title: Case T-174/06: Order of the Court of First Instance of 4 September 2009 — Inalca and Cremonini v Commission (Non-contractual liability — OLAF investigations concerning irregularities in export refunds on beef and veal exported to Jordan — Communication to the national authorities of information on the facts capable of giving rise to criminal proceedings — National decision to recover the refunds — Provision of Guarantees — Action for damages — Limitation period — Continuing nature of the harm — Partial inadmissibility — Causation)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/26

         Order of the Court of First Instance of 4 September 2009 — Inalca and Cremonini v Commission
   (Case T-174/06) (1)

   (Non-contractual liability - OLAF investigations concerning irregularities in export refunds on beef and veal exported to Jordan - Communication to the national authorities of information on the facts capable of giving rise to criminal proceedings - National decision to recover the refunds - Provision of Guarantees - Action for damages - Limitation period - Continuing nature of the harm - Partial inadmissibility - Causation)
   2009/C 256/48
   Language of the case: Italian

      Parties

      Applicant: Inalca SpA — Industria Alimentaria Carni (Castelvetro, Italy) and Cremonini SpA (Castelvetro) (represented by: F. Sciandone and C. D’Andria, lawyers)

      Defendant: Commission of the European Communities (represented by: M. Nolin and V. Di Bucci, Agents)

      Re:

   Action for non-contractual damages seeking compensation for loss allegedly suffered by the applicants as a result of the communication to the Italian authorities of the findings of an investigation conducted by the European Anti-Fraud Office (OLAF), implicating the applicants, to ascertain whether certain refunds for beef and veal exported to Jordan were lawful.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Inalca SpA — Industria Alimentaria Carni and Cremonini SpA are ordered to pay the costs.

      (1)  OJ C 190, 12.8.2006.


title: Case C-11/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 January 2011 — Société Air France S.A. v Heinz-Gerke Folkerts and Luz-Tereza Folkerts

text:
               26.3.2011

               EN

               Official Journal of the European Union

               C 95/5

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 January 2011 — Société Air France S.A. v Heinz-Gerke Folkerts and Luz-Tereza Folkerts
   (Case C-11/11)
   2011/C 95/07
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Société Air France S.A.

      Defendant: Heinz-Gerke Folkerts, Luz-Tereza Folkerts

      Questions referred

               1.

               Does a passenger have a right to compensation under Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, (1) in the case where departure was delayed for a period which is below the limits specified in Article 6(1) of that regulation, but arrival at the final destination was at least three hours later than the scheduled arrival time?

               2.

               If the first question is answered in the negative:
               For the purpose of determining whether there was a delay, within the terms of Article 6(1) of Regulation No 261/2004, in the case of a flight consisting of several stages, should reference be made to the individual stages or to the distance to the final destination?

      (1)  OJ 2004 L 46, p. 1.


title: Case F-11/08: Action brought on 25 January 2008 — Jörg Mölling v Europol

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/51

         Action brought on 25 January 2008 — Jörg Mölling v Europol
   (Case F-11/08)
   (2008/C 92/104)
   Language of the case: Dutch
   Parties

      Applicant: Jörg Mölling (The Hague, Netherlands) (represented by: P. de Casparis, lawyer)

      Defendant: Europol
   The subject-matter and description of the proceedings
   Annulment of Europol's decision of 10 October 2007 refusing the applicant permission to participate in the selection procedure for the position of ‘first officer’ in the drugs unit and the decision of 23 October 2007 rejecting his complaint.
   Form of order sought
   The applicant claims that the Tribunal should:

               —

               annul Europol's decision of 10 October 2007 refusing him permission to participate in the selection procedure for the position of ‘first officer’ in the drugs unit and the decision of 23 October 2007 rejecting his complaint;

               —

               order Europol to pay the costs.


title: Case T-18/12: Order of the General Court of 2 April 2014 — Interbev v Commission (State aid — Measures taken by Interbev — Financing by voluntary contributions made mandatory — Decision declaring the aid scheme compatible with the internal market — Withdrawal of the decision — No need to adjudicate)

text:
               16.6.2014

               EN

               Official Journal of the European Union

               C 184/28

         Order of the General Court of 2 April 2014 — Interbev v Commission
   (Case T-18/12) (1)

   ((State aid - Measures taken by Interbev - Financing by voluntary contributions made mandatory - Decision declaring the aid scheme compatible with the internal market - Withdrawal of the decision - No need to adjudicate))
   2014/C 184/49
   Language of the case: French

      Parties

      Applicant: Association nationale interprofessionnelle du bétail et des viandes (Interbev) (Paris, France) (represented by: P. Morrier and A. Bouviala, lawyers)

      Defendant: European Commission (represented by: initially B. Stromsky and S. Thomas, then B. Stromsky, Agents)

      Re:

   Application for annulment of Commission Decision 2012/131/EU of 13 July 2011 on levies for Interbev (OJ 2012 L 59, p. 14).

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               The European Commission is ordered to pay the costs.

      (1)  OJ C 80, 17.3.2012.


title: Case C-95/09: Action brought on 6 March 2009 — Commission of the European Communities v Ireland

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/25

         Action brought on 06 March 2009 — Commission of the European Communities v Ireland
   (Case C-95/09)
   2009/C 113/48
   Language of the case: English

      Parties

      Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán, A.A. Gilly, Agents)

      Defendant: Ireland

      The applicant claims that the Court should:

   declare that,

               —

               by failing to fully and correctly identify sensitive areas for the purposes of Article 5(1) of Council Directive (1) 91/271/EEC of 21 May 1991 concerning urban waste water treatment;

               —

               by failing to fully and correctly transpose the requirements of Articles 3(1), 3(2), 5(2),5(3),5(4) and 5(5) of that Directive in respect of certain sensitive areas;

               —

               by failing by the required deadline of 31 December 1998 to provide the level of
               treatment referred to in Article 5(2) and (3) of that Directive in respect of all urban waste water from certain agglomerations exceeding 10,000 population equivalent discharged into or into the relevant catchment areas of sensitive areas;

               —

               by failing for certain agglomerations to ensure that the collecting system required under Article 3(1) of that Directive complies with the requirements of Article 3(2) of that Directive; and

               —

               by failing to correctly carry out the first mandatory review referred to in Article 5(6) of that Directive by the required deadline of 31 December 1997, Ireland has failed to comply with its obligations under these articles as well as those under Article 19 of the Directive and

               —

               by failing to provide information requested in the letter dated 23 April 1999, Ireland has failed to comply with the obligations that it has under Article 10 of the EC Treaty.

               —

               order Ireland to pay the costs.

      Pleas in law and main arguments

   The Commission considers that Ireland has failed to comply with its obligations under Arts. 3, 5 and 19 of the Directive and under Art. 10 of the EC Treaty for the following reasons:
   As regards the Boyne Estuary the Commission contends that, by failing to notify a formal act of identification for this area, Ireland has failed to fully and correctly identify sensitive areas in accordance with Art. 5(1) of the Directive. As regards other areas which have not been identified as sensitive the Commission accepts that Ireland has made identifications for the purposes of Art. 5(1) but contends that the currently applicable formal acts of identification are insufficiently precise in terms of demarcating the sensitive area concerned.
   As regards Arts. 3(1) and (2) of the Directive Irish legislation provides for a deferment of the implementation deadline referred to in the second paragraph of Art. 3(1) from 31/12/1998 to 14/06/2001. The Commission maintains that the Directive does not provide for such a possible deferment. The Commission also notes that, for 32 areas which Ireland subsequently identified as sensitive, the national legislation failed to respect the deadline of 31/12/1998 referred to in Art. 5 of the Directive.
   The Commission contends that, in relation to areas which Ireland had wrongly failed to identify as sensitive, Ireland has failed to comply practically with the provisions of Art. 3(1) and (2) and Art. 5 (2), (3) and (4) in respect of agglomerations of more than 10 000 population equivalent, and with the provisions of Art. 5 (2), (3) and (4) in respect of urban waste water treatment plants coming within the scope of Art. 5(5) of the Directive.
   The Commission considers that Ireland is in breach of Art. 5(6) of the Directive because it had not carried out the first review of the identification of sensitive areas required by 31/12/1997 at the latest.
   Finally the Commission considers that, in failing to provide clear cartographical information showing the extent of sensitive areas and relevant catchment areas as well as the location of agglomerations concerned by the deadline of 31/12/1998 Ireland is in breach of its duties under Art. 10 of the EC Treaty.

