title: Case C-668/11 P: Appeal brought on 27 December 2011 by Aliance One International, Inc. formerly Agroexpansión, S.A., against the judgment of the General Court (Fourth Chamber) delivered on 12 October 2011 in Case T-38/05 Agroexpansión S.A. v European Commission

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/5

         Appeal brought on 27 December 2011 by Aliance One International, Inc. formerly Agroexpansión, S.A., against the judgment of the General Court (Fourth Chamber) delivered on 12 October 2011 in Case T-38/05 Agroexpansión S.A. v European Commission
   (Case C-668/11 P)
   2012/C 89/07
   Language of the case: Spanish

      Parties

      Appellant: Aliance One International, Inc, formerly Agroexpansión, S.A. (represented by: M. Odriozola and A. Vide, Abogados)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court of Justice should:

               —

               set aside the judgment of the General Court in Case T-38/05 Agroexpansión, S.A. v Commission;

               —

               reduce the amount of the fine imposed on it;

               —

               order the Commission to pay the costs incurred at both instances.

      Pleas in law and main arguments

               1.

               The appellant considers that the Commission and the General Court misapplied Article 101(1) TFEU and Article 23(2) of Regulation 1/2003 (1) in finding Dimon joint and severally liable for the infringement committed by Agroexpansión. The appellant submits that the General Court infringed its rights of defence and Article 296 TFEU in establishing in its judgment (and thus ex post facto) the standard of proof applied by the Commission in its Decision. (2) Consequently, in treating other undertakings more favourably, the General Court infringed the principle of equal treatment laid down in Article 20 of the Charter of Fundamental Rights. Moreover, the General Court could not ignore the fact that, in its decision, the Commission did not adequately reason its arguments relating to the rebuttal of the presumption.

               2.

               The appellant considers that there was an error in the application of the Guidelines on the method of setting fines, and of the principle that penalties are to be tailored to the individual and of the principle of proportionality in relation to the period during which Agroexpansión did not form part of the Dimon group. The appellant considers that, for the purposes of determining the amount of the fine imposed on Agroexpansión for the period prior to its joining the Dimon group, it was not appropriate to apply any adjustment factor to the basic amount of the fine imposed on Agroexpansión since, during that period, Agroexpansión was not a subsidiary of any multinational group. In the alternative, if the Court of Justice considers that a single fine should be imposed, the appellant submits that such a fine should be reduced in order to eliminate the disproportionate adjustment factor applied.

      (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)  Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81 [EC] (Case COMP/C.38.238.B.2 — Raw tobacco — Spain).


title: Judgment of the Court of First Instance of 30 March 2000 in Case T-65/96: Kish Glass & Co. Ltd v Commission of the European Communities [Competition — Float glass — Rights of defence and procedural rights of the complainant — Product market and geographical market — Article 86 of the EC Treaty (now Article 82 EC)]

text:
27.5.2000                EN                      Official Journal of the European Communities                                    C 149/29
                                                           COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                          of 30 March 2000                                                         of 30 March 2000
in Case T-513/93: Consiglio Nazionale degli Spedizionieri                   in Case T-65/96: Kish Glass & Co. Ltd v Commission of
Doganali v Commission of the European Communities (1)                                       the European Communities (1)
[(Competition — Customs agents — Meaning of ‘undertak-                      [Competition — Float glass — Rights of defence and
ing’ and ‘an association of undertakings’ — Decisions                       procedural rights of the complainant — Product market and
adopted by associations of undertakings — Setting of tariffs                geographical market — Article 86 of the EC Treaty (now
— Governed by public law — Applicability of Article 85(1)                                            Article 82 EC)]
              of the EC Treaty (now Article 81 EC)]
                                                                                (2000/C 149/55)
                           (2000/C 149/54)
                                                                                (Language of the case: English)
                     (Language of the case: Italian)
                                                                            In Case T-65/96 Kish Glass & Co. Ltd, established in Dublin
In Case T-513/93: Consiglio Nazionale degli Spedizionieri                   (Ireland), represented by M. Byrne, Solicitor, with an address
Doganali, established in Rome, represented by A. Pappalardo,                for service in Luxembourg at the Chambers of Arendt and
of the Trapani Bar, A. Marzano, of the Rome Bar, and A.                     Medernach, 8-10 Rue Mathias Hardt v Commission of the
Tizzano, of the Naples Bar, with an address for service in                  European Communities, (Agents: initially by R. Lyal and R.
Luxembourg at the Chambers of A. Lorang, 51 Rue Albert 1er                  Caudwell, and subsequently, in the oral procedure, by B.
v Commission of the European Communities (Agents: initially                 Doherty) supported by Pilkington United Kingdom Ltd, estab-
M. Mensi and E. Traversa, subsequently G. Marenco and E.                    lished in Saint Helens, Merseyside (United Kingdom), represent-
Traversa), supported by the Associazione Italiana dei Corrieri              ed by J. Kallaugher, Solicitor, A. Weitbrecht, Berlin and M.
Aerei Internazionali, established in Milan, represented by L.               Hansen, Brussels, with an address for service in Luxembourg
Magrone Furlotti and C. Osti, of the Rome Bar, with an address              at the Chambers of Loesch & Wolter, 11 Rue Goethe, —
for service in Luxembourg at the Chambers of M. Loesch, 11                  application for annulment of the Commission Decision of
Rue Goethe — application for annulment of Commission                        21 February 1996 (IV/34.193 — Kish Glass) rejecting the
Decision 93/438/EEC of 30 June 1993 relating to a proceeding                complaint made by the applicant on 17 January 1992 pursuant
pursuant to Article 85 of the EEC Treaty (IV/33.407 — CNSD)                 to Article 3(2) of Council Regulation No 17 of 6 February
(OJ 1993 L 203, p. 27) — the Court of First Instance (Fifth                 1962, First Regulation implementing Articles 85 and 85 of the
Chamber, Extended Composition), composed of J.D. Cooke,                     Treaty (OJ, English Special Edition 1959-1962, p. 87) alleging
President, and R. Garcı́a-Valdecasas, P. Lindh, J. Pirrung and M.           an infringement of Article 86 of the EC Treaty (now Article 82
Vilaras, Judges; J. Palacio González, Administrator, for the               EC) — the Court (Fourth Chamber), composed of: R.M. Moura
Registrar, gave a judgment on 30 March 2000, the operative                  Ramos, President, V. Tiili and P. Mengozzi, Judges; J. Palacio
part of which is as follows:                                                González, Administrator, for the Registrar, has given a judg-
                                                                            ment on 30 March 2000, in which it:
1. The application is dismissed.
                                                                            1. Dismisses the application;
2. The applicant is ordered to bear its own costs, together with those
     incurred by the Commission and by the Associazione Italiana dei        2. Orders the applicant to pay the costs.
     Corrieri Aerei Internazionali, intervener.
(1) OJ C 312 of 18.11.1993.                                                 (1) OJ C 210 of 20.7.1996.


title: Case T-419/13: Action brought on 14 August 2013 — Unión de Almacenistas de Hierros de España v Commission

text:
               19.10.2013

               EN

               Official Journal of the European Union

               C 304/20

         Action brought on 14 August 2013 — Unión de Almacenistas de Hierros de España v Commission
   (Case T-419/13)
   2013/C 304/35
   Language of the case: Spanish

      Parties

      Applicant: Unión de Almacenistas de Hierros de España (Madrid, Spain) (represented by: A. Creus Carreras, A. Valiente Martin and C. Maldonado Márquez, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested Commission decision of 18 June 2013;

               —

               order the Commission to pay the costs of the present proceedings;

               —

               in addition, as a measure of organisation of procedure, order the Commission to submit to the Court the documents to which it has denied access, so that the Court may examine them and verify the exactitude of the submissions made in the application.

      Pleas in law and main arguments

   In February 2013, the Unión de Almacenistas de Hierros de España (UAHE) requested access to certain documents in the possession of the European Commission by virtue of the mechanism for coordination with the national competition authorities provided for in Article 11(4) of 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). Specifically, the applicant sought access to all documents and communications exchanged between the Commission’s Directorate-General for Competition and the Spanish National Competition Commission (Comisión Nacional de la Competencia), concerning the penalty proceedings S-106/08 Almacenes de Hierro and S-254/10 Hierros Extremadura.
   After a first extension of the time-limit until 11 April 2013, the Commission sent the UAHE a communication whereby it:

               (a)

               granted access to the acknowledgements of receipt sent to the Comisión Nacional de la Competencia in relation to the two sets of proceedings in question;

               (b)

               informed the applicant that it did not have any information relating to those proceedings and that the information in its possession was protected by the exceptions laid down in Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

         The UAHE repeated its request and, after a first extension of the time-limit by 15 days, the Commission sent a further letter on 18 June, informing the UAHE that it was extending indefinitely the period for a response to the requests for access at issue.
   In support of the action, the applicant relies on four pleas in law.

