 December 2003, rectified by order of 22 January 2004, received at the Court Registry on 16 February 2004, for a preliminary ruling in the case of Administración del Estado against Junta de Galicia on the following question:
   Do Article 87(1) and (3)(c) and (d) (previously Article 92(1) and (3)(c) and (d)) and Article 88(3) (previously Article 93(3)) of the EC Treaty, in conjunction with Council Directive 90/684/EEC of 21 December 1990 (1) on aid to shipbuilding, permit the adoption, without prior notification to the Commission of the European Communities, of national rules – of the kind contained in Decree 217/1994 of 23 June 1994 of the Xunta de Galicia – which establish a ‘new system of aid’ for a specific shipbuilding and ship conversion sector, being precisely that sector which, by virtue of the gross tonnage, power and other characteristics of the vessels concerned, does not fall within the scope of the said Directive 90/684?

      (1)  OJ L 380 of 31.12.1990, p. 27.


title: Case T-242/06: Judgment of the Court of First Instance of 13 December 2007 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (el charcutero artesano) (Community trade mark — Opposition proceedings — Application for the Community figurative mark el charcutero artesano — Earlier national figurative mark El Charcutero — Relative ground for refusal — No likelihood of confusion — Absence of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/45

         Judgment of the Court of First Instance of 13 December 2007 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (el charcutero artesano)
   (Case T-242/06) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark el charcutero artesano - Earlier national figurative mark El Charcutero - Relative ground for refusal - No likelihood of confusion - Absence of similarity between the signs - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2008/C 22/83)
   Language of the case: Spanish
   Parties

      Applicant: Miguel Cabrera Sánchez (Móstoles, Spain) (represented by: J. Calderón Chavero and T. Villate Consonni, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. García Murillo, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Industrias Cárnicas Valle, SA (Madrid, Spain)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 15 June 2006 (Case R 790/2005-1) relating to opposition proceedings between Miguel Cabrera Sánchez and Industrias Cárnicas Valle, SA.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Miguel Cabrera Sánchez to bear his own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 261, 28.10.2006.


title: Case T-628/14: Judgment of the General Court of 3 December 2015 — Hewlett Packard Development Company v OHIM (FORTIFY) (Community trade mark — Application for Community word mark FORTIFY — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/50

         Judgment of the General Court of 3 December 2015 — Hewlett Packard Development Company v OHIM (FORTIFY)
   (Case T-628/14) (1)

   ((Community trade mark - Application for Community word mark FORTIFY - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2016/C 027/63)
   Language of the case: English

      Parties

      Applicant: Hewlett Packard Development Company LP (Dallas, Texas, United States) (represented by: T. Raab and H. Lauf, lawyers)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 3 June 2014 (Case R 249/2014-2), concerning an application for registration of the word sign FORTIFY as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Hewlett Packard Development Company LP to bear its own costs and to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 361, 13.10.2014.