      (1)  Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment OJ L 135, p. 40


title: JUDGMENT OF THE COURT (Sixth Chamber) of 24 October 1996 in Case C-73/95 P: Viho Europe BV v. Commission of the European Communities, supported by Parker Pen Ltd (Competition - Groups of companies - Article 85 (1) of the EC Treaty)

text:
 No C 9/6               LIN                   Official Journal of the European Communities                                       11 . . 97
  1 . The expression 'canalization and flood-relief works ' in                          JUDGMENT OF THE COURT
       point 10 (e) of Annex II to Council Directive 85/337/                                       ( Sixth Chamber )
       EEC of 27 June 1985 on the assessment of the effects
       of certain public and private projects on the                                           of 24 October 1996
       environment must be interpreted as including certain              in Case C-73/95 P: Viho Europe BV v. Commission of the
       types of work on a dyke running alongside waterways.                European Communities, supported by Parker Pen Ltd ( 1 )
                                                                          (Competition — Groups of companies — Article 85 (1 ) of
                                                                                the EC Treaty)
 2 . The expression 'canalization and flood-relief works ' in                                          ( 97/C 9/10 )
       point 10 (e) of Annex II to Directive 85/337/EEC is to
       be interpreted as including not only construction of a
       new dyke but also modification of an existing dyke                                 (Language of the case: French)
       involving its relocation, reinforcement or widening,
       replacement of a dyke by constructing a new dyke in                  (Provisional translation; the definitive translation will be
       situ, whether or not the new dyke is stronger or wider                      published in the European Court Reports)
       than the old one, or a combination of such works.
                                                                         In Case C-73/95 P: Viho Europe BV (Agent: Werner
                                                                         Kleinmann ) — appeal against the judgment of the Court
                                                                         of First Instance of the European Communities ( First
 3 ) — Article 4 (2) of Directive 85/337/EEC and
                                                                         Chamber ) of 12 January 1995 in Case T-102/92 Viho v.
           point 10 (e) of Annex II must be interpreted as
                                                                         Commission [ 1995] ECR 11-17, seeking to have that
           meaning that a Member State which establishes the
                                                                         judgment set aside, the other party to the proceedings
           criteria or thresholds necessary to classify projects
                                                                         being Commission of the European Communities ( Agent:
           relating to dykes at a level such that, in practice,
                                                                         Bernd Langeheine ), supported by Parker Pen Ltd, — the
           all such projects are exempted in advance from the
                                                                         Court ( Sixth Chamber), composed of: G. F. Mancini,
           requirement of an impact assessment exceeds the               President of the Chamber, C. N. Kakouris and H.
           limits of its discretion within the meaning of
                                                                         Ragnemalm ( Rapporteur), Judges; C. O. Lenz, Advocate
           Articles 2 (1 ) and 4 (2) of the Directive unless all
                                                                         General; R. Grass, Registrar, has given a judgment on
           projects excluded could, when viewed as a whole,              24 October 1996, in which it:
           be regarded as not being likely to have significant
           effects on the environment.
                                                                         1 . Dismisses the appeal.
       — Where under national law a court must or may                    2 . Orders the appellant to pay the costs.
           raise of its own motion pleas in law based on a
           binding national rule which have not been put                 (!) OJ No C 137, 3 . 6 . 1995 , p . 10 .
           forward by the parties, it must, for matters within
           its jurisdiction, examine of its own motion
           whether the legislative or administrative
           authorities of the Member State have remained
           within the limits of their discretion within the
           meaning of Articles 2 (1 ) and 4 (2) of the
                                                                                JUDGMENT OF THE COURT
           Directive, and take account thereof when
           examining the action for annulment.                                                    ( Sixth Chamber)
                                                                                of 24 October 1996
                                                                        in     Case   C-76/95 : Commission of the European
      — Where that discretion has been exceeded and
                                                                                Communities v. Royale Beige SA ( J )
           consequently the national provisions must be set
           aside in that respect, it is for the authorities of the       (Officials — Insurance against accidents and occupational
           Member State, according to their respective                                                   diseases)
           powers, to take all the general or particular                                              ( 97/C 9/11 )
           measures necessary to ensure that projects are
           examined in order to determine whether they are
           likely to have significant effects on the                                     (Language of the case: French)
           environment and, if so, to ensure that they are
           subject to an impact assessment.                                (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
0 ) OJ No C 119 , 13 . 5 . 1995 , p . 8 .
( 2 ) OJ No L 175 , 5 . 7. 1985 , p. 40 .                               In Case C-76/95 : Commission of the European
                                                                        Communities ( Agents: Julian Currall, assisted by Jean-Luc
                                                                        Fagnart) v. Royale Beige SA ( Counsel: Francois van der
                                                                        Mensbrugghe ) — application for an order that the insurers
                                                                        pay the Commission the lump sum allegedly due from the


title: Case T-220/15: Order of the General Court of 7 June 2016 — Beele Engineering v EUIPO (WE CARE) (EU trade mark — Application for the EU figurative mark WE CARE — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/27

         Order of the General Court of 7 June 2016 — Beele Engineering v EUIPO (WE CARE)
   (Case T-220/15) (1)

   ((EU trade mark - Application for the EU figurative mark WE CARE - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 279/40)
   Language of the case: English

      Parties

      Applicant: Beele Engineering BV (Aalten, the Netherlands) (represented by: M. Ring, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: H. O’Neill, acting as Agent)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 15 January 2015 (Case R 1424/2014-5), relating to an application for registration of the figurative sign WE CARE as an EU trade mark.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Beele Engineering BV shall pay the costs.

      (1)  OJ C 228, 13.7.2015.


title: Judgment of the Court (Sixth Chamber) of 20 November 2003 in Case C-416/01 (Reference for a preliminary ruling from the Tribunal Supremo): Sociedad Cooperativa General Agropecuaria (ACOR) v Administración General del Estado, participant: Ebro Puleva SA, formerly Azucarera Ebro Agrícolas SA and Azucareras Reunidas de Jaén SA (Common organisation of the markets in the sugar sector — Reallocation or transfer of quotas — Interpretation of Council Regulations (EEC) No 1785/81, (EEC) No 193/82 and (EC) No 1260/2001 — Decision of competent authorities of a Member State, when approving a merger, to reallocate sugar production quotas — Sale by public auction — Transfer of quotas for consideration)