               1.

               First plea in law, alleging an error of law in the interpretation of Article 4 of Regulation 1049/2001, in that the Commission did not carry out a concrete, individual assessment of the applicability of the exceptions laid down in that provision to the requests for access at issue in the present proceedings.

               2.

               Second plea in law, alleging breach of the first indent of Article 4(2) of Regulation 1049/2001, in that the requested information does not contain elements which could undermine the commercial interests of third-parties. In any event, that information could affect the interests of the applicant itself.

               3.

               Third plea in law, alleging breach of the third indent of Article 4(2) of Regulation 1049/2001, in that the concept of investigations provided therein can only refer to investigations by Community institutions or bodies, not national ones. Moreover, the facts investigated in both sets of proceedings are now time-barred.

               4.

               Fourth plea in law, alleging breach of the second subparagraph of Article 4(3) of Regulation 1049/2001, in that, in the context of the requested documents, the Commission does not take decisions, since its approach is purely passive, merely receiving documents or making observations. Furthermore, and in any event, the exception relied on can be applied only in respect of internal documents.


title: Case T-374/04: Action brought on 20 September 2004 by the Federal Republic of Germany against the Commission of the European Communities

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/25

         Action brought on 20 September 2004 by the Federal Republic of Germany against the Commission of the European Communities
   (Case T-374/04)
   (2004/C 284/50)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 September 2004 by the Federal Republic of Germany, represented by Claus-Dieter Quassowski, Annette Tiemann, assisted by Dieter Sellner and Ulrich Karpenstein.
   The applicant claims that the Court of First Instance should:

               —

               annul Article 1 of Commission Decision K(2004)2515/2 fin. of 7 July 2004;

               —

               annul Article 2 of that decision to the extent to which in paragraphs (a) to (c) thereof it directs the Federal Republic of Germany to carry out and notify certain changes in the national allocation plan;

               —

               order the Commission to pay the costs.

         Pleas and main arguments:
   The contested decision concerns the national plan for the allocation of greenhouse gas emissions notified by Germany pursuant to Directive 2003/87/EC of the European Parliament and the Council. In that decision the Commission raises objections to the provision for subsequent corrections made in the national allocation plan for Germany in respect of allocations for greenhouse gas emission certificates (‘ex-post adjustments downwards’). In the Commission's view, the plan is on that account irreconcilable with Annex III to Directive 2003/87/EC. (1)

   In substantiation of its action the applicant claims that the contested decision is in breach of Article 9(3) of Directive 2003/87 in conjunction with Annex III thereto. Annex III does not prohibit the Member States from counteracting an ‘over-allocation’ by means of ‘ex-post adjustments’. On the contrary, Directive 2003/87 requires the Member States to withdraw an allocation decision based on erroneous data.
   The contested decision is also in breach of Article 176 EC since the Commission is not entitled to debar the Member States from making an additional contribution to climate protection by withdrawing allocated emission certificates where they have failed to fulfil their purpose.
   Finally, the Commission overlooked the fact that new market participants cannot be placed at an ‘unjustifiable advantage’ because ex-post adjustments can be made only downwards. To that extent the contested decision is vitiated by a manifest error of assessment.

      (1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 established a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 1996 L 275, p. 32).


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber) of 15 September 1998 in Case T-142/97: Eugénio Branco Ldª v Commission of the European Communities (Actions for annulment - European Social Fund - Reduction of financial contribution - Certification by the Member State - Error of assessment of the facts - Legitimate expectations - Legal certainty - Proportionality)

text:
24.10.98             EN                  Official Journal of the European Communities                                C 327/23
Jean-FrancËois Bellis and Richard Luff, of the Brussels Bar,        1. The application is dismissed.
with an address for service in Luxembourg at the
Chambers of Freddy Brausch, 11 Rue Goethe, against
Council of the European Union (Agents: Antonio Tanca,               2. The applicant is ordered to pay the costs.
Hans-Jürgen Rabe and Georg M. Berrisch) Ð application
for the annulment of Council Regulation (EC) No 648/96              (1) OJ C 199 of 28.6.1997.
of 28 March 1996 imposing a definitive anti-dumping
duty on imports of bicycles originating in Indonesia,
Malaysia and Thailand and collecting definitively the
provisional duties imposed (OJ L 91, 12.4.1996, p. 1) Ð
the Court of First Instance (Fourth Chamber, Extended
Composition), composed of: P. Lindh, President, R.
García-Valdecasas, K. Lenaerts, J. D. Cooke and M.                    JUDGMENT OF THE COURT OF FIRST INSTANCE
Jaeger, Judges; B. Pastor, Principal Administrator, for the                             of 16 September 1998
Registrar, has given a judgment on 17 July 1998, in which
it:                                                                 in Case T-215/97: Sari Kristiina Jouhki v Commission of
                                                                                the European Communities (1)
                                                                    (Officials Ð Notice of competition Ð Refusal to admit to
1. Dismisses the application;                                                                competition)
                                                                                (98/C 327/42)
2. Orders the applicant to pay the costs.
                                                                                (Language of the case: Finnish)
( ) OJ C 318, 26.10.1996.
 1
                                                                    In Case T-215/97: Sari Kristiina Jouhki, a nurse, residing
                                                                    in Pyhäjärvi, Finland, represented by Harri Ojala, of the
                                                                    Oulu Bar, against Commission of the European
                                                                    Communities (Agent: Esa Passivirta) Ð application for
                                                                    annulment of the decision of the Selection Board in Open
                                                                    Competition COM/B/973 not to allow the applicant to
   JUDGMENT OF THE COURT OF FIRST INSTANCE                          take part in the competition Ð the Court of First Instance
                                                                    (Fourth Chamber), composed of: P. Lindh, President, K.
                       (Third Chamber)                              Lenaerts and J. D. Cooke, Judges; A. Mair, Administrator,
                                                                    for the Registrar, has given a judgment on 16 September
                    of 15 September 1998
                                                                    1998 in which it:
in Case T-142/97: EugeÂnio Branco Ld.a v Commission of
               the European Communities (1)
                                                                    1. Dismisses the application;
(Actions for annulment Ð European Social Fund              Ð
Reduction of financial contribution Ð Certification by    the
                                                                    2. Orders the parties to bear their own costs.
Member State Ð Error of assessment of the facts            Ð
Legitimate expectations Ð Legal certainty                  Ð
                        Proportionality)                            (1) OJ C 357, 22.11.1997.
                         (98/C 327/41)
             (Language of the case: Portuguese)
                                                                         ORDER OF THE COURT OF FIRST INSTANCE
                                            a
In Case T-142/97: EugeÂnio Branco Ld., established in                                      of 20 July 1998
Lisbon, represented by Bolota Belchior, of the Vila Nova
                                                                          in Case T-61/96: JoseÂ Francisco Meoro AvileÂs v
de Gaia Bar, with an address for service in Luxembourg at
                                                                           Commission of the European Communities (1)
the Chambers of Jacques Schroeder, 6 Rue Heine, against
Commission of the European Communities (Agents: Maria               (Notices of competition Ð Non-submission of application
Teresa Figueira and Knut Simonsson) Ð application for                       Ð Action for annulment Ð Inadmissibility)
the annulment of the decision of the Commission C(96)
3170 of 16 December 1996 reducing a financial                                               (98/C 327/43)
contribution granted by the European Social Fund to the
applicant Ð the Court of First Instance (Third Chamber),                           (Language of the case: Spanish)
composed of V. Tiili, President, C. P. BrieÈt and A. Potocki,
Judges; Blanca Pastor, Principal Administrator, for the
Registrar, gave a judgment on 15 September 1998, the                In Case T-61/96: JoseÂ Francisco Meoro AvileÂs, a technical
operative part of which reads as follows:                           industrial engineer, residing in Alcantarilla (Spain),


title: Case C-231/09: Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 25 June 2009 — Hauptzollamt Oldenburg v 1. Theodor Aissen, 2. Hermann Rohaan; intervener: Bundesministerium der Finanzen

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/19

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 25 June 2009 — Hauptzollamt Oldenburg v 1. Theodor Aissen, 2. Hermann Rohaan; intervener: Bundesministerium der Finanzen
   (Case C-231/09)
   2009/C 220/36
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Appellant: Hauptzollamt Oldenburg

      Respondents: 1. Theodor Aissen, 2. Hermann Rohaan

      Intervener: Bundesministerium der Finanzen

      Questions referred

               1.

               Must Community law, in particular Article 5(k) of Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector, (1) be interpreted to mean that the reference quantity of a producer who, in the course of an ongoing twelve-month period, took over an agricultural holding from another producer does not include the quantity in respect of which, during the twelve-month period concerned, milk was delivered by that other producer prior to the transfer of the holding?

               2.

               Do provisions of Community law or general principles governing the common organisation of the market in milk and milk products preclude a rule of national law which, in the framework of the balancing of the unused part of the national reference quantity against deliveries of excess quantities envisaged in Article 10(3) of Regulation No 1788/2003 in the situation at issue in the first question, allows the producer who has taken over the agricultural holding in the course of the twelve-month period to include the portion of the reference quantity already delivered by the other producer for the purpose of participating in the allocation of that unused part?

      (1)  OJ 2003 L 270, p. 123.


title: Case C-398/06: Action brought on 25 September 2006 — Commission of the European Communities v Kingdom of the Netherlands

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/30

         Action brought on 25 September 2006 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-398/06)
   (2006/C 294/53)
   Language of the case: Dutch
   Parties

      Applicant: Commission of the European Communities (represented by: M. Condou-Durande and R. Troosters, Agents)

      Defendant: Kingdom of the Netherlands
   Form of order sought

               —

               Declare that, by maintaining in force national provisions under which economically non-active and pensioned EU/EEA nationals must prove that they have lasting means of support in order to obtain a residence permit, the Kingdom of the Netherlands has failed to fulfil its obligations under Council Directive 90/364/EEC (1) of 28 June 1990 on the right of residence, Council Directive 90/365/EEC (2) of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity and Council Directive 68/360/EEC (3) of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families;

               —

               order the Kingdom of the Netherlands to pay the costs.

         Pleas in law and main arguments
   The requirement in the Netherlands rules that in order to obtain a residence permit a person must have sufficient means for a minimum period of one year is not in conformity with Community law.

      (1)  OJ 1990 L 180, p. 26.

      (2)  OJ 1990 L 180, p. 28.

      (3)  OJ, English Special Edition 1968(II), p. 485.


title: Case T-386/00: Action brought on 28 December 2000 by Margarida Gonçalves against the European Parliament

text:
C 61/22               EN                      Official Journal of the European Communities                                      24.2.2001
—     order that interest at the annual rate of 8 % or any other         The applicant claims that the Court should:
      appropriate rate to be determined by the Court be paid
      on the amount payable as from the date of judgment;                —     rule that the European Investment Bank is required to
                                                                               reimburse to Mr Seiller the sum of LUF 4 779 652 in
—     order the European Community, as represented here                        respect of his pension rights;
      by the Council of the European Union, the European
      Parliament and the Commission of the European Com-
      munities, to bear the costs of the proceedings.                    —     rule that that sum is to bear compound interest from
                                                                               1 May 1993 at the annual rate fixed by the President of
                                                                               the European Investment Bank;
Pleas in law and main arguments
                                                                         —     order the European Investment Bank to pay all the costs.
The applicant in the present case is a small well-established
firm in the business of high quality printing on folding carton
packaging for products such as cosmetics and fragances. The              Pleas in law and main arguments
market in question is to a great extent focused on the United
States both in terms of logistics and market share.
                                                                         The applicant in the present case, having worked for the EIB,
                                                                         submitted his resignation in April 1993, requesting that he
The applicant states that, as a result of the retaliatory measures       should not have to work his notice period. Thereafter, the
taken by the United States, and allowed by The Dispute                   defendant and the applicant signed an agreement by which the
Settlement Body, because of the adoption by the European                 EIB was to pay to Mr Seiller a certain sum ‘in full and final
Community of a scheme for importation of bananas that is to              settlement, on a lump-sum basis, of all accounts due and in
be considered as contrary to the GATT and GATS, the United               satisfaction of all rights and claims, whether contractual or
States market has been entirely closed off, so that heavy                extra-contractual, which you have or may have against the
investments in capital adapted specifically to the needs of this         Bank or any other Community body as at today’s date’.
market have been rendered worthless. As a question of fact,
the sanctions in question have been applied to the applicant’s
products now for over 18 months, taking the form of 100 %                The applicant maintains that the consent expressed by him in
ad valorem duties.                                                       that agreement is vitiated by the fact that, at the time when it
                                                                         was signed, he did not have available to him all the information
                                                                         necessary in order for him to be fully apprised. Thus, the sum
The applicant submits that the Community’s maintenance in                paid to him did not include the amount corresponding to the
place of an unlawful banana regime has caused it serious                 reimbursement of his pension rights.
damage which the Community has a duty to make good under
Article 288(2) C. In support of this claim the applicant submits
that the damage being caused to it is the direct result of the           The applicant therefore seeks to challenge the sum expressed
Community’s unlawful failure to comply with its international            to be in full and final settlement under the agreement signed
obligations.                                                             in April 1993.
Action brought on 27 December 2000 by Jean-Paul Seiller
            against the European Investment Bank                         Action brought on 28 December 2000 by Margarida
                                                                                Gonçalves against the European Parliament
                        (Case T-385/00)
                                                                                (Case T-386/00)
                         (2001/C 61/41)
                                                                                (2001/C 61/42)
                   (Language of the case: French)
                                                                                (Language of the case: French)
An action against the European Investment Bank was brought
before the Court of First Instance of the European Communities           An action against the European Parliament was brought before
on 27 December 2000 by Jean-Paul Seiller, resident in                    the Court of First Instance of the European Communities on
Luxembourg, represented by Dominique Chouanier, of the                   28 December 2000 by Margarida Gonçalves, residing in
Paris Bar, and Lex Thielen, of the Luxembourg Bar.                       Brussels, represented by Louis Tinti, of the Luxembourg Bar.
 ---pagebreak--- 24.2.2001              EN                      Official Journal of the European Communities                                         C 61/23
The applicant claims that the Court should:                               The applicant claims that the Court should:
—     annul the decision of the selection board rejecting the             —     annul the contested measure;
      application of the applicant in internal competition B/172
      opened by the notice published in Summary No 31/99;
                                                                          —     in the alternative, annul the contested measure and order
—     annul the decision establishing the list of suitable candi-               the defendant Commission to exclude from the agreed
      dates and all decisions taken by the defendant on the                     financing only the item of expenditure evidenced by the
      basis of such decisions;                                                  invoice from Linguistlink Ltd. No 67/91 for
                                                                                LIT 11 900 000 and declare the debt discharged in
                                                                                respect of the other lawful expenditure;
—     order the Parliament to pay the costs.
                                                                          —     order the defendant Commission to pay all the costs of
Pleas in law and main arguments                                                 the proceedings pursuant of Article 87 of the Rules of
                                                                                Procedure.
The applicant in the present case contests the refusal of the
selection board in internal competition B 7/172 to admit her
to the tests in that competition, the criteria for admission to           Pleas in law and main arguments
which she claims to fulfil.
                                                                          The present application has been made against the measure
In support of her application, she pleads:                                adopted by Directorate General XIX Budget, issued on 10 Octo-
                                                                          ber 2000 under number BUDG/G2/CBI-D(2000)96003569
—     infringement of Article 25 of the Staff Regulations;                requesting repayment and the debit note in relation to contract
                                                                          B4/91/3046/11396 of 20 December 1991, for financing for
—     infringement of Article 5 of Annex III to those Regu-               the applicant Committee. The purpose of that financing
      lations, resulting from a manifest error of assessment;             contract was to enable the organisation of a conference of
                                                                          international studies entitled ‘Effects of atmospheric pollutants
—     breach of the duty to have regard for the welfare and               on climate and vegetation’.
      interests of officials and of the principle of sound
      administration.
                                                                          The applicant states in that regard that:
                                                                          —     The conference followed the normal course in Taormina
                                                                                from 26 to 29 September 1991.
                                                                          —     The cost estimate was calculated at LIT 718 462 500,
                                                                                including VAT.
Action brought on 28 December 2000 by Comitato
organizzatore del convegno internazionale ‘Effetti degli                  —     Immediately after the conference, all the documentation
inquinamenti atmosferici sul clima e sulla vegetazione’                         relating to it was destroyed by a fire at the offices of the
    against Commission of the European Communities                              company which organised the conference. On account of
                                                                                events beyond its control the Organising Committee was
                         (Case T-387/00)                                        unable to recover the original statements and so had to
                                                                                undertake a complex reconstruction of them.
                          (2001/C 61/43)
                                                                          —     Following an initial claim for payment, in response to
                                                                                which the applicant sent documents which, in its view,
                                                                                were more than sufficient to prove and account for the
                   (Language of the case: Italian)                              expenditure incurred, the Commission remained silent
                                                                                for fully two years, giving rise to a legitimate expectation
                                                                                on the part of the Committee that the documentation
An action against the Commission of the European Communi-                       had been accepted and that all actions for recovery had
ties was brought before the Court of First Instance of the                      been abandoned.
European Communities on 28 December 2000 by the Comita-
to organizzatore del convegno internazionale "Effetti degli
inquinamenti atmosferici sul clima e sulla vegetazione" (Organ-           —     Instead, and to its great surprise, the Directorate General
ising Committee for the International Conference on ‘The                        concerned repeats its request for repayment, again with-
Effects of Atmospheric Pollutants on Climate and Vegetation’),                  out providing reasons, according to the applicant, and
represented by Paolo Grassi e Giuseppe Russo, with an address                   with no reference to an actual measure annulling the
for service in Luxembourg.                                                      financing.