text:
C 7/14                    EN                           Official Journal of the European Union                                             10.1.2004
                   JUDGMENT OF THE COURT                                             —     attempted to find a new job in the period between the end
                                                                                of the short, fixed-term employment relationship and the
                                                                                time when he took up his studies,
                           (Sixth Chamber)
                                                                                are not relevant in this connection.
                         of 6 November 2003                                    2.    A Community national such as the appellant in the main
                                                                                proceedings, where he has the status of a migrant worker for
in Case C-413/01 (Reference for a preliminary ruling from                            the purposes of Article 48 of the Treaty, is not necessarily
the Verwaltungsgerichtshof): Franca Ninni-Orasche v                                  voluntarily unemployed, within the meaning established by the
 Bundesminister für Wissenschaft, Verkehr und Kunst (1)                              relevant case-law of the Court, solely because his contract of
                                                                                employment, from the outset concluded for a fixed term, has
                                                                                expired.
(Freedom of movement for workers — Article 48 of the EC
Treaty (now, after amendment, Article 39 EC) — Concept of
‘worker’ — Contract of employment of a short term fixed in                     (1) OJ C 84 of 6.4.2002.
advance — Retention of the status of ‘worker’ after end of
employment contract — Conditions for the grant of social
advantages within the meaning of Article 7(2) of Regulation
               (EEC) No 1612/68 — Study finance)
                                                                                JUDGMENT OF THE COURT
                             (2004/C 7/22)
                                                                                (Sixth Chamber)
                     (Language of the case: German)
                                                                                of 20 November 2003
(Provisional translation; the definitive translation will be published         in Case C-416/01 (Reference for a preliminary ruling from
                     in the European Court Reports)                            the Tribunal Supremo): Sociedad Cooperativa General
                                                                               Agropecuaria (ACOR) v Administración General del Esta-
                                                                               do, participant: Ebro Puleva SA, formerly Azucarera Ebro
                                                                                Agrícolas SA and Azucareras Reunidas de Jaén SA (1)
In Case C-413/01: Reference to the Court under Article 234 EC
by the Verwaltungsgerichtshof (Austria) for a preliminary                      (Common organisation of the markets in the sugar sector —
ruling in the proceedings pending before that court between                    Reallocation or transfer of quotas — Interpretation of
Franca Ninni-Orasche and Bundesminister für Wissenschaft,                      Council Regulations (EEC) No 1785/81, (EEC) No 193/82
Verkehr und Kunst, on the interpretation of Article 48 of the                  and (EC) No 1260/2001 — Decision of competent auth-
EC Treaty (now, after amendment, Article 39 EC), the Court                     orities of a Member State, when approving a merger, to
(Sixth Chamber), composed of: J.-P. Puissochet, President of                   reallocate sugar production quotas — Sale by public auction
the Chamber, C. Gulmann, V. Skouris (Rapporteur), F. Macken                                — Transfer of quotas for consideration)
and N. Colneric, Judges; L.A. Geelhoed, Advocate General;
R. Grass, Registrar, has given a judgment on 6 November                                                    (2004/C 7/23)
2003, in which it has ruled:
                                                                                (Language of the case: Spanish)
1.    The fact that a national of a Member State has worked for a
      temporary period of two and a half months in the territory of            (Provisional translation; the definitive translation will be published
      another Member State, of which he is not a national, can confer                              in the European Court Reports)
      on him the status of a worker within the meaning of Article 48
      of the EC Treaty (now, after amendment, Article 39 EC)
      provided that the activity performed as an employed person is            In Case C-416/01: Reference to the Court under Article 234 EC
      not purely marginal and ancillary.                                       by the Tribunal Supremo (Spain) for a preliminary ruling in
                                                                               the proceedings pending before that court between Sociedad
      It is for the national court to carry out the examinations of fact       Cooperativa General Agropecuaria (ACOR) and Administra-
      necessary in order to determine whether that is so in the case           ción General del Estado, participant: Ebro Puleva SA, formerly
      before it. Circumstances preceding and subsequent to the period          Azucarera Ebro Agrícolas SA and Azucareras Reunidas de
      of employment, such as the fact that the person concerned:               Jaén SA, on the interpretation of Council Regulations (EEC)
                                                                               No 1785/81 of 30 June 1981 on the common organisation of
      —      took up the job only some years after his entry into the          the markets in the sugar sector (OJ 1981 L 177, p. 4), (EEC)
             host Member State,                                                No 193/82 of 26 January 1982 laying down general rules for
                                                                               transfers of quotas in the sugar sector (OJ 1982 L 21, p. 3),
      —      shortly after the end of his short, fixed-term employment         and (EC) No 1260/2001 of 19 June 2001 on the common
             relationship, became eligible for entry to university in the      organisation of the markets in the sugar sector (OJ 2001
             host Member State by virtue of having completed his               L 178, p. 1), the Court (Sixth Chamber), composed of:
             schooling in his country of origin, or                            V. Skouris (Rapporteur), acting for the President of the Sixth
 ---pagebreak--- 10.1.2004              EN                           Official Journal of the European Union                                                C 7/15
Chamber, C. Gulmann, J.N. Cunha Rodrigues, J.-P. Puissochet                 teur), F. Macken, N. Colneric and J.N. Cunha Rodrigues, Judges;
and F. Macken, Judges; J. Mischo, Advocate General; H. von                  A. Tizzano, Advocate General; R. Grass, Registrar, has given a
Holstein, Deputy Registrar, has given a judgment on 20 Nov-                 judgment on 6 November 2003, in which it:
ember 2003, in which it has ruled:
                                                                            1.    Dismisses the action.
1.   If, in the exercise of its power of administrative review of a
     merger of undertakings, the competent authority of a Member
     State deems it necessary to redistribute sugar production quotas       2.    Orders the Commission of the European Communities to pay
     among undertakings situated in its territory in order to                     the costs.
     safeguard competition, the provisions of Council Regulation
     (EEC) No 1785/81 of 30 June 1981 on the common
     organisation of the markets in the sugar sector and Council            (1) OJ C 31 of 2.2.2002.
     Regulation (EEC) No 193/82 of 26 January 1982 laying
     down general rules for transfers of quotas in the sugar sector
     preclude that authority from stipulating that such a transfer or
     reallocation of quotas should be for value.
2.   The entry into force of Council Regulation (EC) No 1260/
     2001 of 19 June 2001 on the common organisation of the
     markets in the sugar sector does not alter the interpretation of
                                                                                JUDGMENT OF THE COURT
     Community law.
                                                                                (Fifth Chamber)
(1) OJ C 84 of 6.4.2002.
                                                                                of 6 November 2003
                                                                            in Case C-501/01: Kingdom of the Netherlands v Com-
                                                                                mission of the European Communities (1)
                 JUDGMENT OF THE COURT
                                                                            (Commission Decision 2001/739/EC of 17 October 2001 on
                                                                            the total amount of Community aid for the eradication of
                         (Sixth Chamber)
                                                                                classical swine fever in the Netherlands in 1998)
                      of 6 November 2003
                                                                                (2004/C 7/25)
in Case C-434/01: Commission of the European Communi-
ties v United Kingdom of Great Britain and Northern                                             (Language of the case: Dutch)
                             Ireland (1)
                                                                            (Provisional translation; the definitive translation will be published
(Failure of a Member State to fulfil obligations — Directive                                   in the European Court Reports)
92/43/EEC — Conservation of natural habitats — Wild
                          fauna and flora)
                           (2004/C 7/24)                                    In Case C-501/01, Kingdom of the Netherlands (Agents:
                                                                            H. G. Sevenster, C. Wissels and J. G. M. van Bakel) v
                   (Language of the case: English)                          Commission of the European Communities (Agent: T. van
                                                                            Rijn): Application for annulment of Commission Decision
                                                                            2001/739/EC of 17 October 2001 on the total amount of
                                                                            Community aid for the eradication of classical swine fever in
In Case C-434/01, Commission of the European Communities                    the Netherlands in 1998 (OJ 2001 L 277, p. 28), in so far as
(Agent: R. Wainwright) v United Kingdom of Great Britain and                the determination of the total amount of Community financial
Northern Ireland (Agents: G. Amodeo and K. Manji, assisted                  aid for the eradication of classical swine fever in the Nether-
by D. Anderson): Application for a declaration that, by not                 lands in 1998 provides for a reduction of 25 % of the
ensuring observance in its territory of Articles 12 and 16                  compensation paid to farmers, the Court (Fifth Chamber),
of Council Directive 92/43/EEC of 21 May 1992 on the                        composed of: C.W.A. Timmermans, President of the Fourth
conservation of natural habitats and of wild fauna and flora                Chamber, acting as President of the Fifth Chamber,
(OJ 1992 L 206, p. 7), the United Kingdom of Great Britain                  D.A.O. Edward (Rapporteur) and S. von Bahr, Judges; C. Stix-
and Northern Ireland has failed to fulfil its obligations under             Hackl, Advocate General; M.-F. Contet, Principal Adminis-
that directive, the Court (Sixth Chamber), composed of: J.-                 trator, for the Registrar, has given a judgment on 6 November
P. Puissochet, President of the Chamber, C. Gulmann (Rappor-                2003, in which it:


title: Action brought on 28 November 1996 by Giorgio Lebedef against the Commission of the European Communities (Case T-192/96)