title: Action brought on 25 April 1995 by Donald George Gage and David John Gage against the Council of the European Union and the Commission of the European Communities (Case T-108/95)

text:
12 . 8 . 95           EN                  Official Journal of the European Communities                                No C 208/29
before the Court of First Instance of the European                   before the Court of First Instance of the European
Communities on 25 April 1995 by Benjamin Laurence Lay,               Communities on 25 April 1 995 by Donald George Gage and
represented by Richard Gordon QC and Joanne Keddie,                  David John Gage, represented by Richard Gordon QC and
Solicitor, Dawson & Co, 2 New Square, Lincoln's Inn,                 Joanne Keddie, Solicitor, Dawson & Co, 2 New Square,
London WC2A 3RZ, England .                                           Lincoln's Inn, London WC2A 3RZ, England .
The applicant claims that the Court should :                         The applicants claim that the Court should :
— declare that the decision of the Council and/or the
                                                                     — declare that the decision of the Council and/or the
     Commission of 13 February 1995 declining
     non-contractual liability in respect of the application by          Commission of 13 February 1995 declining
     the applicant for measures providing compensation for               non-contractual liability in respect of the application by
     himself, and the group of SLOM 3 producers, is null                 the applicants for measures providing compensation for
     and/or void and of no effect and/or annul the said                  them, and the group of SLOM 3 producers, is null and/or
     decision;                                                           void and of no effect and/or annul the said decision;
— declare that the Council and/or the Commission have                — declare that the Council and/or the Commission have
     failed to implement a Regulation or take such other                 failed to implement a Regulation or take such other
     measures to introduce compensation for the applicant                measures to introduce compensation for the applicants
     and the group of SLOM 3 producers;                                  and the group of SLOM 3 producers;
— order that the costs of these proceedings be borne by the          — order that the costs of these proceedings be borne by the
     defendants .                                                        defendants .
Pleas in law and main arguments adduced in support:
                                                                     Pleas in law and main arguments adduced in support:
The applicant, a SLOM 3 dairy producer, complains that no
arrangements have been made by the Community                         The pleas in law and main arguments are the same as those
institutions to make available for this category of milk             raised in Case T-107/95 .
producers compensation measures similar to those
introduced for SLOM 1 and 2 producers pursuant to
Council Regulation ( EEC ) No 2187/93 .
According to Regulation ( EEC ) No 2187/93 , producers
who were allocated a special reference quantity under
Article 3a, pursuant to Regulation ( EEC ) No 2055/93 , are
excluded from claiming compensation in relation to their             Action brought on 8 May 1995 by Peter Dethlefs and 38
allocation of SLOM 3 quota .                                         other applicants against the Council of the European Union
                                                                         and the Commission of the European Communities
The applicant submits that this exclusion of the group of                                   ( Case T-l 12/95 )
SLOM 3 producers represents a serious violation of a                                           95/C 208/63 )
legitimate expectation of compensation for the period from
the end of his non-marketing scheme to the date on which he
received an allocation of SLOM 3 quota . Such a failure to                          (Language of the case: German)
provide for compensation is contrary to the principles of
Community law of respect for property and of
non-discrimination between equivalent producers.                     An action against the Council of the European Union and
                                                                     the Commission of the European Communities was brought
                                                                     before the Court of First Instance of the European
                                                                     Communities on 8 May 1995 by Peter Dethlefs and 38 other
                                                                     applicants , of Groven, Federal Republic of Germany . The
                                                                     applicants are represented by Bernd Meisterernst, Mechtild
                                                                     Düsing, Dietrich Manstetten, Dr Frank Schultze and Dr
Action brought on 25 April 1995 by Donald George Gage                Winfried Flaneklaus , of Münster ( Federal Republic of
and David John Gage against the Council of the European              Germany), whose address for service in Luxembourg is at
Union and the Commission of the European                             the Chambers of Dupong & Associates, 14a Rue des
                          Communities                                Bains .
                       ( Case T-108/95 )
                         ( 95/C 208/62
                                                                     The applicants claim that the Court should :
                (Language of the case: English)                      — order the defendants jointly and severally to pay to the
                                                                          applicants in respect of the period between the expiry of
An action against the Council of the European Union and                   the two-month period for acceptance contained in
the Commission of the European Communities was brought                    Article 14 of Council Regulation ( EEC ) No 2187/93 of


title: Case T-747/14: Action brought on 5 November 2014 — Merck v OHIM — Nestlé (HEALTHPRESSO)

text:
               22.12.2014

               EN

               Official Journal of the European Union

               C 462/32

         Action brought on 5 November 2014 — Merck v OHIM — Nestlé (HEALTHPRESSO)
   (Case T-747/14)
   (2014/C 462/44)
   Language in which the application was lodged: English

      Parties

      Applicant: Merck KGaA (Darmstadt, Germany) (represented by: M. Best, U. Pfleghar and S. Schäffner, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Société de Produits Nestlé SA (Vevey, Switzerland)

      Details of the proceedings before OHIM

      Applicant: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community word mark ‘HEALTHPRESSO’ — Application for registration No 1 0 0 03  028

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 7 August 2014 in Case R 1880/2013-1

      Form of order sought

   The applicant claims that the Court should:

               —

               Partially annul the contested decision insofar as the Board of Appeal upheld the opposition and rejected the CTM application for the goods in Class 30;

               —

               Reject opposition No B 1 1 91  607;

               —

               Order OHIM and the other party to the proceedings before the Board of Appeal to pay the costs.

      Pleas in law

               —

               Infringement of Article 96(2) of Regulation No 207/2009;

               —

               Infringement of Article 15(1) of Regulation No 207/2009;

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case T-77/03: Action brought on 4 March 2003 by Feralpi Siderurgica S.p.A. against the Commission of the European Communities