text:
No C 54/26           EN                   Official Journal of the European Communities                                    22 . 2 . 97
Action brought on 28 November 1996 by Giorgio Lebedef                rules on the composition and functioning of the Staff
   against the Commission of the European Communities                Committee ( participation in ballots, arrangements for the
                       ( Case T- 192/96 )                            expression of voting intentions ).
                          ( 97/C 54/42 )                             The applicant considers that the decision amending the
                                                                     Rules of the Staff Committee, Luxembourg section, should
               (Language of the case: French)                        therefore have been annulled by the appointing authority.
                                                                     It is apparent from Article 9 ( 2 ) of the Staff Regulations of
An action against the Commission of the European                     Officials and , generally, from the organizational powers
Communities was brought before the Court of First                    exercised by each institution within its own sphere of
Instance of the European Communities on 28 November                  competence, and also from its duty to ensure that its
 1996 by Giorgio Lebedef, residing at Senningerberg                  officials are able freely to appoint their representatives in
( Luxembourg), represented by Gilles Bouneou, of the                 compliance with democratic rules, that the institutions are
Luxembourg Bar, with an address for service in                       not only entitled to intervene on their own initiative where
Luxembourg at his Chambers, 15 avenue du Bois.                       they have doubts as to the regularity of elections to the
                                                                     Staff Committee but are in fact obliged to determine
The applicant claims that the Court should :                         complaints addressed to them in that regard. However, the
                                                                     Commission rejected the complaint lodged by the
— annul, wholly or in part, the general meeting of staff             applicant and thus refrained from taking the measures
    held in Luxembourg on 5 December 1995 , or                       required by the applicable provisions.
    alternatively rule that that meeting has not been
    concluded,
— annul , wholly or in part, the decision amending the
    Rules of the Staff Committee, Luxembourg section,
    adopted by the general meeting of staff of the                   Action brought on 27 November 1996 by Spyridoula
    Commission on 5 December 1995 , together with all                Alexopoulou against the Commission of the European
                                                                                Communities
    measures taken pursuant to that decision,
                                                                                ( Case T-195 /96 )
— annul all subsequent measures taken pursuant to those                                        ( 97/C 54/43 )
    Rules,
                                                                                (Language of the case: French)
— annul, in so far as may be necessary, the refusal
    contained in the decision of 28 August 1996,                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
— order the Commission to pay all the costs .                        Instance of the European Communities on 27 November
                                                                     1996 by Spyridoula Alexopoulou , residing in Brussels ,
Pleas in law and main arguments adduced in support:                  represented by Constantin Nikis, of the Brussels Bar, with
                                                                     an address for service in Luxembourg at the chambers of
                                                                     Louis Schiltz, 2 rue du Fort Rheinsheim .
The applicant, a member of the trade union 'Action &
Defense — Luxembourg', contests the way in which the
general meeting in issue was conducted and the decision              The applicant claims that the Court should :
amending the Rules of the Staff Committee; he challenges
the Commission 's refusal to intervene, as characterized in          — annul the decision of the appointing authority of
the decision rejecting the complaint lodged by him . In                   8 January 1996 classifying the applicant in grade A7,
support of his application, he pleads infringement of                     step 5 , and implicitly refusing to appoint her to
Article 9 of the Staff Regulations of Officials and Annex II              grade A6 ,
thereto, and of Convention No 151 of 7 June 1978
concerning protection of the right to organize and                   — pay her the sum of BRF 250 000, subject to increase
procedures for determining conditions of employment in                    or decrease during the course of the proceedings, as
the public service, as well as the rules on the composition               compensation for the damage suffered as a result of
and functioning of the Staff committee adopted by the                     the loss of her chances of promotion to grade A5 ,
Commission on 27 April 1988 in the course of its 916th
meeting.                                                             — order the Commission to pay all the costs .
He maintains, first, that the general meeting was irregular          Pleas in law and main arguments adduced in support:
in several procedural respects and marked by a flagrant
disregard of the ethical rules concerning the holding of             The applicant, who was also the applicant in Case T-17/
meetings, and, second, that the electoral system prescribed          95 Alexopoulou v. Commission, disposed of by judgment
in the new Rules is unclear and lacking in transparency,             of 5     October    1995 ('), contests the refusal      of the
discriminates   between      electors on the  one   hand   and       appointing authority to appoint her to grade A6 . In her
candidates on the other, contains lacunae and breaches the           view, that refusal cannot constitute valid compliance with
fundamental principles of democratic elections ( secret              the said judgment, in which an initial decision classifying
ballots, equality of opportunity ) and the Commission                her in grade A7 was annulled .


title: Case F-8/06: Action brought on  3 February 2006  — Tolios and Others v Court of Auditors

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/35

         Action brought on 3 February 2006 — Tolios and Others v Court of Auditors
   (Case F-8/06)
   (2006/C 74/68)
   Language of the case: French
   Parties

      Applicants: Iraklis Tolios (Paris, France), François Muller (Strasbourg, France) and Odette Perron (La Rochelle, France) (represented by: G. Vandersanden and L. Levi, lawyers)

      Defendant: Court of Auditors
   Form of order sought
   The applicants claim that the Court should:

               —

               declare the action admissible and well founded, including the objection of illegality contained therein;

               —

               in consequence, annul the applicants' pension slips for March 2005, the effect of which will be to apply a weighting at the level of the capital of their country of residence or, at the very least, a weighting capable of adequately reflecting the differences in the cost of living in the places where the applicants are deemed to incur their expenditure and therefore consistent with the principle of equivalence;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicants in the present case are all officials who retired before 1 May 2004. They contest the transitional regime put in place, pending the abolition of weightings, by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (1), in so far as that regime is based on new ‘pension’ weightings which are no longer calculated by reference to the capital but according to the average cost of living in the Member State in which the pensioner shows that he has established his principal residence.
   In support of their claims, the applicants maintain, first of all, that the regulation is based on incorrect reasoning, in so far as neither the deepened integration of the Community, nor freedom of movement and residence, nor the difficulty in monitoring the actual place of residence of pensioners can serve as a basis for the transitional regime in question.
   The applicants further maintain that there has been a breach in the present case of the principles of equal treatment, legal certainty, the retroactivity of acquired rights and the protection of legitimate expectations.

      (1)  OJEU 2004 L 124 of 27.04.2004, p. 1.


title: Action brought on 29 September 1995 by the Commission of the European Communities against the Council of the European Union (Case C-309/95)