text:
10.5.2003              EN                          Official Journal of the European Union                                            C 112/35
The applicant furthermore submits that the Commission failed               The applicant relies on the following:
to take into account the applicant’s smaller total size in relation
to that of the other participants in the infringement while                —     error of law in the application of Article 87 of the EC
determining the starting point for the calculation of the fine.                  Treaty: the measure at issue is of general scope and does
According to the applicant, the Commission should have                           not constitute State aid within the meaning of Article 87
applied a downward adjustment for the applicant.                                 of the EC Treaty. In any event, the Commission has not
                                                                                demonstrated that the criterion as to effect on trade
The applicant finally claims that its cooperation with the                       between Member States has been met;
investigation qualified for a reduction of 50 % rather than
35 %. The applicant states that it voluntarily provided the                —     error in the facts set out in the decision: the undertakings
Commission with evidence showing that the infringement                           in the financial sector are affected, as are the undertakings
started earlier than known to the Commission.                                    in the remaining business sectors, by the structural
                                                                                disadvantages acknowledged in the contested decision;
                                                                           —     breach of an essential procedural requirement in that the
                                                                                statement of reasons is inadequate;
                                                                           —     breach of the principle of equality; and
Action brought on 28 February 2003 by Banco Comercial
dos Açores, SA against the Commission of the European
                           Communities                                     —     breach of the principles of legal certainty and legitimate
                                                                                expectations.
                          (Case T-75/03)
                         (2003/C 112/67)
                  (Language of the case: Portuguese)
                                                                           Action brought on 4 March 2003 by Feralpi Siderurgica
An action against the Commission of the European Communi-                  S.p.A. against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                                 ties
European Communities on 28 February 2003 by the Banco
Comercial dos Açores, SA, whose registered office is in Edifício
BCA, Rua Dr. José Bruno Tavares Carreiro, Ponta Delgada,                                             (Case T-77/03)
Azores, represented by Carlos Botelho Moniz and Margarida
Rosado da Fonseca, lawyers.
                                                                                (2003/C 112/68)
The applicant claims that the Court should:
                                                                                (Language of the case: Italian)
—     annul the last part of Article 1, together with Articles 2,
      3 and 4 of the decision of the Commission of 11 Decem-
      ber 2002 ‘on the part of the scheme adapting the
      national tax system to the specific characteristics of the           An action against the Commission of the European Communi-
      autonomous region of the Azores with regard to the tax               ties was brought before the Court of First Instance of the
      reductions’ to the extent that those provisions refer                European Communities on 4 March 2003 by the above
      to undertakings which pursue the financial activities                applicant, represented by Prof. G. M. Roberti, A. Franchi and
      provided for in Section J (Codes 65, 66 and 67) of the               I. Perego, lawyers,
      Statistical Classification of Economic Activities in the
      European Community — NACE REV1.1);
                                                                           The applicant claims that the Court should:
—     order the Commission of the European Communities to
      pay the entire costs.
                                                                           —     annul wholly or in part the Commission Decision of
                                                                                17 December 2002 on a proceeding pursuant to Article 6
                                                                                of the ECSC Treaty (Case COMP/37.956 — concrete
Pleas in law and main arguments                                                  reinforcing bars);
The contested decision declares compatible with the common                 —     cancel or reduce the fine imposed pursuant to Article 2
market the aid granted in the form of tax reductions under the                   of that decision;
tax system of the Azores, but not as regards the financial
services.                                                                  —     order the defendant to pay the costs.
 ---pagebreak--- C 112/36                EN                         Official Journal of the European Union                                       10.5.2003
Pleas in law and main arguments                                            In support of its application, the applicant claims that the
                                                                           Commission was under an obligation to act following the
                                                                           applicant’s observations. Thus the Commission should either
This action is brought against the same Decision as has already            have initiated a procedure against the company against which
been challenged in Case T-27/03 S.P. v Commission.                         the complaint had been made or adopted a definitive decision
                                                                           rejecting the complaint.
The pleas in law and main arguments are similar to those put
                                                                           The applicant further claims that the Commission did not
forward in that case.
                                                                           adopt a position within a reasonable period since, 16 months
                                                                           after the applicant submitted its observations and 9 years after
                                                                           the initial complaint was lodged, the Commission has still not
                                                                           adopted a definitive position.
Action brought on 4 March 2003 by Haladjian Frères
  against the Commission of the European Communities
                                                                           Action brought on 27 February 2003 by Industrie Riunite
                           (Case T-78/03)                                  Odolesi I.R.O. S.p.A. against the Commission of the
                                                                                European Communities
                         (2003/C 112/69)
                                                                                (Case T-79/03)
                    (Language of the case: French)
                                                                                (2003/C 112/70)
                                                                                (Language of the case: Italian)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 4 March 2003 by Haladjian Frères,
whose registered office is in Sorgues (France), represented by             An action against the Commission of the European Communi-
Nicole Coutrelis, lawyer.                                                  ties was brought before the Court of First Instance of the
                                                                           European Communities on 27 February 2003 by the above
                                                                           applicant, represented by Prof. A. Giardina, lawyer.
The applicant claims that the Court should:
                                                                           The applicant claims that the Court should:
—      declare, pursuant to Article 232 of the Treaty, that the
       Commission has failed to adopt a decision following the
       complaint submitted by the company Haladjian on                     —     annul the contested decision;
       18 October 1993;
                                                                           —     in the alternative, cancel or reduce the fine imposed on
—      order the Commission to pay the costs.                                    IRO in the decision;
                                                                           —     in any event, order the Commission to pay the costs.
Pleas in law and main arguments
                                                                           Pleas in law and main arguments
Nearly 10 years ago, the applicant submitted a complaint to
the Commission concerning an infringement by Caterpillar of                This action is brought against the same Decision as has already
Articles 81 and 82 of the EC Treaty. The applicant states that             been challenged in Case T-27/03 S.P. v Commission.
the inquiry into the case was unusually long and that it was
only 8 years later that the Commission sent it a letter advising
of its intention to reject the complaint. The applicant submitted          The pleas in law and main arguments are similar to those put
its observations on that letter and waited a year before putting           forward in that case.
the Commission on notice. It points out furthermore that the
Commission had still not adopted a position when the present
action was lodged.


title: Case T-382/13: Action brought on 24 July 2013 — Perfetti Van Melli v OHIM (MARGARITAS)

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/20

         Action brought on 24 July 2013 — Perfetti Van Melli v OHIM (MARGARITAS)
   (Case T-382/13)
   2013/C 274/34
   Language of the case: Italian

      Parties

      Applicant: Perfetti Van Melli SpA (Lainate, Italy) (represented by P. Testa, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               Annul the decision of the First Board of Appeal of 10 April 2013 in Case R 430/2012-1, in so far as it rejected the application for registration of the trade mark ‘MARGARITAS’ for the following products: confectionery, pastry, sweets, caramels, wine gums, caramel, chewing-gum, gelatine (confectionery), liquorice, lollipops, toffee, pastilles, sugar, chocolate, cocoa.

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: Community word mark ‘MARGARITAS’ for goods in Class 30 — Community trade mark application No 10 261 105

      Decision of the Examiner: Application rejected

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law:

               Infringement of Article 7(1)(c) of Regulation No 207/2009, since the word ‘MARGARITA’ is not descriptive;

               Infringement of Article 7(1)(c) of Regulation No 207/2009, since the word ‘MARGARITA’ does not describe an essential characteristic of the product;

               Infringement of Article 7(1)(b) of Regulation No 207/2009, since the term ‘MARGARITAS’ has distinctive character with regard to confectionery products.


title: Case T-385/05: Action brought on  21 October 2005  — Transnáutica/Commission

text:
               24.12.2005

               EN

               Official Journal of the European Union

               C 330/24

         Action brought on 21 October 2005 — Transnáutica/Commission
   (Case T-385/05)
   (2005/C 330/59)
   Language of the case: English
   Parties

      Applicant(s): Transnáutica — Transportes e Navegação, SA (Matosinhos, Portugal) [represented by: C. Fernández Vicién, I. Moreno-Tapia, D. Ortigão Ramos, B. Aniceto Silva, lawyers]

      Defendant(s): Commission of the European Communities
   Form of order sought

               —

               Annul in its entirety the Decision of the Commission of 6 July 2005 (process REM 05/2004) regarding a procedure of remission and repayment of customs duties;

               —

               order the Commission to pay the costs generated by this procedure.

         Pleas in law and main arguments
   The applicant is a Portuguese company, primarily engaged in freight transportation. In 1994 another Portuguese company dispatched a certain number of consignments of tobacco and ethyl alcohol from Portugal to countries then outside the Community under the external Community transit procedure. The applicant was named as principal, in the terms of Article 96 of the Community Customs Code (‘CCC’), for these consignments. It was later revealed that, in fact, the applicant's management was fully unaware of these transactions, as one of its employees had been acting fraudulently, using the applicant's guarantee certificate in violation of internal instructions.
   Because there was no evidence that the consignments in question had reached the customs office of their destination, the applicant, as principal, was requested to pay the relevant customs debts. The applicant later applied under Article 239 CCC for the repayment and remission of these debts, alleging that, being unaware of the unauthorised activities of its employee, it was not involved in any fraudulent activities and had collaborated with the authorities and that, further, the Portuguese customs authorities had never informed it about their suspicions of fraud in relation to the transactions in question. This application was rejected by the contested Decision.
   In support of its application, the applicant contends that the Commission infringed essential procedural requirements, as it failed to consult the Customs committee and only requested the applicant to intervene in the procedure at a very late stage. The applicant also invokes an alleged manifest error of assessment by the Commission of the facts in question, as well as an infringement of the Commission's duty to state reasons for its decisions. The applicant further refers to alleged infringements of the principle of good administration and its rights of defence on the grounds that the Commission has failed to examine carefully and impartially all relevant aspects of the case. Finally, the applicant invokes an alleged infringement of the principle of proportionality, since its application was rejected even though the Commission and the Portuguese authorities had started an investigation to discover whether the operations in questions constituted smuggling.


title: Case C-117/09 P: Appeal brought on 31 March 2009 by Kronoply GmbH, formerly Kronoply GmbH & Co. KG, against the judgment delivered by the Court of First Instance (Fifth Chamber) on 14 January 2009 in Case T-162/06 Kronoply GmbH & Co. KG v Commission of the European Communities

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/26

         Appeal brought on 31 March 2009 by Kronoply GmbH, formerly Kronoply GmbH & Co. KG, against the judgment delivered by the Court of First Instance (Fifth Chamber) on 14 January 2009 in Case T-162/06 Kronoply GmbH & Co. KG v Commission of the European Communities
   (Case C-117/09 P)
   2009/C 141/47
   Language of the case: German

      Parties

      Appellant: Kronoply GmbH, formerly Kronoply GmbH & Co. KG (represented by: R. Nierer und L. Gordalla, Rechtsanwälte)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought

               1.

               Set aside the judgment of the Court of First Instance (Fifth Chamber) of 14 January 2009 in Case T-162/06;

               2.

               annul the Commission’s decision of 21 September 2005 on State aid No C 5/2004 (ex N 609/2003) by which the Commission declares the State aid which Germany is planning to implement for the appellant to be incompatible with the common market;

               3.

               in the alternative to (2), refer the matter back to the Court of First Instance;

               4.

               order the Commission to pay the costs of the proceedings at first instance and of the appeal, in particular the costs of the applicant/appellant.

      Pleas in law and main arguments

   This appeal relates to the judgment of the Court of First Instance dismissing the appellant’s application for annulment of the Commission’s decision of 21 September 2005 by which the State aid which Germany is planning to implement for Kronoply GmbH & Co. KG is declared to be incompatible with the common market. According to the judgment under appeal, the Commission was right to hold that the aid at issue did not require the beneficiary either to pay consideration or to contribute to an objective in the common interest; in consequence, it was operating aid intended to cover the running costs and could not be authorised. In the Court’s view, the aid at issue was not necessary because it was intended solely for the construction of a production plant which had, however, already been the subject of an earlier notification, and because the investment project had already been completed by means of the aid authorised following that earlier notification long before the notification of the aid at issue.
   The appeal is brought on the basis that the judgment under appeal is incompatible with Article 87(3)(a) and (c) EC, with the Guidelines on national regional aid issued pursuant thereto, and with the 1998 multisectoral framework on regional aid for large investment projects. Accordingly, the principles of the protection of legitimate expectations and equal treatment have also been infringed by the Court.
   Article 87(3)(a) and (c) EC has been infringed in so far as the Court incorrectly interpreted and assessed the criterion of necessity and the incentive effect.
   As far as the assessment of the necessity of the aid at issue is concerned, the Court unlawfully restricts the scope of application of Article 87(3) EC in so far as it errs in law in assuming that an aid recipient can notify aid in respect of an investment project only once, and that each further notification must relate to a new investment project. In addition, the Court focussed in its assessment of necessity on a point in time which was of no consequence at all as far as the appellant’s decision to invest was concerned, and over which, moreover, the appellant could not have had any control. The relevant date, according to the Commission and the Court, was the date on which the aid at issue was notified to the Commission by the Member State. However, by its application to the national authorities for aid to be implemented, the appellant had already done everything that was required and in its power to establish necessity. The date on which the aid is notified to the Commission is outside the appellant’s control. The stance taken by the Court and the Commission would — if taken to its logical conclusion — mean that the necessity of implementing aid would have to be disclaimed in respect of all investment projects if a decision by the Commission on the compatibility or incompatibility of the proposed aid with the common market were to be taken only after the completion or termination of the investment project.
   Further, it should be noted that the appellant was not in a position directly to challenge the Commission’s decision regarding the aid originally notified. Where the Commission declares aid to be compatible with the common market, but to an extent that does not correspond to the amount which the recipient requested from the national authorities, the recipient cannot successfully challenge the Commission’s decision in his favour before the Court of First Instance. The period of time between the first decision of the Commission approving the original aid and the notification of the aid at issue is therefore attributable to the fact that the appellant availed itself of what it regarded as the legal remedies which it was entitled to use to challenge the Commission’s letter refusing to amend its first authorisation decision. The fact that the Federal Republic of Germany consequently notified the aid at issue only after the investment project was completed is due solely to the fact that there was an intervening dispute about the categorisation of the letter from the Commission referred to above. The argument that the investment project had since been completed cannot, therefore, serve as a basis for the assessment of necessity.
   As regards the criterion of incentive effect, the Court expressly left consideration of that issue open. Even if, contrary to the appellant’s view, necessity and incentive effect are regarded as being two distinct requirements for the authorisation of aid, both have been met in this case.
   The third subparagraph of point 4.2 of the Guidelines on national regional aid provides that the criterion of incentive effect is satisfied if the application for aid is submitted before work is started on the project. As stated above, it is only the application for aid that is submitted to the national authorities that can be relevant in that regard. The appellant submitted the application before work was started on the project and thus satisfied that criterion. The Court failed to take this into account, thereby infringing not only Article 87 EC but also the Guidelines for national regional aid.
   The judgment under appeal also infringes the multisectoral framework on regional aid and the principle of equal treatment in so far as the Court endorsed the Commission’s inconsistent application of the market assessment. During the notification procedure in respect of the original aid, the Commission had indicated that it would assess the ‘state of competition’ factor in respect of the relevant product market as being 0.75; however, only approximately three weeks later, it assessed the same relevant market differently in another decision and deemed a ‘state of competition’ factor under the multisectoral framework of 1.0 to be appropriate. Even though the Commission has a wide margin of discretion in its economic assessment of the facts, that margin is nevertheless curtailed by the fact that the markets for the same goods are the same, particularly where the markets for the same group of products are assessed within a period of three weeks.
   Finally, the Court committed a further error of law by entirely disregarding the appellant’s argument that it was obliged to complete the investment project within 36 months of submission of the application. If the appellant had failed to comply with that obligation, it would have lost all of the aid. The appellant cannot be criticised for having complied with that obligation. That is an infringement of Article 87 EC, as well as of the principle that the Commission must adhere to the rules on dealing with aid that the Commission itself has adopted and implemented.


title: Case C-587/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 December 2010 — Vogtländische Straßen- Tief und Rohrleitungsbau GmbH (VSTR) v Finanzamt Plauen; other participant: Bundesministerium der Finanzen

text:
               12.3.2011

               EN

               Official Journal of the European Union

               C 80/10

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 December 2010 — Vogtländische Straßen- Tief und Rohrleitungsbau GmbH (VSTR) v Finanzamt Plauen; other participant: Bundesministerium der Finanzen
   (Case C-587/10)
   2011/C 80/19
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: VSTR Vogtländische Straßen- Tief und Rohrleitungsbau GmbH (VSTR)

      Defendant: Finanzamt Plauen

      Intervening party: Bundesministerium der Finanzen

      Questions referred

               1.

               Does Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes (1) allow the Member States to accept an intra-Community supply as tax-exempt only where the taxable person provides evidence in the accounts of the VAT identification number of the person acquiring the goods?

               2.

               Is it relevant to the answer to that question:
               that the person acquiring the goods was a trader with its seat in a third State, which admittedly dispatched the object of the supply in the course of a chain transaction from one Member State to another Member State, but is not registered for VAT purposes in any Member State,
               and
               whether the taxable person has proved that the person acquiring the goods submitted a tax return concerning the intra-Community acquisition.

      (1)  OJ 1977 L 145, p. 1.