text:
25 . 11 . 95           EN                   Official Journal of the European Communities                                     No C 315/9
     of the judgment by persons who have not brought legal             Action brought on 29 September 1995 by the Commission
     proceedings or made an equivalent claim prior to that             of the European Communities against the Council of the
     date.                                                                                European Union
                                                                                ( Case C-309/95 )
(') OJ No C 202 , 23 . 7. 1994 .                                                                ( 95/C 315/ 17 )
                                                                       An action against the Council of the European Union was
                                                                       brought before the Court of Justice of the European
                                                                       Communities on 29 September 1 995 by the Commission of
                                                                       the European Communities, represented by Gerard Rozet
                                                                       and Jean-Paul Keppenne, acting as Agents, with an address
                                                                       for service in Luxembourg at the office of Carlos Gomez de
                  ORDER OF THE COURT
                                                                       la Cruz, Wagner Centre, Kirchberg.
                       ( Second Chamber)
                                                                       The applicant claims that the Court should :
                      of 17 October 1995                               — annul the Council 's decision of 22 June 1995 on the
in Case C-62/94 P: Mariette Turner v. Commission of the                    granting of exceptional aid to producers of table wine in
                  European Communities ( 1 )                               France ,
(Official — Compulsory reassignment — Non-material
damage — Claim for compensation — Appeal manifestly                    — order the Council to pay the coses .
                 inadmissible and unfounded)
                           ( 95/C 315/ 16 )                            Pleas in law and main arguments adduced in support:
                                                                       — Misapplication of the third subparagraph of Article
                (Language of the case: French)                             93 ( 2 ) of the EC Treaty; abuse of process; lack of
                                                                           competence .
(Provisional translation; the definitive translation will be               The Council is not empowered to take decisions — on
          published in the European Court Reports)                         the basis of the third subparagraph of Article 93 ( 2 )
                                                                           which was extended to certain agriculturl products by a
                                                                           Regulation on the common organization of the relevant
In Case C-62/94 P : Mariette Turner, a former official of the              markets — derogating from provisions which are of
Commission of the European Communities, residing in                        central importance to the machinery for the common
Brussels , represented by Georges Vandersanden, of the                     organization of the market ( COM ), where the effect of
Brussels Bar, with an address for service in Luxembourg at                 those decisions is to impair the proper operation of the
the office of Fiduciaire Myson, 1 Rue Glesener — appeal                    principal mechanisms of the COM . State aid which
against the judgment of the Court of First Instance of the                 causes the purchase price of table wines delivered for
European Communities ( Fifth Chamber ) of 16 December                      preventive distillation to rise to the level of market prices
 1993 in Case T-80/92 Turner v. Commission ( 1993 ) ECR                    not only distorts competition between producers within
11-1465 , seeking to have that judgment set aside, the other               the meaning of Article 92 ( 1 ), but it lends greater support
party to the proceedings being Commission of the European                  to prices than that expressly envisaged by the COM and
Communities ( Agents: Gianluigi Valsesia and Denis                         counters the dissuasive effect expressly mentioned in the
Waelbroeck ) — the Court, composed of: G. Hirsch                           preamble to the basic Regulation, which is necessary to
 ( Rapporteur ), President of the Chamber, G. F. Mancini and               enable production to be controlled, and at the same time
F. A. Schockweiler, Judges; G. Cosmas, Advocate-General;                   makes the Commission 's management task impossible
R. Grass , Registrar, made an order on 17 October 1995 , the               to carry out .
 operative part of which is as follows:
                                                                           If the Council wished to change the common
                                                                           organization of the market in wine in order to obtain the
 1 . The appeal is dismissed.                                              result sought, it should have followed the procedural
                                                                           rules laid down by Article 43 ( 2 ) and ( 3 ) of the EC Treaty
                                                                           which ensure compliance with the institutional balance
 2 . Mrs Turner is ordered to pay the costs of these                       established by the Treaty . Consequently, the contested
     proceedings.                                                          decision is vitiated by lack of competence .
 (') OJ No C 103 , 11 . 4 . 1994 .                                          ( By way of subsidiary pleas )
                                                                        — Absence of 'exceptional circumstances' within the
                                                                            meaning of the third subparagraph of Article 93 ( 2 ) of
 ---pagebreak--- No C 315/ 10            EN                    Official Journal of the European Communities                                    25 . 11 . 95
      the Treaty: the low production of table wine in the                 Directive 92/50/EEC ( ) of 18 June 1992 relating to the
      Community in the 1994/95 wine-growing year has led to               coordination of procedures for the award of public service
      a market situation which is generally satisfactory and , in         contracts into its national law .
      particular, to quite favourable prices, which should raise
      the income of wine growers . As regards the attempts on             (') OJ No L 209 , 24 . 7 . 1992 , p . 1 .
      the part of French wine growers to curtail the
      production of table wine, the Commission points out
      that those attempts have been supported by the
      Community, in particular through the measures laid
      down by Council Directive 78/627/EEC ( ] ) on the
      programme to accelerate the restructuring and
      conversion of vineyards in certain Mediterranean
      regions in France and those laid down by Council                   Action brought on 3 October 1995 by the Commission of
      Regulation ( EEC ) No 458/80 ( 2 ) on collective projects          the European Communities against the Grand Duchy of
      for the restructuring of vineyards .                                                            Luxembourg
                                                                                ( Case C-3 12/95 )
— Insufficient and erroneous statement of reasons .                                                  ( 95/C 315/ 19 )
(') OJ No L 206 , 29 . 7 . 1978 , p . 1 .                                An action against the Grand Duchy of Luxembourg was
( 2 ) OJ No L 57, 29 . 2 . 1980 , p . 27 .                               brought before the Court of Justice of the European
                                                                         Communities on 3 October 1995 by the Commission of the
                                                                         European Communities, represented by Frank Benyon,
                                                                         Legal Adviser, acting as Agent, with an address for service in
                                                                         Luxembourg at the office of Carlos Gomez de la Cruz,
                                                                         Wagner Centre , Kirchberg.
                                                                         The Commission of the European Communities claims that
Action brought on 2 October 1995 by the Commission of                    the Court should :
the European Communities against the Hellenic Republic
                          ( Case C-3 11 /95 )
                                                                          1 . Declare that, by failing within the prescribed period
                            ( 95/C 315/18 )                                    to adopt all the measures necessary in order to comply
                                                                               with Council Directives 90/219/EEC of 23 April 1990
                                                                               on the contained use of genetically modified
An action against the Hellenic Republic was brought before                     micro-organisms (') and 90/220/EEC of 23 April 1990
the Court of Justice on 2 October 1995 by the Commission                       on the deliberate release into the environment of
of the European Communities, represented by Dimitrios                          genetically modified organisms ( 2 ), the Grand Duchy of
Gouloussis , Legal Advisor, with an address for service in                     Luxembourg has failed to fulfil its obligations under
Luxembourg at the office of Carlos Gomez de la Cruz, of the                    Articles 22 and 23 of Directives 90/219/EEC and
Commission 's Legal Service, Wagner Centre, Kirchberg.                         90/220/EEC respectively and Articles 5 and 189 of the
                                                                               EC Treaty .
The applicant claims that the Court should :
                                                                        2 . Order the Grand Duchy of Luxembourg to pay the
                                                                               costs .
1 . Declare that, by failing to bring into force and, in the
      alternative, to communicate to the Commission, the
      laws , regulations and administrative provisions                  Pleas in law and main arguments adduced in support:
      necessary to comply fully with Council Directive
      92/50/EEC of 18 June 1992 relating to the coordination            The mandatory nature of the provisions of the third
      of procedures for the award of public service contracts ,         paragraph of Article 189 and of the first paragraph of
      the Hellenic Republic has failed to fulfil its obligations        Article 5 of the EC Treaty is such as to oblige Member States
      under the EC Treaty .                                             to whom directives are addressed to adopt the measures
                                                                        necessary for the implementation of such directives within
2 . Order the Hellenic Republic to pay the costs .                      the time limit prescribed therein . The time limit in question,
                                                                        as regards both the above Directives, expired on 23 October
                                                                         1991 but the Grand Duchy of Luxembourg has not adopted
Pleas in law and main arguments adduced in support:                     the necessary measures .
In this action for failure by a Member State to fulfil its               (') OJ No L 117 , 8 . 5 . 1990 , p . 1 .
Treaty obligations ( Article 169 of the EC Treaty), the                  ( 2 ) OJ No L 117, 8 . 5 . 1990 , p . 15 .
Commission complains that the Hellenic Republic has not
taken, and subsequently not communicated to the
Commission, the measures necessary to transpose Council


title: Case T-13/16: Order of the General Court of 18 July 2017 — Gauff v EUIPO — H.P. Gauff Ingenieure (GAUFF)

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/41

         Order of the General Court of 18 July 2017 — Gauff v EUIPO — H.P. Gauff Ingenieure (GAUFF)
   (Case T-13/16) (1)

   (2017/C 309/55)
   Language of the case: German
   The President of the Fourth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 90, 7.3.2016.


title: Case T-404/10: Action brought on 8 September 2010 — National Lottery Commission v OHIM — Mediatek Italia and De Gregorio (Representation of a hand)

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/32

         Action brought on 8 September 2010 — National Lottery Commission v OHIM — Mediatek Italia and De Gregorio (Representation of a hand)
   (Case T-404/10)
   ()
   2010/C 328/55
   Language in which the application was lodged: English

      Parties

      Applicant: National Lottery Commission (London, United Kingdom) (represented by: B. Brandreth, Barrister)

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

      Other parties to the proceedings before the Board of Appeal: Mediatek Italia Srl (Napoli, Italy), Giuseppe De Gregorio (Napoli, Italy)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 June 2010 in case R 1028/2009-1;

               —

               Remit the case to the Cancellation Division;

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark representing a hand with two crossed fingers and a smiling face for goods and services in classes 9, 16, 25, 28 and 41 — Community trade mark registration No 4800389

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

      Trade mark right of the party requesting the declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) and 53(2)(c) of Council Regulation (EC) No 207/2009

      Decision of the Cancellation Division: Declared the Community trade mark invalid

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: The applicant claims that the contested decision infringes Article 53(2) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in law in its assessment of this article and in its approach to the assessment of the facts, and failed to exercise its powers of investigation. The applicant also considers that the Board of Appeal failed to exercise the full remit of its powers under Article 78 of Council Regulation (EC) No 207/2009.


title: Judgment of the Court of First Instance of 13 December 2004 In Case T-251/02, E v Commission of the European Communities (Officials — Pay — Expatriation allowance — Daily subsistence allowance — Installation allowance — Reimbursement of travel expenses on taking up functions, and removal expenses — Place of recruitment — Articles 4, 5, 7, 9 and 10 of Annex VII to the Staff Regulations — Language of the case: French — In Case T-251/02: E, residing in Brussels (Belgium), represented by G. Vandersanden and L. Levi, lawyers, against Commission of the European Communities (Agent: J. Currall, assisted by D. Waelbroeck, lawyer, with an address for service in Luxembourg))

text:
               19.2.2005

               EN

               Official Journal of the European Union

               C 45/21

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 13 December 2004
   In Case T-251/02, E v Commission of the European Communities (1)

   (Officials - Pay - Expatriation allowance - Daily subsistence allowance - Installation allowance - Reimbursement of travel expenses on taking up functions, and removal expenses - Place of recruitment - Articles 4, 5, 7, 9 and 10 of Annex VII to the Staff Regulations - Language of the case: French - In Case T-251/02: E, residing in Brussels (Belgium), represented by G. Vandersanden and L. Levi, lawyers, against Commission of the European Communities (Agent: J. Currall, assisted by D. Waelbroeck, lawyer, with an address for service in Luxembourg))
   (2005/C 45/48)
   Language of the case: French
   application, first, for annulment of the Appointing Authority's decision of 29 August 2001 fixing the applicant's place of origin and of recruitment as Brussels and refusing to grant her the expatriation allowance, installation allowance, daily subsistence allowance, and travel and removal expenses relating to her taking up her functions and, secondly, payment of compensation and interest for late payment the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 13 December 2004, in which it:

               1.

               Dismisses the action;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 247 of 12.10.2002.


title: Case C-133/12 P: Judgment of the Court (First Chamber) of 27 February 2014 — Stichting Woonlinie, Stichting Allee Wonen, Woningstichting Volksbelang, Stichting WoonInvest, Stichting Woonstede v European Commission (Appeal — State aid — Scheme for aid granted in favour of housing corporations — Compatibility decision — Commitments provided by the national authorities in order to comply with European Union law — Fourth paragraph of Article 263 TFEU — Action for annulment — Conditions governing admissibility — Interest in bringing proceedings — Locus standi — Beneficiaries who are individually and directly concerned — Notion of a ‘closed circle’ )

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/4

         Judgment of the Court (First Chamber) of 27 February 2014 — Stichting Woonlinie, Stichting Allee Wonen, Woningstichting Volksbelang, Stichting WoonInvest, Stichting Woonstede v European Commission
   (Case C-133/12 P) (1)

   ((Appeal - State aid - Scheme for aid granted in favour of housing corporations - Compatibility decision - Commitments provided by the national authorities in order to comply with European Union law - Fourth paragraph of Article 263 TFEU - Action for annulment - Conditions governing admissibility - Interest in bringing proceedings - Locus standi - Beneficiaries who are individually and directly concerned - Notion of a ‘closed circle’))
   2014/C 112/05
   Language of the case: Dutch

      Parties

      Appellants: Stichting Woonlinie, Stichting Allee Wonen, Woningstichting Volksbelang, Stichting WoonInvest, Stichting Woonstede (represented by: P. Glazener and E. Henny, advocaten)

      Other party to the proceedings: European Commission (represented by: H. van Vliet, S. Noë and S. Thomas, Agents)

      Re:

   Appeal brought against the order of the General Court (Seventh Chamber) of 16 December 2011 in Case T-202/10 Stichting Woonlinie and Others v Commission by which the General Court dismissed as inadmissible an application for annulment in part of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 — Netherlands — Existing and special project aid to housing corporations.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the order of the General Court of the European Union of 16 December 2011 in Case T-202/10 Stichting Woonlinie and Others v Commission in so far as it declares inadmissible the action brought by Stichting Woonlinie, Stichting Allee Wonen, Woningstichting Volksbelang, Stichting WoonInvest and Stichting Woonstede for annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid No E 2/2005 and N 642/2009 — The Netherlands — Existing and special project aid to housing corporations, in so far as that decision concerns aid measure E 2/2005;

               2.

               Declares the action for annulment referred to in paragraph 1 of the present operative part to be admissible;

               3.

               Refers the case back to the General Court of the European Union for a decision on the merits concerning the action for annulment referred to in paragraph 1 of the present operative part;

               4.

               Reserves the costs.

      (1)  OJ C 138, 12.5.2012.


title: Case T-457/05: Action brought on  30 December 2005  — Zwicky v Commission

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/46

         Action brought on 30 December 2005 — Zwicky v Commission
   (Case T-457/05)
   (2006/C 60/86)
   Language of the case: German
   Parties

      Applicant: Zwicky & Co. AG (Wallisellen, Switzerland) (represented by: J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               annul Article 1(1) of the decision in so far as it declares that the applicant infringed Article 81 EC and Article 53 of the EEA Agreement as regards Sweden, Norway and Finland, or in the alternative for the period from January 1990 up to and including December 1993;

               —

               annul Article 2 of the decision in so far as it imposes a fine of EUR 0.174 million on the applicant;

               —

               in the alternative, reduce the fine imposed in Article 2 of the decision as appropriate;

               —

               annul Article 3 of the decision as regards the applicant;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant is challenging Commission Decision C(2005) 3452 final of 14 September 2005 in Case 38.337 — PO/Thread (amended by the defendant's decision of 13 October 2005). In the contested decision a fine was imposed on the applicant for infringement of Article 81 EC and Article 53 of the EEA Agreement.
   In support of its application the applicant is relying on six pleas in law.
   First, it alleges infringement of Article 7 of Regulation No 1/2003. (1) In this connection it submits that the finding as to the extent and duration of the infringements in Article 1(1) of the contested decision is incorrect.
   In its second plea in law the applicant submits that there has been an infringement of Article 23(2) of Regulation No 1/2003. It considers that the fine imposed on it exceeds the ten percent of its total turnover in the business year preceding the decision. Consequently the imposition of the fine on the applicant in Article 2 of the contested decision is unlawful.
   Moreover, Article 2 of the defendant's decision infringes Article 15(2) of Regulation No 17/1962 (2) or Article 23(2) of Regulation No 1/2003. That illegal act is based on the infringement of fundamental principles regarding the assessment of fines.
   Furthermore, the defendant infringed Article 15(2) of Regulation No 17/1962 or Article 23(2) of Regulation No 1/2003 by way of Article 2 of the contested decision, inasmuch as it incorrectly applied the 1996 Leniency Notice to the detriment of the applicant.
   Fifthly, the applicant submits that Article 2 of the contested decision is a violation of the principle of proportionality as insufficient regard was had to the individual position of the applicant in fixing the fine.
   Lastly, the applicant submits that the direction, in Article 3 of the Commission's decision, to redress infringements and desist from them in future infringes Article 7(1) of Regulation No 1/2003 as it is neither necessary nor proportionate in the applicant's case.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

      (2)  EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).


title: Judgment of the Court (Third Chamber) of  19 January 2006  in Case C-265/04: Reference for a preliminary ruling from the Kammarrätten i Sundsvall in Margaretha Bouanich v Skatteverket (Direct taxation — Free movement of capital — Dividend tax — Share repurchase — Deductibility of the cost of acquisition of shares — Separate treatment of residents and non-residents — Agreement for the avoidance of double taxation)

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/6

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 19 January 2006
   in Case C-265/04: Reference for a preliminary ruling from the Kammarrätten i Sundsvall in Margaretha Bouanich v Skatteverket (1)

   (Direct taxation - Free movement of capital - Dividend tax - Share repurchase - Deductibility of the cost of acquisition of shares - Separate treatment of residents and non-residents - Agreement for the avoidance of double taxation)
   (2006/C 60/12)
   Language of the case: Swedish
   In Case C-265/04: Reference for a preliminary ruling under Article 234 EC from the Kammarrätten i Sundsvall (Sweden ), made by decision of 17 June 2004, received at the Court on 24 June 2004, in the proceedings Margaretha Bouanich v Skatteverket — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr, A. Borg Barthet and U. Lõhmus (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 19 January 2006, the operative part of which is as follows:

               1.

               Articles 56 EC and 58 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that a payment in respect of a share repurchase to a non-resident shareholder in connection with a reduction in share capital is taxed as a dividend without there being a right to deduct the cost of acquisition of those shares, whereas the same payment made to a resident shareholder is taxed as a capital gain with a right to deduct the cost of acquisition.

               2.

               Articles 56 EC and 58 EC must be interpreted as precluding national legislation which derives from a double taxation agreement, such as the Agreement between the Government of the French Republic and the Government of the Kingdom of Sweden for the Avoidance of Double Taxation and the Prevention of Tax Evasion in respect of Taxes on Income and Wealth, signed on 27 November 1990, which fixes a lower ceiling on the taxation of dividends for non-resident shareholders than for resident shareholders, and, by interpreting that agreement in the light of the commentaries of the Organisation for Economic Cooperation and Development on its applicable model convention, permits the nominal value of such shares to be deducted from the share repurchase payment, except where, under such national legislation, non-resident shareholders are not treated less favourably than resident shareholders. It is for the national court to determine whether that is the case in the specific circumstances of the main proceedings.

      (1)  OJ C 228, 11.09.2004.


C 55/42                 EN                          Official Journal of the European Union                                     8.3.2003
as the Commission changed the legal assessment of the                       Removal from the register of Joined Cases T-100/02 and
infringements without offering the applicant the possibility of                                        T-102/02 (1)
responding to it during the administrative proceedings.
                                                                                (2003/C 55/100)
( 1) EEC Council: Regulation No 17: First Regulation implementing                              (Language of the Case: English)
     Articles 85 and 86 of the Treaty (OJ 13 of 21.2.1962, p. 204).
                                                                            By order of 2 December 2002 the President of the Fifth
                                                                            Chamber of the Court of First Instance of the European
                                                                            Communities ordered the removal from the register of Joined
                                                                            Cases T-100/02 and T-102/02: EVC International N.V. v
                                                                            Commission of the European Communities.
         Removal from the register of Case T-96/01 (1)
                                                                            (1 ) OJ C 156 of 29.06.2002.
                           (2003/C 55/98)
                     (Language of the Case: Greek)
                                                                                Removal from the register of Case T-170/02 (1)
By order of 13 December 2002 the President of the Second
Chamber of the Court of First Instance of the European                                               (2003/C 55/101)
Communities ordered the removal from the register of Case
T-96/01: Rodolfos Maslias v European Parliament.                                                (Language of the Case: French)
( 1) OJ C 200 of 14.07.2001.
                                                                            By order of 6 December 2002 the President of the Second
                                                                            Chamber of the Court of First Instance of the European
                                                                            Communities ordered the removal from the register of Case
                                                                            T-170/02: Maria Rosaria Ragazzini v European Parliament.
                                                                            (1 ) OJ C 202 of 24.08.2002.
Removal from the register of Joined Cases T-99/02 and
                             T-101/02 ( 1)
                           (2003/C 55/99)
                                                                                Removal from the register of Case T-295/02 ( 1).
                    (Language of the Case: English)
                                                                                (2003/C 55/102)
                                                                                (Language of the Case: Dutch)
By order of 2 December 2002 the President of the Fifth
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Joined                 By order of 13 December 2002 the President of the Third
Cases T-99/02 and T-101/02: Ineos N.V. v Commission of the                  Chamber of the Court of First Instance of the European
European Communities.                                                       Communities ordered the removal from the register of Case
                                                                            T-295/02: Koninklijke BAM NBM N.V. v Commission of the
( 1) OJ C 156 of 29.06.2002.                                                European Communities.
                                                                            (1 ) OJ C 289 of 23.11.2002.