22 . 6 . 96         I EN |                   Official Journal of the European Communities                              No C 180/27
      Removal from the register of Case C-294/94 ( x )                        Removal from the register of Case C-230/95 (')
                           ( 96/C 180/64 )                                                           96/C 180/68 )
By order of 12 March 1996 , the President of the Court of               By order of 19 March 19 96 , the President of the Court of
Justice of the European Communities ordered the removal                 Justice of the European Communities ordered the removal
from the register of Case C-294/94 ( reference for a                    from the register of Case C-230/95 : Council of the European
preliminary ruling from the Juzgado Central de lo Penal de              Union v . European Parliament.
la Audiencia Nacional ): criminal proceedings against Luis
Carlos Quintanilha .                                                    (>) OJ No C 208 , 12 . 8 . 1995 .
(') OJ No C 351 , 10 . 12 . 1994 .
                                                                              Removal from the register of Case C-256/95 ( ] )
                                                                                ( 96/C 180/69 )
       Removal from the register of Case C-310/94 ( 1 )                 By order of 19 March 1996 , the President of the Court of
                            ( 96/C 180/65 )                             Justice of the European Communities ordered the removal
                                                                        from the register of Case C-256/95 : Commission of the
By order of 16 January 1996 , the President of the Second               European Communities v. French Republic .
Chamber of the Court of Justice of the European
Communities ordered the removal from the register of Case               (') OJ No C 248 , 23 . 9 . 1995 .
C-310/94 ( reference for a preliminary ruling from the
Tribunal de Commerce de Saintes ): Garage Ardon SA,
Bernard Martin — Garage Colin-Martin, Relais de
Saintonge SARL and Bernard Menet SARL v . Garage                              Removal from the register of Case C-318/95 ( )
Trabisco SA .
                                                                                ( 96/C 180/70
C ) OJ No C 380, 31 . 12 . 1994 .                                       By order of 14 March 1996 , thue President of the Court of
                                                                        Justice of the European Communities ordered the removal
                                                                        from the register of Case C-318/95 : Commission of
                                                                        European Communities v. Ireland .
        Removal from the register of Case C-20/95 ( )                   (•) OJ No C 333 , 9 . 12 . 1995 .
                            ( 96/C 180/66 )
By order of 12 March 1996 , the President of the Court of
Justice of the European Communities ordered the removal                       Removal from the register of Case C-374/95 (')
 from the register of Case C-20/95 ( reference for a                                                  96/C 180/71
preliminary ruling from the Juzgado Central de lo Penal de
 la Audiencia Nacional ): criminal proceedings against Oscar            By order of 12 March 1996 , the President of the Court of
Weg.                                                                    Justice of the European Communities ordered the removal
 (') OJ No C 74 , 25 . 3 . 1995 .
                                                                         from the register of Case C-374/95 ( reference for a
                                                                        preliminary ruling from the Southampton Industrial
                                                                        Tribunal ): James Paul Barker v . Service Children's
                                                                         Schools .
                                                                         (') OJ No C 31 , 3 . 2 . 1996 .
        Removal from the register of Case C-33/95 ()
                             ( 96/C 180/67 )
 By order of 20 March 1996 , the President of the Court of
                                                                              Removal from the register of Case C-381/95 ( )
Justice of the European Communities ordered the removal
 from the register of Case C-33/95 ( reference for a                                                ( 96/C 180/72 )
 preliminary ruling from the Tribunal de Grande Instance de
 Saint-Nazaire ): SARL Polypièces v. Directeur des Services              By order of 27 March 1996 , the President of the Court of
 Fiscaux de Loire-Atlantique .                                          Justice of the European Communities ordered the removal
                                                                         from the register of Case C-381 /95 : Commission of
 (') OJ No C 74, 25 . 3 . 1995 .                                         European Communities v. Kingdom of Spain .
                                                                         (') OJ No C 31 , 3 . 2 . 1996 .


title: Action brought on 29 September 1997 by Eleonore Orthmann against the Commission of the European Communities (Case T-261/97)

text:
c 370/8               EN                  Official Journal of the European Communities                                    6 . 12 . 97
Action brought on 29 September 1997 by Eleonore                      So far as concerns the provision, in the present case, of the
Orthmann against the Commission of the European                      degree requirement, the applicant claims that the
                          Communities                                cumulative requirement of a university degree and
                       ( Case T-261 /97 )                            equivalent experience is contrary to the staff Regulations
                                                                     and introduces an unlawful restriction in respect of those
                         ( 97/C 370/ 18 )                            candidates who are eligible for the vacant post because
                                                                     they have proven experience in the duties to be
                                                                     undertaken .
                (Language of the case: Italian)
An action against the Commission of the European                     As regards the failure to provide a statement of reasons
Communities was brought before the Court of First                    for the rejection of the candidature, the applicant insists
Instance of the European Communities on 29 September                 that it appears unfair to have to wait until a reply is made
1997 by Eleonore Orthmann, represented by Giuseppe                   to the complaint in order to learn the reasons for the
Marchesini, of the Vicenza Bar, with an address for service          authority's rejection of the candidature .
in Luxembourg at the Chambers of Ernest Arendt, Rue
Mathias Hardt .                                                      Finally, she affirms that the appointment of the candidate
                                                                     by the administrative authority is contrary to the wording
The applicant claims that the Court should:                          of the notice in issue inasmuch as the appointee was not a
                                                                     member of the Commission 's staff and had an external
                                                                     employment relationship only with it .
— annul the decision whereby the applicant's candidature
     was excluded in the context of vacancy notice COM/
     R/5603/96 ,
— annul the 'appel a manifestation d'interef ( call for
     expressions of interest ) inasmuch as it is contrary to         Action brought on 29 September 1997 by Dr Anthony
     Article 29 of the Staff Regulations and, so far as              Goldstein against the Commission of the European
     concerns Post NPPR/2027/96, on the ground that it                                          Communities
     imposes a double requirement for admission,                                             ( Case T-262/97)
                                                                                ( 97/C 370/ 19 )
— annul the appointment of Gabriela Christ either on the
     ground of the procedure followed in the present case
     or because the applicant was not a member of staff of                            (Language of the case: English)
     the Commission,
                                                                     An action against the Commission of the European
— make an appropriate order as to costs .                            Communities was brought before the Court of First
                                                                     Instance of the European Communities on 29 September
                                                                      1997 by Dr Anthony Goldstein, represented by Raymond
Pleas in law and main arguments adduced in support:                  St John Murphy of Merriman White, Solicitor, 3 King's
                                                                     Bench Walk, Inner Temple, London .
The applicant, an official in Category B at the Joint
 Research Centre in Ispra , contests the rejection of her            The applicant claims that the Court should :
candidacy for a vacant post involving duties which she
 had been carrying out for years in the Einecs Committee,
 but which was reclassified in Category A. Since no                  — order the defendant to pay compensation for the
 appointment was made following the vacancy notice, the                   damage suffered by him to be determined by the Court
 Commission, by means of the ' appel a manifestation                      ex aequo et bono or by an expert together with
 d'interef, called for the submission of candidatures for a               default interest at a rate to be fixed by the Court,
 large number of posts, among which was listed the
 abovementioned post under Category A. The applicant                  — order the defendant to pay the costs .
 states that she was put at a particular disadvantage by the
 reintroduction of the requirement of a chemistry degree .
                                                                      Pleas in law and main arguments adduced in support:
 She maintains in this respect that the Commission could
 not prevent an official in Category B from being                     In 1993 the applicant, a Community medical specialist in
 appointed to a post in Category A given that in the                  rheumatology, submitted to the Commission under
 context of scientific or technical posts Article 98 , which is       Article 3 ( 2 ) of Council Regulation No 17 an application
 a provision specifically intended for officials in, scientific       for a finding that the General Medical Council, a
 or technical posts, derogates from the provisions of                 statutory body which regulates the medical profession in
 Article 45 of the Staff Regulations, according to which              the territory of the United Kingdom, had infringed
 promotion from one category to another may only be                   Articles 85 and 86 of the EC Treaty. At the same time as
 awarded on the basis of a competition .                              the complaint the applicant requested interim measures


title: JUDGMENT OF THE COURT (Sixth Chamber) of 19 October 1995 in Case C-111/94 (reference for a preliminary ruling from the Tribunale Civile e Penale di Milano): non-contentious proceedings brought before that court by Job Centre Coop. arl (Natonal legislation prohibiting private undertakings from providing job placement for workers - Lack of jurisdiction of the Court)

text:
25 . 11 . 95          EN                 Official Journal of the European Communities                                No C 315/7
               JUDGMENT OF THE COURT                                     restrictions applicable during the period prior to the
                       ( Sixth Chamber)                                  entry into force of the Electricity Law and declared the
                                                                         application inadmissible on that point.
                     of 19 October 1995
in Case C-19/93 P: Rendo NV and Others v. Commission of
                the European Communities (')                        2 . The remainder of the appeal is dismissed.
 (Competition — Agreement impeding imports and exports
of electricity — Commission decision — Partial abstention
from ruling on the compatibility of the agreement with              3 . The case is referred back to the Court of First
                 Article 85 (1) of the Treaty)                           Instance.
                         ( 95/C 315/12 )
                                                                    4 . The parties are ordered to bear their own costs in these
                                                                         proceedings.
                (Language of the case: Dutch)
                                                                    (') O J No C 71 , 13 . 3 . 1993 .
(Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                                JUDGMENT OF THE COURT
In Case C-19/93 P : Rendo NV, a company incorporated                                          ( Sixth Chamber )
under Netherlands law, established in Hoogeveen
                                                                                of 19 October 1995
( Netherlands ), Centraal Overijsselse Nutsbedrijven NV, a
company incorporated under Netherlands law, established             in Case C-l 11/94 ( reference for a preliminary ruling from
in Almelo ( Netherlands ), Regionaal Energiebedrijf Salland         the Tribunale Civile e Penale di Milano ): non-contentious
NV, a company incorporated under Netherlands law,                   proceedings brought before that court by Job Centre Coop,
established in Deventer ( Netherlands ), all represented by                                          arl ( 1 )
T. R. Ottervanger, of the Rotterdam Bar, with an address            (Natonal legislation prohibiting private undertakings from
for service in Luxembourg at the Chambers of S.                    providing job placement for workers — Lack ofjurisdiction
Oostvogels, 1 3 Rue Aldringen, appeal against the judgment                                       of the Court)
of the Court of First Instance of the European Communities
( First Chamber ) of 18 November 1992 in Case T- 16/91                                          ( 95/C 315/ 13 )
Rendo and Others v. Commission ( 1992 ) ECR 11-2417 ),
seeking to have that judgment set aside , the other party to
the proceedings being: Commission of the European                                   (Language of the case: Italian)
Communities (Agent: B. J. Drijber ), supported by
Samenwerkende elektriciteits-produktiebedrijven NV, a
company incorporated under Netherlands law, established             (Provisional translation; the definitive translation will be
in Arnhem ( Netherlands ), represented by M. van Empel and                   published in the European Court Reports)
O. W. Brouwer, of the Amsterdam Bar, with an address for
service in Luxembourg at the Chambers of M. Loesch, 8 Rue
Zithe — the Court ( Sixth Chamber ), composed of: C. N.             In Case C-l 11 /94 : reference to the Court under Article 177
Kakouris, President of the Chamber, F. A. Schockweiler              of the EC Treaty from the Tribunale Civile e Penale di
( Rapporteur ), P. J. G. Kapteyn , J. L. Murray and H.              Milano ( Civil and Criminal District Court, Milan ), Italy, for
Ragnemalm, Judges; Advocate-General : G. Tesauro;                   a preliminary ruling in the non-contentious proceedings
Registrar : L. Hewlett, Administrator, has given a judgment         ( giurisdizione volontaria ) brought before that court by Job
on 19 October 1995 , in which the operative part is as              Centre Coop , arl — on the interpretation of Articles 48 , 55 ,
follows :                                                           59 , 60, 66 , 86 and 90 of the EC Treaty — the Court ( Sixth
                                                                    Chamber ), composed of: G. F. Mancini , acting as President
                                                                    of the Chamber, F. A. Schockweiler, P. J. G. Kapteyn
                                                                    ( Rapporteur ), J. L. Murray and H. Ragnemalm, Judges;
                                                                    M. B. Elmer, Advocate-General ; L. Hewlett, Administrator,
1 . The judgment of the Court of First Instance of                  for the Registrar, gave a judgment on 19 October 1995 , the
      1 8 November 1 992 in Case T- 16/91 is set aside in so far    operative part of which is as follows :
     as it held that Commission Decision 91 /50/EEC of
      16 Janury 1991 relating to a proceeding under Article 85
     of the EEC Treaty (IV/32.732 — IJsselcentrale (IJC)            The Court of Justice of the European Communities has no
     and Others) had had no legal effect as regards the import      jurisdiction to answer the questions raised by the Tribunale
 ---pagebreak--- No C 315/8            EN                     Official Journal of the European Communities                                   25 . 11 . 95
Civile e Penale di Milano in its order for reference of                                JUDGMENT OF THE COURT
31 March 1994 .
                                                                                ( Sixth Chamber)
                                                                                of 19 October 1995
(') OJ No C 161 , 11 . 6 . 1994 .                                       in Case C-137/94 ( reference for a preliminary ruling from
                                                                        the Divisional Court of the Queen's Bench Division of the
                                                                        High Court of Justice of England and Wales ): The Queen v.
                                                                        Secretary of State for Health, ex-parte Cyril
                                                                                Richardson (')
                                                                        (Equal treatment for men and women — Exemption from
                                                                        prescription charges — Scope of Directive 79/7/EEC —
                                                                        Link with pensionable age — Temporal effects of
             JUDGMENT OF THE COURT                                                                   judgment)
                       ( Fourth Chamber )                                                         ( 95/C 315/ 15 )
                    of 19 October 1995
in Case C-128/94 ( reference for a preliminary ruling from
                                                                                (Language of the case: English)
the Bundesverwaltungsgericht ) Hans Honig v. Stadt
                            Stockach ( ! )
(Directive 88/166/EEC — Minimum standards for the
      protection of laying hens kept in battery cages)                  In Case C-137/94 : reference to the Court under Article 177
                                                                        of the EC Treaty from the Divisional Court of the Queen 's
                          ( 95/C 315/14 )
                                                                        Bench Division of the High Court of Justice of England and
                                                                        Wales for a preliminary ruling in the proceedings pending
                                                                        before that court between the Queen and the Secretary of
              (Language of the case: German)                            State for Health, ex-parte Cyril Richardson — on the
                                                                        interpretation of Council Directive 79/7/EEC of
                                                                        19 December 1978 on the progressive implementation of
(Provisional translation; the definitive translation will be            the principle of equal treatment for men and women in
        published in the European Court Reports)                        matters of social security ( OJ 1979 L 6 , p. 24 ) — the Court
                                                                        ( Sixth Chamber ), composed of: C. N. Kakouris, President of
                                                                        the Chamber, F. A. Schockweiler ( Rapporteur ), P. J. G.
In Case C-128/94 : reference to the Court under Article 177
                                                                        Kapteyn, J. L. Murray and H. Ragnemalm, Judges; M. B.
of the EC Treaty by the Bundesverwaltungsgericht for a                  Elmer , Advocate-General ; L. Hewlett, Administrator, for
preliminary ruling in the proceedings pending before that               the Registrar, gave a' judgment on 19 October 1995 , in
court between Hans Honig and Stadt Stockach — on the                    which it ruled :
interpretation of Article 3 ( 1 ) ( a ) of the Annex to Council
Directive 88/ 166/EEC of 7 March 1988 complying with the
judgment of the Court of Justice in Case 131 /86 ( annulment
of Council Directive 86/ 113/EEC of 25 March 1986 laying                 1 . Article 3 (1 ) of Council Directive 79/7/EEC of
down minimum standards for the protection of laying hens                     19 December 1978 on the progressive implementation
kept in battery cages ) ( OJ 1988 L 74, p. 83 ) — the Court                  of the principle of equal treatment for men and women
( Fourth Chamber ), composed of: C. N. Kakouris, President                   in matters of social security is to be interpreted as
of the Chamber, P. J. G. Kapteyn ( Rapporteur ), and J. L.                   meaning that a system such as that established by
Murray, Judges; Advocate-General : P. Leger, Registrar:                      Regulation 6 (1 ) of the National Health Service
H. A. Riihl, Principal Administrator, gave a judgment on                     (Charges for Drugs and Appliances) Regulations 1989,
 19 October 1995 , the operative part of which is as                         exempting various categories of persons, in particular
follows :                                                                    certain old people, from prescription charges falls
                                                                             within the scope of the Directive.
Article 3 (1 ) (a) of the Annex to Council Directive
88/1 66/EEC of 7 March 1 988 complying with the judgment
of the Court of Justice in Case 131 /86 (annulment of                   2 . Article 7 (1 ) (a) of Directive 79/7/EEC does not allow a
 Council Directive 86/113/EEC of 25 March 1986 laying                        Member State which, pursuant to that provision, has set
down minimum standards for the protection of laying hens                     the pensionble age for women at 60 years and for men at
kept in battery cages) is to be interpreted as permitting                    65 years also to provide that women are be exempt from
Member States to lay down stricter national rules regarding                  prescription charges at the age of 60 and men only at the
                                                                             age of 65.
cage area for laying hens kept in battery cages.
    OJ No C 174, 25 . 6. 1                                               ^ There is no reason to limit the temporal effect of this
                                                                             judgment, so that the direct effect of Article 4 (1 ) of
                                                                             Directive 79/7/EEC may also be relied on to support
                                                                             claims for damages in respect ofperiods prior to the date


title: Case C-442/06: Action brought on 26 October 2006 — Commission of the European Communities v Italian Republic

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/35

         Action brought on 26 October 2006 — Commission of the European Communities v Italian Republic
   (Case C-442/06)
   (2006/C 326/74)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: D. Recchia and M. Konstantinidis, Agents)

      Defendant: Italian Republic
   Form of order sought

               —

               declare that, by adopting and maintaining in force Legislative Decree No 36 of 13 January 2003, as amended, which transposes into national law Directive 1999/31/EC (1) in a manner inconsistent with the directive itself, the Italian Republic has failed to fulfil its obligations under Articles 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste;

               —

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   Following receipt of a complaint, the Commission examined whether the national legislation complied with Directive 1999/31/EC. The non-compliance found by the Commission is due to late transposition by the Italian Republic. The directive provides for two distinct legal regimes, depending on whether new or existing landfill sites are at issue. Because of the late transposition effected by the Legislative Decree some landfill sites which should have been subject to the regime laid down for new landfill sites are instead subject to the regime laid down for existing landfill sites.

      (1)   OJ L 1999 182, p. 1.