title: Cases C-541/99 and C-542/99: References for preliminary rulings by the Giudice di Pace di Viadana (MN), by orders of 12 November 1999, in the cases of Cape Snc, Parma, v Idealservice Srl, Viadana, and Idealservice MN RE SaS, Viadana, v O.M.A.I. Srl, Cadelbosaco Sotto (RE)

text:
C 47/26                 EN                     Official Journal of the European Communities                                      19.2.2000
1. In respect of the period before 1 June 1997, must the                  References for preliminary rulings by the Giudice di Pace
     provisions of the Convention on international trade in               di Viadana (MN), by orders of 12 November 1999, in the
     endangered species of wild fauna and flora (Cites), in               cases of Cape Snc, Parma, v Idealservice Srl, Viadana,
     particular Articles VII and XIV thereof, of Regulation               and Idealservice MN RE SaS, Viadana, v O.M.A.I. Srl,
     (EEC) No 3626/82 of 3 December 1982 (1), in particular                                   Cadelbosaco Sotto (RE)
     Articles 6 and 15 thereof, and of Articles 30 and 36 of the
     EC Treaty be interpreted as meaning that they allow a                                (Cases C-541/99 and C-542/99)
     Member State to take or maintain domestic measures
     prohibiting at any time and in the whole territory of that                                     (2000/C 47/44)
     State any commercial use of specimens born and reared in
     captivity of wild species occurring in the wild in all or part       Reference has been made to the Court of Justice of the
     of the territory of that State?                                      European Communities by orders of the Giudice di Pace di
                                                                          Viadana of 12 November 1999, which were received at the
                                                                          Court Registry on 31 December 1999, for preliminary rulings
2. With effect from 1 June 1997, must the provisions of the               in the cases of Cape Snc, Parma, v Idealservice Srl, Viadana,
     Convention on international trade in endangered species              and Idealservice MN RE SaS, Viadana, v O.M.A.I. Srl, Cadelbo-
     of wild fauna and flora (Cites), in particular Articles VII          saco Sotto (RE), on the interpretation of Article 2(b) of Council
     and XIV thereof, of Council Regulation (EC) No 338/97 of             Directive 93/13/EEC of 5 April 1993 (1) on unfair terms in
     9 December 1996 on the protection of species of wild                 consumer contracts in order to answer the following questions:
     fauna and flora by regulating trade therein (2), and of
     Articles 30 and 36 of the EC Treaty be interpreted as                (1) Is it possible to regard as a consumer an undertaking
     meaning that they allow a Member State to take or                        which, by a contract with another undertaking using a
     maintain domestic measures prohibiting at any time and                   form produced by the latter in so far as the contract falls
     in the whole territory of that State any commercial use of               within the scope of its normal business activity, acquires a
     specimens born and reared in captivity of wild species                   service or merchandise for the sole benefit of its employees,
     occurring in the wild in all or part of the territory of that            which is wholly unconnected with and remote from
     State?                                                                   its normal trade and business; can it be said in such
                                                                              circumstances that that party acted for purposes which do
                                                                              not relate to the undertaking?
(1) Council Regulation (EEC) No 3626/82 of 2 December 1982 on             (2) If the foregoing question is answered in the affirmative, is
    the implementation in the Community of the Convention on                  it possible to regard any party or entity as a consumer
    international trade in endangered species of wild fauna and flora,
    OJ L 384 of 31.12.1982, p. 1.
                                                                              when it is acting for purposes not relating or conducive to
                                                                              its normal trade or business, or does the term consumer
(2) Council Regulation (EC) No 338/97 of 9 December 1996 on the
    protection of species of wild fauna and flora by regulating trade         relate only to natural persons, to the exclusion of any
    therein, OJ L 61 of 03.03.1997, p. 1.                                     other?
                                                                          (3) Can a company be regarded as a consumer?
                                                                          (1) OJ L 95 of 21.4.93, p. 9.


title: Case T -73/06: Action brought on  28 February 2006  — Cassegrain v OHIM

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/23

         Action brought on 28 February 2006 — Cassegrain v OHIM
   (Case T -73/06)
   (2006/C 108/43)
   Language in which the application was lodged: French
   Parties

      Applicant: Jean Cassegrain (Paris, France) (represented by: Y. Coursin and T. van Innis, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought
   The applicant claims that the Court should:

               —

               Primarily, annul the decision taken and order OHIM to pay the costs;

               —

               Alternatively, appoint an expert or a body of experts with responsibility for giving the Court guidance on whether or on what conditions the shape of a manufactured good or the representation of its outline can have as much influence on the public's memory of it as an accompanying term, as an indication of its business origin, and reserve the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Figurative trade mark representing a bag in respect of goods in Class 18 (Application No 003598571)

      Decision of the Examiner: Registration refused.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: Infringement of Article 4 and Article 7(1)(b) of Council Regulation No 40/94. The applicant argues that the trade mark has enough distinctive character to distinguish and characterise a bag or a range of bags from one undertaking from those from other undertakings.


title: Case C-400/10: Reference for a preliminary ruling from the Supreme Court (Ireland) made on 6 August 2010 — J. McB. v L. E.

text:
               25.9.2010

               EN

               Official Journal of the European Union

               C 260/13

         Reference for a preliminary ruling from the Supreme Court (Ireland) made on 6 August 2010 — J. McB. v L. E.
   (Case C-400/10)
   ()
   2010/C 260/17
   Language of the case: English

      Referring court

   Supreme Court, Ireland

      Parties to the main proceedings

      Applicant: J. McB.

      Defendant: L. E.

      Question referred

   Does Council Regulation (EC) No 2201/2003 (1) of 27th November 2003 on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (2), whether interpreted pursuant to Article 7 of the Charter of Fundamental Rights of the European Union or otherwise, preclude a Member State from requiring by its law that the father of a child who is not married to the mother shall have obtained an order of a court of competent jurisdiction granting him custody in order to qualify as having ‘custody rights’ which render the removal of that child from its country of habitual residence wrongful for the purposes of Article 2.11 of that Regulation?

      (1)  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000
   OJ L 338, p. 1

      (2)  Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses
   OJ L 160, p. 19


title: Case T-386/09: Action brought on 5 October 2009 — Grúas Abril Asistencia v Commission

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/61

         Action brought on 5 October 2009 — Grúas Abril Asistencia v Commission
   (Case T-386/09)
   2009/C 282/114
   Language of the case: Spanish

      Parties

      Applicant: Grúas Abril Asistencia SL (Alicante, Spain) (represented by: R. L. García García, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Declare that the dismissal by the Spanish competition authorities and courts of the claim of the applicant, GRUAS ABRIL ASISTENCIA SL, is contrary to Articles 81 and 82 EC.

               —

               In consequence, order the Commission of the European Communities, which adopted the contested approval, to provide the necessary measures and guarantees in order to bring such unlawful activity to an end, imposing the appropriate fines and penalties for such infringement, and entitle BAS HERMANOS SL to be compensated for the loss it suffered as a result of that infringement.

               —

               Declare, in short, that by its conduct towards its service provider, the applicant, the company MAPFRE MUTUALIDAD DE SEGUROS Y REASEGUROS A PRIMA FIJA (now known as MAPFRE SA), infringed the Spanish Law on the Protection of Competition and Articles 81 and 82 EC, by unilaterally setting the rates for the breakdown services provided, setting rates below the cost price of such services, unjustifiably and arbitrarily requiring the services to be performed subject to conditions not provided for under the contract (performance of the service using breakdown trucks displaying MAPFRE’s logo), threatening to terminate the contract if such requirements were not met, and ultimately carrying out such a threat.

               —

               Order the Commission to pay the costs of the present proceedings.

      Pleas in law and main arguments

   The applicant in the present proceedings is a family company that provides vehicle-towing services for breakdown assistance.
   In its action, the applicant opposes MAPFRE SA’s conduct, allegedly in breach of the competition rules, which, in a contractual relationship for the provision of breakdown services, when required by MAPFRE or its insureds, for vehicles insured by MAPFRE, required the breakdown service to be provided, as the applicant itself states, using vehicles displaying the MAPFRE logo and the MAPFRE trade mark to be advertised completely free of charge, with rates set below the actual cost of the service provided.
   In support of its action, the applicant alleges infringement of the Community and national rules on competition.


20.2.98              EN                  Official Journal of the European Communities                                  C 55/33
In support of their plea in law, the applicants argue that          Menen (Belgium), represented by P. Cavenaille and K.
the Council has failed to comply with the duty to state             Tanghe, of the LieÁge Bar, with an address for service in
reasons pursuant to Article 190 of the Treaty. The Council          Luxembourg at the Chambers of A. Schmitt, 62, avenue
has failed to explain adequately why release of the                 Guillaume.
documents to which access has been refused should be
contrary to the public interest'. Since the reason given
consists merely in a standard reference to opinions drafted         The applicant claims that the Court should:
by the Legal Services being exempted en bloc from the
right of access, without any kind of specific consideration
being paid as to whether the interests invoked regarding            Ð declare the application admissible and well founded,
the maintenance of legal certainty and the stability of
Community law apply in regard to the documents
requested, the decision must on that ground alone be                Ð rule that the defendants are liable for the damage
annulled as being vitiated by fundamental procedural                    suffered by the applicant,
defects.
                                                                    Ð consequently, order the defendants jointly and
The applicants further argue that the decision is contrary              severally to pay a sum provisionally fixed at
to fundamental principles of law concerning application of              BEF 46 655 281, subject to increase or decrease during
the Treaty, including in particular the principle in force on           the course of the proceedings, together with 8 %
transparency in the decision-making process (see                        interest from 1 January 1993, the date on which the
Declaration No 17 in the Final Act to the Treaty on                     damage was effectively suffered, to the date of
European Union, the Code of Conduct concerning Public                   payment in full,
Access to Council and Commission Documents (93/730/
EC, OJ L 340, 31.12.1993, p. 41), and Council Decision
93/731/EC of 20 December 1993 on public access to                   Ð order the defendants jointly and severally to pay the
Council documents (OJ L 340, 31.12.1993, p. 43)). The                   costs.
applicants submit in this connection that the exceptions to
the fundamental principle of transparency must be
                                                                    Pleas in law and main arguments adduced in support:
narrowly construed, and the Council cannot therefore
exempt an entire group of documents from the right of
access merely on the basis of their origin. On the contrary,        The applicant, a firm of customs agents, complains that
an examination must be made in each case as to whether              the defendants ruined its intra-Community business with
the interests referred to in the Code of Conduct provide            effect from 1 January 1993 by abolishing customs controls
justification for exempting a specific document from the            and formalities at internal borders through a series of acts
right of access. There are in this case no such specific            which it specifies in detail. It also complains that the
interests such as could justify the refusal to grant access.        defendants failed to adopt any effective transitional
                                                                    measures enabling customs agents progressively to adapt
                                                                    to the new situation. In that regard, it pleads inter alia
In the alternative, the applicants submit that the interests
                                                                    breach of acquired rights and violation of the principle of
pleaded by the Council do not appear to apply in regard
                                                                    the protection of legitimate expectations.
to the documents which they have requested. On the
contrary, the maintenance of legal certainty and the
stability of Community law can be guaranteed by allowing
the public to discover the full basis on which the Council
has adopted secondary legal measures.
                                                                    Action brought on 24 December 1997 by Wybo NV
                                                                    against the Commission of the European Communities
                                                                               and the Council of the European Union
                                                                                (Case T-619/97)
Action brought on 24 December 1997 by Transfluvia NV
against the Commission of the European Communities                                          (98/C 55/65)
           and the Council of the European Union
                      (Case T-611/97)                                              (Language of the case: Dutch)
                        (98/C 55/64)
                                                                    An action against the Commission of the European
                (Language of the case: Dutch)                       Communities and the Council of the European Union was
                                                                    brought before the Court of First Instance of the European
                                                                    Communities on 24 December 1997 by Wybo NV, of
An action against the Commission of the European                    Poperinge (Belgium), represented by P. Cavenaille and K.
Communities and the Council of the European Union was               Tanghe, of the LieÁge Bar, with an address for service in
brought before the Court of First Instance of the European          Luxembourg at the Chambers of A. Schmitt, 62, avenue
Communities on 24 December 1997 by Transfluvia NV, of               Guillaume.
 ---pagebreak--- C 55/34                EN                  Official Journal of the European Communities                                      20.2.98
The applicant claims that the Court should:                               relied upon against the applicant for the purposes of
                                                                          deducting, in respect of the period from 1 January
Ð declare the application admissible and well founded,                    1989 to 30 September 1995 inclusive, Community tax
                                                                          from the income earned by her from her activities as a
Ð rule that the defendants are liable for the damage
                                                                          freelance interpreter working for the defendant,
     suffered by the applicant,
Ð consequently, order the defendants jointly and                      Ð order the defendant to repay the Community tax paid
     severally to pay a sum provisionally fixed at                        by the applicant during the period from 1 January
     BEF 10 377 559, subject to increase or decrease during               1989 to 30 September 1995 inclusive, currently
     the course of the proceedings, together with 8 %                     estimated by the applicant as amounting to
     interest from 1 January 1993, the date on which the                  ECU 43 265, together with interest at the rate of 8 %
     damage was effectively suffered, to the date of                      or at the legal rate applicable,
     payment in full,
                                                                      Ð by way of subsidiary relief,
Ð order the defendants jointly and severally to pay the
     costs.                                                               order the defendant to compensate the applicant for
                                                                          the damage, currently estimated to amount to BEF
Pleas in law and main arguments adduced in support:                       642 199, together with such further damage as may be
                                                                          specified, arising from additional claims by the Belgian
The pleas in law and main arguments are the same as in                    tax and/or social security authorities in relation to the
Case T-611/97 (1).                                                        period from 1 January 1989 to 30 September 1995
                                                                          inclusive during which the defendant retained
(1) See page 33 of this Official Journal.                                 Community tax deducted from the applicant's income,
                                                                      Ð order the defendant to pay the costs.
                                                                      Pleas in law and main arguments adduced in support:
Action brought on 30 December 1997 by E against the
                                                                      The defendant was not entitled to levy Community tax.
         Commission of the European Communities
                          (Case T-2/98)                               1. By levying Community tax in respect of the applicant,
                           (98/C 55/66)                                   the Commission acted contrary to Community law, in
                                                                          particular Article 13 of the Protocol on the Privileges
                 (Language of the case: Dutch)                            and Immunities and the rules implementing that
                                                                          provision together with Article 28 of the Merger
An action against the Commission of the European
                                                                          Treaty, as well as the principle of legality; in so doing,
Communities was brought before the Court of First
                                                                          it misused, alternatively exceeded, its powers.
Instance of the European Communities on 30 December
1997 by E, residing in Brussels, represented by G. van der            2. For the reasons stated above, the defendant's refusal to
Wal, Advocaat with a right of audience before the Hoge                    repay to the applicant the Community tax paid by the
Raad der Nederlanden (Supreme Court of the                                latter since 1989 is unlawful; in addition, it is clearly
Netherlands), The Hague, and L. Y. J. M. Parret, of the                   under a duty to repay the sums paid by the applicant
Brussels Bar, with an address for service in Luxembourg at                which the latter was not liable to pay.
the Chambers of A. May, 31 Grand-Rue.
                                                                      3. Moreover, the refusal to repay the sums in question is
The applicant claims that the Court should:
                                                                          contrary to the principles of the protection of
Ð annul, or at least declare void, the decision contained                 legitimate expectations and of equality.
     in the defendant's letter of 31 October 1997 refusing
     the applicant's request for repayment of the                     In so far as the Court considers that it cannot order the
     Community tax paid by the applicant since 1 January              defendant to repay the Community tax paid by the
     1989,                                                            applicant, the applicant applies for a declaration by the
                                                                      Court that the defendant is liable for the damage suffered
Ð declare void Article 8 of the agreement with the                    by the applicant as a result of the defendant's unlawful
     A.I.I.C., alternatively rule that that Article may not be        conduct (Article 215 of the EC Treaty).